ACLU Warns Northbrook, Highland Park Public Libraries Their Policies Are Unconstitutional

CHICAGO — Policies at public libraries that put a price tag on controversial viewpoints are unconstitutional, an attorney for the American Civil Liberties Union of Illinois notified trustees of a pair of North Shore libraries.

Rebecca Glenberg, the chief First Amendment litigation counsel for the Illinois ACLU, on Thursday issued public letters to the boards of the Northbrook Public Library and the Highland Park Public Library urging them to rescind policies that impose extra safety or security fees when protests are anticipated.

"To summarize, the library may not charge a premium on a rented room because the renter will express controversial ideas that may cause others to act badly," Glenberg said.

The letters come in response to the cancellation of a planned screening of the documentary "Israelism" in Northbrook in September. The event was to have been hosted by The Chicagoland Jewish Labor Bund and Jewish Voice for Peace and followed by a question and answer session with Jewish, Muslim and Palestinian activists. It was not sponsored or endorsed by the library.

Facing public backlash over the content of the film, library officials demanded upfront payment for outside security staff, event liability insurance and a written safety plan.

At the time, the library's director cited a policy that allows it to charge additional safety fees as needed and assured the public that it was following the First Amendment.

"As a public, government institution, the Library is bound by the laws of our country, including the U.S. Constitution and the protections guaranteed by the First Amendment, which guarantees individuals’ right to express their views, free from government interference, even when those views may challenge or provoke," Executive Director Kate Hall said. "The library will continue to uphold this Constitutional protection as it applies to all viewpoints with regard to room bookings."

But Glenberg disagreed.

"We agree that the safety of those using the library is important. But the library may not address safety concerns by imposing extra fees on constitutionally protected but controversial speech," she told the Northbrook library board. "The policy is unconstitutional, and we request that you promptly rescind it."

Highland Park library trustees unanimously adopted a new room policy on Oct. 15.

"A challenge in a neighboring community led to a discussion about freedom of expression and the understanding that if a group’s event requires additional support such as security, the Library will pass on the charges for such services to the group," according to minutes from the meeting.

The policy now provides "unbounded authority" to library staff to determine if, when and how much to charge patrons, according to Glenberg.

"Specifically, the policy gives the Executive Director unbridled discretion to require proof of insurance or to 'charge an additional fee for costs relating to security and related services,'” she told the Highland Park board.

Federal courts have repeatedly held that policies that penalize speakers based on the expected reactions of listeners are a violation of the First Amendment, Glenberg said.

She cited several key cases, including a U.S. Supreme Court case that struck down a Georgia ordinance that allowed officials to charge fees based on estimated security costs. That case resulted from the refusal of a white supremacist group to pay a $100 fee for a permit to hold a rally to protest Martin Luther King Jr. Day in 1989.

"Listeners' reaction to speech is not a content-neutral basis for regulation," Justice Harry Blackmun ruled, in Forsyth County v. Nationalist Movement. "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob."

The ACLU attorney also cited a 2011 case in the 7th Circuit Court of Appeals, Surita v. Hyde, in which Waukegan officials imposed burdens on public speech by selectively enforcing permit requirements and charging fees for protests based on their content.

"Restrictions that slip," ruled Judge Charles Clevert, "from neutral time, place, and manner concerns into concerns about content are never permitted."

Northbrook library staff provided a statement in response to Glenberg's letter, pointing out that the Northbrook Police Department had "identified security concerns" — but would not protect the library upon request.

"Following the Police Department’s response that they would not provide security, we engaged outside security services to ensure the safety of our attendees, patrons, and staff," staff said.

"We appreciate the interest of the ACLU in our Northbrook Public Library room booking process," the statement continued. "As planned previously, our Board of Trustees is engaging in a policy review to ensure our policy protects both public safety and constitutional rights without creating barriers to free expression. We expect to announce any proposed or planned updates to our meeting room policies following our board's comprehensive review."

Related:

• Israeli-Palestinian Conflict Film Will Not Show At Northbrook Library
• Northbrook Library Defends Right Of Resident To Host Film On Conflict
• Film Feud Reaches Elmhurst Public Library