Exclusions of Sex Offenders and Federal Depository Libraries

Prof. Doug Berman (Sentencing Law & Policy) points to a Tennessee county’s decision to exclude registered sex offenders from its public libraries. I think the decision doesn’t violate the First Amendment (see this post below), but I wonder whether it might violate federal rules when the library gets benefits under the Federal Depository Library program. According to the government’s regulations for the program,

Depository libraries must provide free access to FDLP information resources in all formats to any member of the general public without any impediments, such as age limitations, technology barriers, or residency status limitations. Providing for free access to the depository collection is a fundamental obligation of Federal depository libraries.

I can’t speak, though, to whether this regulation can be read as having an exception for policies that physically exclude registered sex offenders, whether the federal government can essentially waive this regulation in such cases if it wishes to, and whether any of the affected Tennessee county libraries participate in the Federal Depository Library program.

UPDATE: Commenter Pete the Elder points to these provisions in the regulations:

39. Depository libraries must ensure that their security or access polices, or those of their parent bodies, do not hinder public access to depository materials. Access policies, posting of signs, library Web pages, and public service hours must conform to this requirement. Signage and other physical facilities of the library and parent institution cannot inhibit public access, and all library employees must be aware of the free, public access requirements for depository resources.

40. Security measures to protect library users, staff, and collections are permitted, provided that access to depository collections is not hindered. All depository users must adhere to the same standards of behavior expected of other library users. Depository libraries have the right to bar or remove any individual who poses a threat to library staff, other patrons, or the security of their collections.

My reading is that these strengthen the case against the policies excluding sex offenders: security measures are allowed but only to the extent that “access to depository collections is not hindered,” and in context that sounds to me like access for all would-be accessors. To be sure, if an individual poses a threat, he may be barred, but it sounds like that requires some specific showing that the person is indeed a threat, and not just a claim that the person is in a high-risk category (such as sex offenders). But it might be that this would be interpreted differently, and, as I noted earlier, it might be that the federal government would be free to decide how to interpret it.