November 22, 2017

Judge Dismisses Final Lawsuit Between Orland Park PL, Bloggers

Orland Park Public Library, IL

Orland Park Public Library, IL

On May 16 U.S. District Judge John J. Tharp Jr. dismissed a second amended complaint filed by Bridget Bittman, former public information director of the Orland Park Public Library (OPPL), IL, against New Jersey–based blogger Dan Kleinman, who describes himself as a “library watchdog” on his website SafeLibraries.

Bittman’s complaint was one in a series of suits and countersuits between local bloggers Megan Fox and Kevin DuJan and their associate Kleinman, touched off after Fox alleged that she saw a man looking at pornography while at the library in 2013. Fox and DuJan, eventually joined by Kleinman, challenged OPPL’s Internet filtering policies—first approaching the library’s board of trustees at their regular meetings, then initiating a lengthy series of Freedom of Information Act (FOIA) requests, leading to a string of legal battles and Bittman’s eventual resignation. At stake, originally, was the library’s stance on its patrons’ First Amendment rights. Over the next three years the challenge would result in multiple lawsuits, name-calling, police intervention, and accusations of harassment, and defamation via social media.

CHALLENGES AND FOIA REQUESTS

In October 2013 Fox and her two children visited OPPL to use the library’s computers. According to Fox’s claim, she was told by a librarian that she would need to use the adult computer area. There, according to a press release Fox issued dated October 25, she witnessed a man viewing pornography online. Fox reported this to a library employee, who advised her to contact library director Mary Weimar.

After writing an email to Weimar and receiving no response, Fox, along with fellow writer and library patron DuJan, attended a library board meeting several weeks later. The two spoke out on the perceived rudeness of OPPL staff and requested that the library change its filtering policies. In response to Fox’s demand for an immediate response, Jim Fessler, general counsel for the board, advised her to submit requests for written documents to the library under the FOIA.

Over the next 11 months Fox and DuJan filed 133 FOIA submissions, containing 742 distinct document requests, and at least 34 complaints with the Illinois Attorney General’s Public Access Bureau alleging transparency law violations by library staffers. Their FOIA requests ranged from records of incidents involving patron complaints about individuals accessing pornographic websites to information on library policies, personnel, and spending to asking why one member of the board wore red to every meeting. A few complaints were upheld by the Public Access Bureau, including that OPPL illegally restricted public comment during a board meeting; that it held a meeting where the board voted on its Internet policy on Lincoln’s birthday, a legal holiday; and that it didn’t fully explain the decisions when voted on. The rest were dismissed.

According to the Chicago Tribune, since 2001 the library has filed three internal reports of patrons viewing pornography, including one man allegedly viewing child pornography in 2011 (he denied the allegation, and the claim is still under investigation by the police). The lawsuits and associated requests ultimately cost OPPL $125,000 in legal fees, according to the Chicago Tribune, not counting the cost in time of library employees.

OPPL representatives declined to comment to LJ on any of the legal actions or decisions.

FIRST AMENDMENT DRIVES DECISION

OPPL has stated at several board meetings that its filtering policies are in line with standard rules for those of other area libraries; the policy at nearby Tinley Park Public Library states that “Library equipment should not be used to access material that is considered to be obscene or pornographic (by other patrons or staff),” but it does not filter its adult computers, and at the Naperville Public Library filters were removed in 2012 because they often blocked content that was permitted, according to the Chicago Tribune.

According to its computer use policy, OPPL filters Internet access in the youth and teen areas, which are for children under 17 and their accompanying parents or guardians only. However, because adult patrons may need to visit sites that could trigger filtering software, OPPL does not provide it on computers in its adult area.

Patrons bothered by another patron’s actions can notify staff and request that they confront the person causing the disturbance. “Libraries are especially known for upholding First Amendment rights and allowing access to any legal type of information,” Bittman told the Orland Park Patch in November 2013. “There’s a fine line between making sure people are accessing what they want and making sure [other] patrons are not bothered by it.”

