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ATLANTA — When the Ohoopee Regional Library in Vidalia, Ga., set up a table in the lobby for free literature, the editor of a southeast Georgia gay rights newspaper asked if he could leave free copies of The Gay Guardian. Librarians gave Ronald Mangum permission to place his newspaper on the table. However, within a week, some library patrons had complained that they found the newspaper offensive, according to briefs filed in the Eleventh Circuit U.S. Court of Appeals. One woman even went to Vidalia City Hall to complain that her child had picked up a copy of the newspaper in the library lobby. The library’s executive director and board chairwoman then removed the table and all free publications, according to federal appellate briefs. That decision, made in March 2002, led to a federal First Amendment suit against the library system by the American Civil Liberties Union of Georgia on behalf of The Gay Guardian and Mangum, who uses the pseudonym Ronald Marcus. Gerald Weber, Elizabeth Littrell and Elizabeth Norman are the ACLU attorneys representing Mangum and The Gay Guardian. A ruling in favor of the library in November by U.S. District Judge B. Avant Edenfield in Georgia’s Southern District has prompted an appeal that ACLU attorneys are expected to argue today before a federal appellate panel in Atlanta. The argument pits the bedrock principle of the First Amendment that the government may not silence speech to avoid controversy against legal precedents granting public libraries the right to control their selection of books and other material. Earlier, Edenfield came down squarely on the side of the library. Because the library created an opportunity for free speech as an act “of largesse, not regulations,” Edenfield concluded that “the government and the public it serves, should not have to tolerate the same range of ‘outrageous’ speech that they must when the government does not provide the speech opportunity.” “Why can’t community libraries cater to community taste?” Edenfield asked in his opinion. “And what right does an ‘unwanted-speech’ speaker have to tell a librarian what to acquire and how to present it? Could swastika-bannered hate groups who had similarly exploited the Library’s ‘free-lit’ lobby table now similarly demand the same judicial relief? How about ‘swingers’ or other pro-hedonism publications?” The ACLU claims that Edenfield has carved out an exception for the library that “radically alters established First Amendment principles and reverses decades of constitutional jurisprudence.” According to ACLU attorneys, Edenfield’s opinion invented a new legal concept, what he called a “limited, nonpublic forum” that allows greater restriction of constitutional First Amendment protections. Even the library system’s own appellate attorney suggested in her brief that Edenfield’s ruling may have “perhaps unwisely” implied the creation of the new category even as she argued that the library’s actions were reasonable and well within the law. ACLU attorneys also have challenged Edenfield’s determination that the library’s removal of its “free literature” table in order to sidestep customer complaints was “not legally relevant” to the case. Cathy Harris Helms, of Homerville, the library system’s appellate attorney, described the Guardian case as “an important case of first impression” in the Eleventh Circuit. “Although both the United States Supreme Court and the Eleventh Circuit have stated that government has the right to close a forum � neither court has ever been directly confronted with such a factual situation,” she wrote. R. Robin McDonald is a reporter for Fulton County Daily Report , a Recorder affiliate based in Atlanta.

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