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September 14, 2011

Even if banning sex offenders from public libraries is constitutional, is it a reasonable policy?

I responded yesterday to a Tennessee story about a new criminal prohibition on registered sex offenders setting foot in a public library by asking in this post, "Is it constitutional to ban sex offenders from public libraries?".  I sent the post to First Amendment guru Eugene Volokh, and he responded with two great posts on his great blog here and here explaining his view that (1) this new Tennessee ban is constitutionally permissible under the First Amendment, but (2) there could be a problem with it under federal regulatory law for libraries that get federal benefits.

In addition to expressing how grateful I am for Eugene's input and analysis, I wanted to do this follow-up post asking for reactions to this ban as a matter of policy.  I tend to have a negative reaction to the ever-growing and seemingly never-ending list of what registered sex offenders must and must not do.  And yet, public libraries are places where not only do I want patrons to be 100% safe, but I want even the most fearful of potential patrons to believe they are 100% safe. 

Before condemning this new Tennessee law, it is worth considering how a local mayor or town council member should be expected to respond if some (many? a few?) constituents assert that they genuinely would feel safer with their kids at the local library if sex offenders were barred.  Though many might say it is silly to have an undue fear about registered sex offenders while at the public library, I think it must be hard for an elected official to say just that directly to a person expressing such a fear and urging the kind of ban now in place in Tennessee.

September 14, 2011 at 02:08 PM | Permalink


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For whatever it's worth, the public library is the only place many not-so-well-off folks have access to email and the internet.

Posted by: JJJ | Sep 14, 2011 2:55:48 PM

The ban seems a bit punitive, esp as the original article noted that there was not a history of problems and just one current case being investigated.

How about a policy that during the school year, those on the registry could use the library weekdays until 3pm, when kids should be in school. During the summer, you could have certain days designated for everyone and certain days (where there may be story time, kids activity) where those on the registry were excluded.

Posted by: Paul | Sep 14, 2011 3:34:51 PM

I am always stunned when these laws are made with the idea that sex offenders live a solitary existence, no family and no friends.
My husband has three young children who will no doubt need to use the library at some point during their school years. If we lived in this awful Tennessee town, who would accompany our children to the library if I had to work?
Nobody really cares about the children of sex offenders. Nobody seems to realize that, Yes, there are a lot of guys on the Registry who have families, they even have children. The laws seem to punish the children of sex offenders as much as they do the sex offenders themselves.
Just a little aside, I saw the movie "The Help" and I had to laugh when the Hilly character explained why the maids needed to have a separate bathroom, "It's to protect the children from all those diseases those maids could cause." Maybe there should be a separate but equal library for Sex Offenders??

Posted by: Obvious | Sep 14, 2011 4:20:05 PM

I respect the comment from "Obvious" but the reference to a film where black maids supposedly have diseases that taint people to sex offenders where bathrooms accessed by children have a much less absurd concern is a bit much.

The law seems excessive, specifically if it is not limited to the children's section. A school yard is a large space where an adult can target children much easier than a library, though I guess someone can focus on some isolated aisle. Also, as the first comment notes, a library is a place where sex offenders very well have a need to go or at least appropriately would go. And, I don't like librarians needing to enforce such a policy.

Posted by: Joe | Sep 14, 2011 5:55:17 PM

"And yet, public libraries are places where not only do I want patrons to be 100% safe, but I want even the most fearful of potential patrons to believe they are 100% safe."

Nowhere is it 100% safe and making laws for the 'most fearful of potential patrons' only coddles their own insecurities.

Posted by: Robert | Sep 14, 2011 5:55:27 PM

Obvious, why hasn't a wife sued on behalf of herself and her children under section 1983 because the social sterilization of RSOs destroys the rest of the family and they don't deserve punishment or regulation? Think Skinner v Oklahoma.

Regarding this library law, since about 95% of all sex offenders were never convicted of anything (no criminal record or record of a sex offense), the false sense of security ought to set up a pretty good hunting ground.

Posted by: Anon | Sep 14, 2011 6:05:57 PM

I am a supporter of sex offender registries, however, I am also a supporter of parental responsibility. Libraries are not babysitters. Just as I would not send my 5 year old into a supermarket and expect the cashiers and stockboys to babysit, I do not expect the librarians to either. My son would not be in danger because there is no way a SO would lay a finger on him in the library.

I see this as more of an excuse for parents to not do their job than any real concern about safety. Kids are everywhere. The only way to keep SO's out of the vicinity of children is to imprison them indefinitely (not such a bad idea). Banning them from the library is only a "feel good" measure that achieves nothing.

Posted by: TarlsQtr | Sep 14, 2011 10:23:56 PM

Although I don't completely agree with you as far as supporting the SO registries [as-is], I do agree with your position where parental responsibility is concerned. Fact is, the first SO "nanny law" passed and signed into law by Bill Clinton was created because two parents allowed their kids [both under the age of 12] to take a bike ride at dark. The there is no evidence that a sexual deviant kidnapped Jacob Wetterling, but Patty & Jerry Wetterling managed to get a law passed that has spiraled out of control and has effected the lives of more than the just tens of thousands of people forced to register as sex offenders.

