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Ruling Could Affect Restrictions On Sex Offender Use Of Mass. Libraries

(Ozyman/Flickr)

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.

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  • Anonymous

    The Boston Public Library is full of homeless people who are often disruptive. 

  • http://sexcrimeswitchhunt.wordpress.com/ RSODL

    Time to start fighting back against this witch hunt. (Rehabilitated Sex Offenders Defense League) http://sexcrimeswitchhunt.wordpress.com/

  • http://www.facebook.com/retroglamour Shana Rowan

    No matter how they word it, eventually it will be challenged and nullified. At that point it will have been a complete waste of time, effort and money that could have been spent instead on programs that are actually based on facts and not myths: prevention, awareness, and education for children, parents and the rest of the community.

    The sole incident they seem to be basing this proposal on, where a registered sex offender lured a boy he was not acquainted with away from his mother and sexually assaulted him in a public place, is undeniably awful – however, it is an extremely unusual case, not one that represents the characteristics of the high majority of sex offenders OR how they gain access to victims. The emotions we feel when we hear about these stories – anger, sadness, outrage – are understandable, however they are not what effective legislation is based on. This proposal, just like the numerous others across the country, will not protect anyone, and furthers the misconception that as long as registered sex offenders are banned from public libraries, kids are A-OK.

    http://www.endsexcrime.org

    • http://www.facebook.com/profile.php?id=624866457 Valerie Parkhurst

      Hey Shana what happened to your “I Love a Sex Offender Link”???

      Decided linking that in your post didnt get the “warm response” you thought it would???
      Convicted sex offenders have lost many of the rights that is afforded to those who dont have this type of crime under their belts.
      Libraries are breeding grounds for Freaks, there is a valid reason for laws and ordinances barring  sex offenders from certain places and establishments that reason being “convicted sex offenders have shown their pre-disposition for violating the laws that protect our citizens” .”.Laws” Shana, do not protect anyone, but at least they give the public a fighting chance to protect themselves.

      • http://www.facebook.com/retroglamour Shana Rowan

        Hi Val, how are you…haven’t heard from you in a while!

        My blog is still up and running, but now I have a website that I can easily direct people to that has a comprehensive list of links to studies and research. If you’re reasonably sure I’m not a sex offender in disguise, maybe you’ll check it out.

        Anyway, as usual, your comments are bizarre and have no factual basis. I know you don’t like to hear this, but convicted SOs have a much lower re-offense rate than almost every other violent and non-violent felon, making your “pre-disposition for violating the laws” statement invalid. At least we can agree that laws don’t protect anyone, but I think you and I both know the real reason behind it is that they don’t target the large majority of offenders, who have never been caught.

      • Roger

        Someday you may be walking in a SO’s shoes, all someone has to do is point their finger at you and say you did it or put illicit pictures in your car and call the police and before you know it you will be pleading to a deal. Simply put you have no idea how the law works or how corrupt it is!

    • Jjewett83

      This is one of the most educated responses that I have ever read. The key is educating the public not scaring the public

  • Raymondweil

    Perhaps we insert GPS implants in all sex offenders, and then track them. This will create jobs for the homeless and unemployed.

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