According to Vanderbilt University’s First Amendment Center, “There are two types of pornography that receive no First Amendment protection—obscenity and child pornography. The First Amendment generally protects pornography that does not fall into one of these two categories—at least for adult viewers.” The definition of obscenity is traditionally challenging and is often decided case-by-case, although the guidelines set out by the 1973 Supreme Court case Miller v. California are generally used. These include the following from the First Amendment Center’s explanation:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

“An adult library user should be able to access whatever legal content they wish to access,” Svetlana Mintcheva, program director of the National Coalition Against Censorship, told LJ. “Refusing to do so would discriminate against economically disadvantaged users who may only have access to a library computer, limiting them from accessing legal content. It would also violate the First Amendment rights of all users.”

DEFAMATION, COUNTERCLAIMS

In addition to the ongoing information requests, local police were called a number of times to settle disputes between Fox and DuJan and OPPL officials at board meetings and outside the library. “When confronted with any wrongdoing,” Fox and DuJan told LJ, “the Orland Park Public Library chose a hostile and aggressive strategy of scaring away and silencing its critics instead of admitting that staff had made poor decisions.”

At least one of these confrontations was videotaped and posted to YouTube. The July 2014 video, posted by Fox and titled “OPPL Spokesperson commits Disorderly Conduct/Breach of Peace according to Ofc. Schmidt,” showed Bittman and OPPL trustee Diane Jennings in a verbal altercation with Fox, DuJan, and another Safe Libraries activist outside the library. Kleinman later posted the video on his SafeLibraries blog, which he has been using as a platform to bring attention to libraries’ filtering policies, among other issues, since 2008.

A photograph was also posted on Facebook of Bittman with a bottle of champagne, alleging that she was drinking alcohol while on the job at OPPL; photographs of her home were also publicly posted. In addition, Bittman claimed that Fox and DuJan created a Facebook page using her image and name without her authorization to attack her floral arrangement business, which she argued violated Facebook’s Terms of Service.

In October 2014, Bittman filed a civil defamation suit in Chicago’s U.S. District Court against Kleinman, Fox, DuJan, and local businessman and “government watchdog” Adam Andrzejewski, alleging that they used social media in “efforts to defame, discredit, disparage and damage Ms. Bittman’s reputation and thereby cause her to suffer harm,” according to the court statement.

Fox and DuJan, in turn, brought a lawsuit against OPPL over the alleged FOIA and Open Meetings Act violations, claiming that the library refused to provide records in a timely fashion, having labeled them “recurrent requesters.” The case was settled in March 2015, with the library agreeing to pay Fox, DuJan, and their attorneys $55,000. The agreement also set up procedures for handling future such requests from the two.

In June 2015 U.S. District Judge James Holderman ruled that although the Facebook page parodying her floral business was “distasteful, mean-spirited, and vindictive,” the defendants did not violate federal computer fraud laws, nor did they defame Bittman. On the other hand, although Fox and DuJan claimed that during the videotaped episode Bittman and Jennings allegedly directed homophobic statements at DuJan, background noise on the video renders those parts of her speech unintelligible, and after reviewing the material with the Orland Park Police Department (OPPD) police lieutenant Thomas Hottinger “discovered that the event does not fit the Disorderly Conduct statute by definition,” according to the public statement regarding the withdrawal of claims.

In July 2015, attorneys for Fox and DuJan filed a countersuit in opposition to Bittman’s motion to dismiss the counterclaims against her. It claimed that Bittman’s countersuit, which Fox and DuJan’s attorneys characterized as a SLAPP (Strategic Litigation Against Public Participation) suit, damaged Fox’s professional reputation as a writer by questioning her integrity. “The lawsuit that Bridget Bittman filed against critics of the Orland Park Public Library was clearly a SLAPP…intended to silence and censor criticism of the Orland Park Public Library Board, its staff, and the American Library Association,” Fox and DuJan told LJ. Throughout the litigation process, judges encouraged the two sides to settle.

