Over the last few years, Massachusetts cities and towns have led the nation in adopting policies that bar registered sex offenders from entering public libraries. The goal is to protect children, but a recent federal court ruling calls the constitutionality of such bans into question.
The courts have traditionally held that the First Amendment not only protects the right to express ideas, but also the right to receive ideas. When the city of Albuquerque, N.M., banned sex offenders from using libraries in 2008, the local ACLU chapter sued, arguing that their client, a registered sex offender, has a constitutional right to use the library.
In 2009, New Mexico District Court Judge Christina Armijo agreed, and this month, the U.S. Tenth Circuit Court of Appeals in Denver upheld her ruling.
While the Tenth Circuit has no jurisdiction in the Northeast, their decision could make a compelling precedent if similar bans were to be challenged in Massachusetts.
A Terrible Crime
In Massachusetts, this all goes back to January 2008, when a registered sex offender named Corey Saunders lured a 6-year-old boy away from his mother at the New Bedford Public Library. Saunders took the boy into the stacks and raped him. The following day at a press conference, then-New Bedford Police Chief Ronald Teachman pushed back against anyone who would argue the boy's mother was to blame.
Over the last few years, Massachusetts cities and towns have led the nation in adopting policies that bar registered sex offenders from entering public libraries.
"The issue here is whether Corey Saunders should have been allowed out in society and been at that library last night, or anywhere where children are," Teachman said.
In response to the incident, New Bedford city councilors passed an ordinance barring the most serious sex offenders from setting foot inside newly designated "child safety zones," such as video arcades, swimming pools and libraries.
In the years since, at least six other Massachusetts municipalities have followed suit with similar measures: Fall River, Methuen, Quincy, Somerset, Attleboro and Lowell. Of all the governments in the nation to ban sex offenders from libraries, half of them are in Massachusetts.
Law Of The Libraries
No one has followed these developments more closely than Jennifer Ekblaw, a recent graduate of the Indiana University School of Law in Indianapolis, who took a dual master's degree in library science. While in graduate school, she looked for a topic to research that involved both fields, and in this issue, she found one.
Ekblaw is now a law librarian at Boston University. In a 38-page note published last year in the Indiana University Law Review, she looked comparatively at all of these bans around the country, and concluded that Albuquerque's policy was particularly ripe for legal challenge.
"It simply banned all registered sex offenders from all public libraries in Albuquerque," Ekblaw said. "It was very broad, and that was one of the reasons it was ultimately struck down."
In Quincy, Mass., City Solicitor Jim Timmins said officials were mindful of the constitutional pitfalls when they passed their ban in 2010.
"We couldn't necessarily ban them outright," Timmins said, "so we wrote into the ordinance a provision that they could not be present unless they had written authorization from the administrator in charge." The Methuen and Somerset bans include similar language.
The Lowell ban is the most limited of all. Registered sex offenders are only barred from the library during times when children are likely to be at the library, such as 2-6 p.m. on school days.
When city councilors passed the measure in September, they saw this Tenth Circuit ruling coming, and worked to craft a lawsuit-proof policy. Councilor Rodney Elliott said at the time, "I would like to have seen a little more strict version [but] I believe that we have to compromise."
A Fraught Issue For Librarians
Back when the ordinance passed, I asked Lowell librarian Victoria Woodly about the challenges of implementing a policy that, in effect, created designated sex offender hours at her library.
"I'm thinking we're gonna have to put up signs, I'm not exactly sure how we're gonna word them," she said, shaking her head.
Woodly said she knows of several registered sex offenders who use her library regularly. And although she supported the final ordinance adopted by the Lowell City Council, she admits to a certain discomfort with the idea of limiting access to the library, for anyone. And she's not alone.
Deborah Caldwell-Stone, deputy director of the American Library Association's Office for Intellectual Freedom, said her organization has reservations about excluding registered sex offenders from libraries.
"There's a deep concern because of public libraries historically being places where people could access information, where it's a place of self-education, where people can literally reform themselves," Caldwell-Stone said.
The ALA is still formulating an official position on the issue, but Caldwell-Stone said they'll take into account the fact that some registered sex offenders are not sexually violent predators.
"Instead it's the teenager who got caught sexting, it's the older teen who dated a younger teen," she said.
In Massachusetts, A More Tailored Approach
But Ekblaw points out that in Massachusetts, the law distinguishes between violent and non-violent offenders, and those most likely to re-offend.
"There's Level 1, 2 and 3," Ekblaw said, "so a lot of the bans here in Massachusetts only apply to Level 2 or 3 sex offenders, as opposed to the lowest level. And in that one way, they're more narrowly tailored, and would be more likely to withstand constitutional scrutiny."
That's because of something in First Amendment law called the Ward Test, commonly referred to as "time, place and manner restrictions." Courts have established that government can put constraints on speech as long as they are narrowly tailored and serve some kind of compelling state interest, like protecting children from known pedophiles.
In the Albuquerque case, city lawyers didn't think they had to spell out exactly what public interest their policy served — an apparent error in legal strategy that Timmins said he would not repeat.
"They simply said that, you know, 'Our ordinance enjoys a presumption of constitutionality and we rest on that, and that anyone challenging it has the burden of proof,' " Timmins said, meaning a true constitutional debate over this issue has yet to occur in the courts.
There's no indication that debate is going to happen in Massachusetts anytime soon. A spokesman for the ACLU of Massachusetts said they've not been contacted by any sex offenders interested in pursuing a lawsuit.
This program aired on January 31, 2012.