Kathryn M. Rowe, Assistant Attorney form the Office of the Attorney General of Maryland sent the following letter to Brian M. Crosby.
Dear Delegate Crosby:
You have asked for advice concerning a Drag Queen Stories event at the Lexington Park Library in St. Mary’s County (“the library”). Specifically, you have asked about the First Amendment implications of certain actions by the Board of County Commissioners (“the Board”) with respect to this event. It is my view that certain actions by the Board could be found to violate the First Amendment of the United States Constitution.
The pressure to avoid controversial events at the library did not come from the Board as a whole and was not voted on by the Board, and thus cannot be said to be an official action. If, however, the library were to refuse controversial events in order to avoid having their budget reduced, that action would most likely violate the First Amendment. As a public institution, the library is subject to the restrictions of the First Amendment. Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253, 1266 (E.D. Wis. 2000). The test for determining whether content-based regulation of speech in a public building violates the First Amendment depends upon the type of forum in question. Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 3 7 ( 1983 ). The Supreme Court has identified three distinct types of fora for the purposes of the First Amendment, which include the: (1) traditional public forum; (2) the non-public forum; and (3) the imited (designated) public forum.” ACLU Student Chapter v. Mote, 321 F.Supp.2d 670, 678 (D. Md. 2004).
Libraries are generally considered designated, or limited, public forums.1 Kreimer v. Bureau of Police for Town of Morris, 958 F.2d 1242, 1259 (3d Cir. 1992) (“library constitutes a limited public forum, a type of designated public fora”); Jaffe v. Baltimore County Bd of Library Trustees, 2009 WL 7083368 (D. Md. March 25, 2009) (“A library constitutes a limited public forum.”); Pfeifer, 91 F. Supp. 2d at 1266 (E.D. Wis. 2000) (library “opened its doors wide enough” to have created a designated public forum); Elizabeth Henslee, A Funny Thing Happened on the Way to the Public Forum: Why a Public Forum Analysis Applied to the Library Should Protect Internet Services and Delivery Services, 43 Capital University Law Review 777, 778 n. 9 (2015) (and cases cited therein).
A designated public forum consists of public property opened up for the use of the public for expressive activity. Pfeifer, 91 F. Supp. at 1259. Unlike a traditional public forum, a designation of a public forum may be revoked. Id. In addition, a designated public forum can be limited to a specific class of people or for the discussion of specific subject matter. Kreimer, 958 F.2d at 1259. These limitations may not, however, be based on viewpoint. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 131 (1981). Nor is the avoidance of controversy a valid ground for limiting speech in a limited public forum. Pfeifer v. City of West Allis, 91 F. Supp. 2d 1253, 1267 (E.D. Wis. 2000); Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 811 (1985). Instead, a limited public forum must “permit the public to exercise rights that are consistent with the nature of the Library and consistent with the government’s intent in designating the Library as a public forum.” Jaffe v. Baltimore County Bd. of Library Trustees, 2009 WL 7083368 (D. Md. March 25, 2009), citing Kreimer v. Bureau of Police for Town of Morris, 958 F.2d 1242, 1262 (3d Cir. 1992). Limits on those rights can be upheld only if they are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of information.” Jaffe v. Baltimore County Bd. of Library Trustees, 2009 WL 7083368 (D. Md. March 25, 2009).
In short, it is clear that the library cannot constitutionally deny meeting space to organizations solely because the organization or the subject matter of the meeting is controversial.
Charging the library for the police presence they did not request, and which was deemed necessary only because of the anticipated reaction of others, is also constitutionally problematic. In Forsyth County v Nationalist Movement, 505 U.S. 123 (1992), the Supreme Court held that any system of fees for public events such as parades be set based on “narrowly drawn, reasonable and definite standards,” id. at 132-133, and that it may not be based on the content or anticipated public reaction to the content of the proposed speech, id. at 134-135 (“Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”).
I have not found security cost issues or cases involving libraries, but they are common with respect to colleges and universities. The Office of the Attorney General has advised that requiring an organization to pay more for the use of public space on a college campus based on the perception of campus police that certain speech was likely to engender hostile reactions would violate the First Amendment. 78 Opinions of the Attorney General 75, 80 (1993), see also Sonnier v. Crain, 613 F.3d 436, 447-448 (5th Cir. 2010) (finding security fee at university unconstitutional); College Republicans of University of Washington v. Cauce, 2018 WL 804497 (W.D. Wash. February 9, 2018) ( unreported) (granting temporary restraining order for student group assessed fee of $17,000 for a proposed speaker. (The University ultimately settled the case, agreeing to change the policy and pay $122,500 in attorneys’ fees).
In light of these cases, it is my view that charging the library for security added based on the Sheriffs conclusion about the likelihood of opposition raises serious constitutional questions.
Kathryn M. Rowe
Assistant Attorney General