Fox filed another suit in August 2015 naming the village of Orland Park and the OPPD as defendants, alleging they had intentionally violated state FOIA laws. Orland Park trustees voted to approve a settlement with Fox that October, paying $12,000 to end the lawsuit, although neither the village nor police department admitted to any wrongdoing.

In March 2016 Bittman, who left her position at OPPL in July 2015, withdrew her suit (Jackie Boyd currently handles the library’s public information services). Tharp signed an agreement for a non-financial settlement between Bittman, Fox, and DuJan, with each litigant paying their own costs. Bittman proceeded to file an amended complaint for defamation against Kleinman, which was finally dismissed by Tharp in May.

A VOLLEY OF SUITS ENDS

In his May 16 ruling, Tharp said that “The behavior of some of the partisans in both camps bears little resemblance to the sort of substantive and respectful public discourse that should ideally characterize debates about important public policy issues, and instead exemplifies the sort of juvenile tactics one would expect to see the antagonist in a schoolyard and playground argument employ.”

Tharp also noted, “The entire incident… could have been avoided entirely if either side had behaved maturely and gone about their business rather than provoking the opposing group.” Tharp ruled that Kleinman had not personally targeted Bittman or OPPL, and had no connection to the state of Illinois, and the case should not be heard in Chicago federal court. “The burden of compelling (Kleinman) to defend a lawsuit from across the country outweighs other interests,” Tharp wrote.

“The judge was correct to dismiss the lawsuit,” Kleinman told LJ. “First of all, there was no there there. Second, the case was not designed to defend anyone’s rights. Rather, it was designed to stop child pornography whistleblowers from gaining traction.” Kleinman added, “I trust the judicial system. What’s inappropriate is when local authorities like the police essentially collude with the library to stifle the First Amendment rights of citizens.”

James LaRue, director of the ALA Office for Intellectual freedom, feels that a volley of lawsuits such as these does nothing to highlight issues of censorship or First Amendment issues. “It conceals them in a cloud of irrelevancies, and nobody was taking the time to have a direct conversation about some of these things,” he told LJ, “so as a consequence everybody winds up behaving badly. Sometimes people do abuse public computers, sometimes people do abuse public positions, and sometimes people do abuse Freedom of Information Act requests…. Who changed their mind about anything? It doesn’t seem that we’ve moved forward in any way. So I hope that instead of focusing on the claims and counterclaims, we just take a step back and say, ‘So what’s the real issue again?’ “

He added, “Public board members have an obligation to treat citizens with respect. And citizens should exercise respect and decorum as well, because we want effective institutions.”

Kleinman intends to pursue the filtering issue further, he told LJ, as he believes “[t]he library still violates Illinois state law by allowing unfiltered Internet access and by destroying public records police need to apprehend child porn criminals.” (OPPL’s software Drive Shield erases all history on public computers when they power down at the end of the day.)

In late May, Fox and DuJan self-published a book about their legal battles titled Shut Up!: The Bizarre War that One Public Library Waged Against the First Amendment. The book, Fox and DuJan told LJ, “is the first case study ever written about a public library that violated the First Amendment rights of its critics and that was caught engaging in repeated and continued acts of censorship and retaliation aimed at chilling the free speech of members of the community who questioned the decisions, actions, and spending choices made by library staff and board members.”

Lisa Peet About Lisa Peet

Lisa Peet is Associate Editor, News for Library Journal.

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Comments

  1. I’m the Dan Kleinman involved in this story. Thank you, Lisa Peet/LJ, for writing this.

    The impression was left that accessing Internet pornography in a public library is a First Amendment right. It is not and United States v. American Library Association so ruled in 2003. The National Coalition Against Censorship does not overrule the US Supreme Court. It is simply not censorship to block Internet pornography from public libraries. Indeed some state laws implicitly require it.

