Porn is Free Speech at Public Libraries (Page 4)

So what you  are argueing is that all public libraries should filter the internet all the time and not allow adults to bypass the filters?

I just want to make sure I am clear on your position.

No, not at all.  I'm suggesting that if a library establishes a policy that it will not provide access to certain portions of the internet on library computers, then that is not a violation of a patron's 1A rights.

 ETA: This isn't the policy I would suggest.  I like the "take reasonable steps to prevent those who don't want to view/hear it from having to view/hear it" approach.

The question is not "is porn a 1A right".  I thin most would agree it is.  The question is "are your rights being trampled by a library NOT allowing you to view porn on their machines".  I think that is a major stretch of the definition of the 1A.

I have a right to drink alcohol.  However if I walk into a library with a beer in my hand I'm going to be asked to leave.  That does not mean that my basic right to drink alcohol is being infringed upon.

On the other hand, consider the circumstances of you walking into the same library with a beer, but this time you enter along with a person drinking whiskey and another drinking wine.

The library says that you, and you alone, are unable to partake of your choice because they deem beer to be unacceptable.  They do not deem ALL alcohol to be unacceptable but only beer. 

In that scenario, you ARE being infringed because you are being discriminated against based solely on your choice of beverage.

So, how does this translate to someone having a 1A right to view pornography (for purposes of this discussion) in a library?

Let me try and re-state my analogy to make it more direct.

On the other hand, consider the circumstances of you walking into the same library with a beer (seeking pornography), but this time you enter along with a person drinking whiskey (seeking white supremacist literature) and another drinking wine (seeking communist revolutionary manifestos).

The library says that you, and you alone, are unable to partake of your choice because they deem beer (pornography) to be unacceptable.  They do not deem ALL alcohol (potentially objectionable but protected content) to be unacceptable but only beer (pornography). 

In that scenario, you ARE being infringed because you are being discriminated against based solely on your choice of beverage (content based discrimination against pornography).

As I've stated previously, the issue is not the right to view pornography, in and of itself, within a library.  The issue is the right to obtain equal access to all free speech material without content-based discrimination.

The same reasoning would hold if Dr Suess websites were considered objectionable while Curious George websites were considered acceptable.  Should I be restricted from accessing Dr Seuss material on the same platform and in the same manner as I access Curious George material?

I've yet to get a direct answer to the question I've posed a few times.  If a library puts filters on its computers that prevent access to pornography, have they violated my 1A rights?

Yes, if the library determined that it violated a policy.  They don't have to provide internet access at all.

I do not see how this is geramine.  If that is required to prove hostile work environment then male workers could post whatever pornagraphic material in common areas such as a break room (as long as mgmt does not disallow that is) and it would not be considered a hostile work envronment because both genders could view it.  Note the same could be said if the women post pics of naked men in said break room. 

I do believe the quote means that both of the above mentioned scenarios are considered a hostile work envirmonment and treated equally.

If the library chooses not to provide any internet access to any material, then you are correct, there is no infringement. 

Restriction is very different from complete absence.

It is the implementation of a restriction that causes the issue.

Let me step back and try and break down my reasoning, based on what I read.

In order for there to be an EEOC violation, there must be a discriminatory act.  In this specific topic, we are assuming sexual discrimination alone.

By my understanding, in order for there to be discrimination, there must first be a hostile work environment.  The HWE is necessary but not sufficient to establish discrimination.  You can have a HWE without it being discriminatory where both sexes can be considered equally harassed.  (That is paragraph 2 of my previous statement.)

In order for there to be a HWE, the conditions of harassment must be severe and consistent with regard to the complete circumstances. (That is paragraph 1 of my previous statement.)

Your initial hypothetical was the condition of a female librarian being subjected to pornographic material of even a limited amount.  A limited amount does not satisfy the condition of severe and persistent.

If a set of patrons chose to access pornography frequently over a sustained period (determinant of the specific circumstances), then I would agree that the conditions become severe and persistent to create a HWE. 

However, without discrimination within that HWE, there is no federal EEOC discrimination claim but there may be an alternate claim under the individual state law.

[added: 

Let me alter the hypothetical a bit.  If that same set of patrons as before chose to access the same pornography with the same frequency and over the same sustained period, but purposely did it ONLY when female librarians were present (assuming there is an even balance of male and female librarians employed in this specific library), then there would be a basis for both a HWE and a discriminatory environment.  Those two elements combined would make it possible for an EEOC claim to proceed.

]

not severe and persistent -> no HWE -> no discrimination -> no EEOC claim

severe and persistent -> HWE + no discrimination -> no EEOC claim (possible alternate claim)

severe and persistent -> HWE + discrimination -> EEOC claim

Does that clarify what I was trying to communicate?

[edited for grammar and content]

Yes but I do believe sexual harassment is a separate issue from sexual discrimination and that HWE has been an actionable form of sexual harassment in it's own right since the 1980's I believe.  As for severe and persistant is that not at least a subjective judgment and the harassed does not have to be the direct subject of that objectionable behavior.

