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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 11th U.S. Circuit 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 R. Weber, Elizabeth L. Littrell and Elizabeth Norman are the ACLU attorneys representing Mangum and The Gay Guardian. RULING PROMPTS APPEAL A ruling in favor of the library last 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.” ‘LIMITED, NONPUBLIC FORUM’ 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 11th 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. POSTED SIGN IN RESTAURANT In February 2002, after placing copies of The Guardian in the Vidalia library, Mangum posted a sign in his restaurant in nearby Lyons advertising a Guardian story. That ad, read, in part, “Read about it in The Gay Guardian at the Vidalia library,” according to the library brief. Library personnel subsequently received inquiries — and complaints — about the newspaper. Within a week, library staff made a decision to remove the table and ban the distribution of any free materials. According to the library brief, when Mangum learned of the decision, he became “loud and abusive” to the library’s executive director, Dusty Gres, accused the library staff of stealing his newspapers, and then reported the alleged theft to the Vidalia Police Department. When police arrived at the library, Gres “informed the officer that [Mangum's] newspapers could not have been stolen because they were free, that the library had not removed any of his newspapers … “ No criminal charges were filed. Library attorney Helms claims in her brief that the library only permitted “occasional temporary placement of free materials on the library’s lobby table when the library was not using it for a particular library display.” But the library never intended to create a public forum “for indiscriminate public expression,” she wrote. According to Helms, “The library is not required to provide any access for expression by the public, much less access for distribution of materials by the public.” The library preserved “its unique discretion in library content selection/removal decisions.” Forcing the library to reopen its lobby table so that Mangum might continue to distribute the Gay Guardian would “set an extremely dangerous precedent,” Helms argued. “Currently, individuals and publications have no right to require that public libraries obtain specific materials, provide them in a particular format, or place materials in a specific location within the library.” Ruling in the Guardian‘s favor, she said, “would give individuals and publications that right for the first time.” ACLU: ISSUE MISREPRESENTED On the other side, ACLU attorneys insisted in appellate briefs that the library is misrepresenting the issue. They say the issue isn’t the library’s right to control its selection of content; rather, it’s that the library closed a forum in order to get rid of speech it didn’t like. “The government may not close a public forum in order to silence a viewpoint or escape a controversy,” ACLU attorneys wrote. No other court, outside of Edenfield’s, “has permitted the closing of a designated public forum for the explicit rationale of avoiding controversial or offensive speech.” Arguments that distibution of free literature at the table was limited by the library’s own use of it for displays, and that permission was required to use it were “manufactured” specifically for the appeal, ACLU attorneys charged. Case law has established three kinds of government forums where free speech may be exercised — traditional public forums such as public parks and sidewalks; designated public forums where a government as a matter of practice or policy permits the exercise of First Amendment rights of free speech, freedom of assembly, freedom to circulate pamphlets or newspapers, and non-public forums, such as government buildings or lobbies, where limitations on the exercise of free speech are “reasonable” and not based on any particular speaker’s viewpoint. Edenfield, the attorneys argued, created a new forum he called a “limited/nonpublic forum” to characterize the “free literature” table housed in the library lobby. A forum such as the library lobby, the judge said, is open to the public only for specified purposes, such as reading and studying. But ACLU attorneys argued that “The library allowed citizens to indiscriminately place community information on its display table.” Once the library made the display table available to everyone, it must bear the consequences of any potential complications arising from that decision, ACLU attorneys argued. The ACLU acknowledged that the Guardian “holds no inherent ‘right’ to distribution in the library, and the library is not required to keep the forum open.” But the library staff’s decision to bar all publications in order to bar the viewpoint of The Gay Guardian is unconstitutional because it is motivated “by a desire to suppress a particular point of view. … Every court that has reviewed the closing of a public forum to silence controversial speech has found such closing of the forum unconstitutional.”

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