    In a nutshell, this case illustrates how 1) poor customer service, a 2) strategy to attack whistleblowers, and 3) concerted/coordinated efforts to ignore sunshine laws is a public relations nightmare that will only drain libraries of scads of money. Just being polite, honest, and respectful of the law would have nipped this public relations nightmare in the bud. Now there’s a whole book about it and you can tell it’s very good since librarians are actively seeking to suppress sales of the book, a perfect candidate for “Banned Books Week.” Yes, librarians are seeking to suppress the book.

    Anyone seeking further comment is free to contact me.

    • In your opinion.

    • David Genesis says:

      If only there was a legal definition of pornography.

      (There is not.)

    • I agree, David Genesis, but that’s what the entire case ALA lost is about, namely, the 2003 US Supreme Court case of United States v. American Library Association. The issue was not obscenity nor child p0rnography. Those issues had already been asked and answered in previous cases. SCOTUS does not repeat things. For US v. ALA, the issue was Internet p0rnography and specifically in public libraries. The Court ruled public libraries blocking Internet p0rnography does not violate the First Amendment. That the definition of p0rnography is this, that, or nothing at all is not the issue and blocking Internet p*rnography in public libraries is not suddenly a reconstituted violation of the First Amendment simply because there’s no legal definition of p*rnography. It is not so simple to ignore the case simply by saying there’s no legal definition of p0rnography. ALA uses that as one of the excuses to try to convince people to ignore the case it lost after spending about a million and a half dollars. But US v. ALA is entirely about Internet p0rnography in public libraries, no matter what the definition of the word may be. Please read the case.

    • David Genesis says:

      If only there was a legal requirement for libraries not getting e-rate funding to block pornography.

      (There is not.)

    • @David Genesis, there is.

      Many states have laws creating libraries for the use and benefit of the public. That limits libraries to being for the use and benefit of the public, not missed and harm. Internet porn does the exact opposite, it’s for the misuse of the public and it harms the public, let alone the librarians who become sexually harassed as a result (though ALA says that never happened and likely never will-click my name to see a transcript proving this). Besides, a recent Harris Poll shows most people oppose pornography, and SCOTUS wrote how libraries have rightly and traditionally excluded pornography.

      So existing state laws may already be in place (depending on the state) that can be used to force libraries to act within the law and to stop acting outside the law. No new laws need be written. Just brush the dust off the statute books, clear your mind of ALA misdirection on the topic, and you have a legal basis for requiring Internet porn to be blocked somehow in public libraries.

      Librarian of Congress and former ALA President Carla Hayden just testified filters are the best means of doing that and libraries should not carry Internet pornography.

      So state laws are your existing, legal basis for blocking Internet pornography from public libraries.

      On the topic of this LJ story, it is my belief I was sued in part to wear me down, drain me of time and money, just to silence me from saying what I just said. If people start using existing state laws to apply Internet filters in public libraries, that would be a direct threat to all Judith Krug has done in creating and building ALA’s “Office for Intellectual Freedom.” But it would go a long way toward safer libraries for everyone and particularly a reduction of sexual harassment incidents against librarians.

    • David Genesis says:

      There is no legal requirement for non-eRate libraries to block pornography. Pointing to a law and saying, “This is what I think it means” when it doesn’t say it is not the same.

      A poll saying most people oppose pornography just tells me that most people aren’t going to tell a stranger that they approve of pornography. It’s called “response bias” and it’s when people say what they think the other person wants to hear or give an answer that makes them look good.

    • How is it being suppressed? I see it right there in WorldCat. Owned by Illinois libraries. Reading the reviews on WorldCat and Goodreads from you and all their friends gave me a good chuckle.

  2. spinetingler says:

    ” Internet porn. . . harms the public”

    Citation needed.