I can walk in with a coffee... They allow this because they know that there is little chance I'm going to get drunk on Starbucks and possibly cause an issue with other patrons.  The same logic applies for pornography vs other internet content.

Rights do not mean you can do what you want at the risk or others. (the old "fire in a theater" clause)

EEOC actually lumps them together and considers harassment a form of discrimination.

(http://www.eeoc.gov/laws/types/sex.cfm)

You are correct that the severe and persistent condition is subjective as outlined in the Henson ruling: "Whether sexual harassment at the workplace is sufficiently severe and persistent to affect seriously the psychological well being of employees is a question to be determined with regard to the totality of the circumstances."

The EEOC takes a similar position on harassment: "Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment..."

I didn't realized they lumped them together but the idea still stands.  Just because both males and females can view the material does not make it not sexual harassment.  A coworker watching porn on their computer even in the confines of their cubicle can be considered a hostile work environment and would likely be won by the complaintant.  How is this really that different.

When you bring up the "fire in a theater" circumstance, you are shifting the argument into the area of non-protected speech.  I agree that you do not have the right to access material of a nature that is judged as obscene by a court because that material would be established as non-protected speech.

The problem becomes that, in an effort to weed out potentially non-protected speech, you are discriminating in a manner that restricts access to protected speech merely on the potential that non-protected speech may be accessed.  That is infringement unless you are able to demonstrate that specific material accessed was non-protected.

If a library installs a filtering system that manages and eliminates the ability to access only that type of pornography that is judged to be obscene, then I have no issue with the restriction because you are only restricting access to a class of non-protected speech.

Do you have a particular case you can point me to?  You're getting into an area where I'd have to see the specific facts because "can" something like watching porn in an office create a hostile work environment?  Yes, but it would depend on the specific facts.

My guess is that you are envisioning the anecdotal situation where someone pulls up porn on their computer and is subsequently fired for sexual harassment.  In that case, you are dealing with the breach of a corporate policy and how a specific company defined sexual harassment, such as a zero-tolerance policy. 

Corporate policy applications are different from the legal application of sexual harassment.

Actually I am remembering an number of cases from the 80's or there about where women won sexual harassment cases on basically that basis.  I cannot tell you the exact cases as I no longer remember but there was one where male coworkers had calenders of very scantily clad women up in their work stations ( it was a garage or machine shop of some sort) and the women complained and won their case.  I do recall there were others because it was news in the 80's and there were discussions about expanding the definition of sexual harassment to include hostile work environment not just quid pro quo.

Have you seen a library budget.  They are getting cut every year.  No need for Juggs Magazine subscription when you can look at it for free on the internet.   Just sayin'

Don't get me wrong, I don't want my kids looking at porn at a library but I don't want the government starting there and no telling where they stop.  Back to the banned books if some people had their way.  There is legit reason for this being unblocked for research.  Like I said it was okay when I was in college until somebody complained about it and you were forced to justify it for academic research.  Perhaps that could be instituted here. 

To my knowledge nobody snitched on anybody "looking" at porn in college in the computer labs.

A quick search for what i was looking for instead produced this website which seems to have a good explanation and references.

http://www2.law.ucla.edu/volokh/harass/breadth.htm#T17

including the following sections:

   Art and Music:  Likewise, art or music that is seen as politically offensive, misogynistic, or sexually themed can lead to harassment liability.  A U.S. Court of Appeals in Slayton v. Ohio Dep't of Youth Services, for instance, upheld a $125,000 damages award based in part on a coworker's playing "misogynistic rap music" and displaying "music videos depict[ing] an array of sexually provocative conduct." 52

              The injunction in another case barred the possession or display of any "sexually suggestive, sexually demeaning, or pornographic" 53 materials in the workplace, defining "sexually suggestive" as covering anything that "depicts a person of either sex who is not fully clothed . . . and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body."  This would clearly cover a wide variety of art, and might actually send people to jail -- one form of sanction for violation of a court order -- for possessing and display Gauguin prints.  And I describe below many instances in which harassment complaints were brought based on legitimate art, from Goya to New Yorker cartoons, but which never came to court because employers, faced with the risk of liability, ordered the art taken down. 

and

  Frequency:  Finally, the "severe or pervasive" requirement does not require that the offensive speech happen daily or weekly.  Some cases have held that even a single incident of speech -- for instance, one racial slur by a supervisor, or a "single incident of verbal abuse and negative comment concerning Japanese people" -- may be "severe or pervasive." 56  Brown Transport, discussed above, was based on biweekly paychecks.  Dernovich was based on sexually themed jokes that were distributed about every two weeks.  Schwapp involved an average of one offensive statement every two months; if one counts only statements heard personally by the plaintiff, the rate was one every five months.  Danco, Inc. v. Wal-Mart Stores, Inc., a First Circuit case, affirmed a harassment finding based on three incidents: two personal slurs (one including a threat), plus the words "White Supremacy" spray-painted in a parking lot. 57

Seems to me even the courts are not sure and disagree on what does and does not constitute sexual harassment.