US Courts Beginning to See the Injustice

U.S. appeals court says sex offenders have right to libraries

(2012-01-20)
(Reuters) - By Keith Coffman

DENVER (Reuters) - A federal appeals court ruled on Friday that a policy barring registered sex offenders from public libraries in Albuquerque, New Mexico, was unconstitutional, a decision that could have reverberations across the nation.

"The First Amendment includes a fundamental right to receive information," a three-judge panel of the Denver-based 10th U.S. Circuit Court of Appeals wrote.

"By prohibiting registered sex offenders from accessing ... public libraries, the city's ban precludes these individuals from exercising this right in a particular government forum," the court said.

But the panel left open the possibility of allowing restrictions less stringent than an outright ban.

The case stemmed from a 2008 "administrative injunction" by then-Mayor Martin Chavez, who ordered city libraries to send letters to registered sex offenders holding library cards to tell them they were no longer allowed in libraries.

The policy was challenged by the American Civil Liberties Union (ACLU) on behalf of a sex offender who until the mayor's action frequently used the city's libraries to check out materials and attended lectures and meetings there.

Friday's decision could have nationwide implications, as the state of Iowa, three cities in Massachusetts and jurisdictions in North Carolina and Texas all have tried to enact some sort of sex offender library ban, according to an Indiana University law school article.

The opinion upholds a 2009 decision by U.S. District Judge Christina Armijo of New Mexico, who ruled the city went too far with its "complete and wholesale ban." The city appealed.

The appellate court noted in its 44-page ruling that the case "presents us with a difficult issue" because of the city's goal to protect the public versus First Amendment rights.

"We are sympathetic to the city's desire to ensure that its public libraries provide a safe, welcoming environment for its patrons, especially children," the judges wrote.

"We therefore are especially mindful that registered sex offenders, whom studies have confirmed have a considerable rate of recidivism, may threaten to shatter the peace and safety of this environment."

However, the judges said city officials failed to look at other less restrictive approaches, including designating certain hours for sex offenders, requiring them to check in with library staff or restricting areas of the library that they could use.

Albuquerque Assistant City Attorney Gregory Wheeler said the city had adopted a less restrictive policy following the district court's ruling, so Friday's decision will have little immediate impact.

Nevertheless, the city is analyzing the ruling to decide whether to appeal to the U.S. Supreme Court, he said, adding, "We are always looking for ways to provide more protection."

Peter Simonson, executive director of the ACLU of New Mexico, hailed the ruling.

"People have a First Amendment right to receive public information, and the government needs to explicitly justify its actions if it's going to infringe on such a fundamental right, Simonson said in a statement.