I as a parent have a right and responsibility where my child is concerned and I don't like the idea of government subverting my rights/responsibilities by creating bullshit laws because too many irresponsible parents don't want to be... responsible.

Posted by: Huh? | Sep 14, 2011 11:04:33 PM

Joe, my reference to the movie is because everybody, everybody talks about the Registry and justifies it because of the children. How convienient to justify hypocritical, unjust actions by saying, "Think of the children".
The truth is people are not concerned about the well being of my children at all. While dealing with the authorities and subsequent events, my 11 year old has cried until his asthma has kicked in and we have to do a treatment.
But yet I see many comments concerned about the welfare of children that might be contaminated by being in the presence of someone on the Registry that has never once touched a child in an improper manner. Are any of you worried about my 11 year old who would be thrilled to accompany his dad to a library or a high school football game or that his dad would be able to watch him play little league baseball?
I'm guessing the answer is NO.

Posted by: Obvious | Sep 15, 2011 12:08:37 AM

For what it's worth, Volokh seems to me to be wrong on the First Amendment question. The only federal case on-point found that blanket restrictions of registered SOs from libraries were not narrowly-tailored and therefore unconstitutional. Doe v. City of Albuquerque (D.N.M. Mar. 31, 2010).

Meanwhile, his case that he says demonstrates that libraries are not traditional public fora involves a patron who was expelled, not permanently, but temporarily for not following library rules. http://scholar.google.com/scholar_case?case=8685768819392175933

Indeed, the New Mexico case specifically distinguishes a temporary ban from the permanent ban of a SO. Furthermore, the NM court looks at the library less as a "place" than as an opportunity to be a "receiver" of information and viewpoints, and therefore deserving of strict scrutiny protection.

Posted by: James | Sep 15, 2011 3:35:30 AM

This sex offender ban bears a suspicious resemblance to the Jim Crow laws that denied blacks equal access to libraries and required them to pursuade a white to check out books for them. This sex offender prohibition law in Tennessee and New Mexico looks like an attempt to sneak segregation through the back door.

Aside from the law's uncomfortable similarity to Jim Crow and to Hitler's Nurnburg laws that barred Jews from public places, this law actually could endanger public safety if it causes a former sex offender to violently violently react against this law. Such a person may feel that he or she has nothing to lose anymore by threatening a library security guard with a weapon, thus, endangering patrons, staff, and law enforcement personnel. Another scenario may involve former sex offenders politically banding together, just as black civil rights activists and freedom-riders, to force repeal of this law.

If parents would teach their children how to avoid strangers and to feel free to contact a staff member or another trusted adult if the child feels uncomfortable about some person acting inappropriately in a public space, that would do more to protect children from predators.

Finally, most sex offenses against children occur in a family/private setting by an trusted adult authority figure like an aunt or an uncle. While stranger-danger does occur, it occurs far less frequently than from an adult of either gender that the child trusts.

Let's use common sense instead of succombing to the fearmongering of a few right-wing politicians like Tom Burchett who cynically exploit parents' fear of sex offense for their own selfish political gain.

(I work as a note-taker for students with disabilities at a college).

Posted by: william r. delzell | Sep 15, 2011 3:02:32 PM

I am in agreement with the person above. Laws start out trying to protect us or our children and usually based on our own fears. With each new law enacted it seems we are losing more of our own freedwom. Let us not forget that some sex offenders are college students caught by the sex offenders law. Should they not be able to go into the public places when prusuing there college degree.

Posted by: jan | Sep 15, 2011 5:53:14 PM

Let us not forget that there are those that were hands on offenders but many more that were not (and are not a direct threat to anyone) but are still required by law to be listed on the registry and restricted in there movements. There should be a distinction between the two but the problem is there isn't.

Posted by: Gary | Sep 15, 2011 6:48:36 PM

Gary, the registry should be saved for those with a propensity to continuously commit sexual offenses - the worst. Furthermore, it should be applied as the 1994 version of Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act intended.

Posted by: Huh? | Sep 15, 2011 9:36:02 PM

no kidding huh? That would be VIOLENT or REPEAT OFFENDERS! as the smiling idiot Jimmy Carter called them...."The WORSE of the WORSE!"

if that's what the num-nut's in politics have LEFT IT AT! we would probably have never had a thing to talk about.

but instead they have made it so OVER INCLUSIVE it now includes 5 and 6 YEAR OLDS!

Posted by: rodsmith | Sep 16, 2011 12:57:33 AM

Einstein said that insanity was "doing the same thing over and over again and expecting different results."

He also said:

"We cannot solve our problems with the same thinking we used when we created them," and "Any intelligent fool can make things bigger and more complex... It takes a touch of genius - and a lot of courage to move in the opposite direction."

97 years of failed drug policy has yet to teach lawmakers little. FUBAR SO laws are of little surprise.

Posted by: Huh? | Sep 16, 2011 7:05:50 PM

I am a student. I am friends with 3 sex offenders whom 2 are still in prison for it. Now I'm not saying that "SOME" sex offenders need to not be in certain places at certain times but the punishment has already been handed out. They've already done their time!! Do they really need to be punished over and over and over again?!?

Posted by: Elizabeth | Sep 18, 2011 10:35:29 PM


Posted by: MaybeSomeHelp | Sep 19, 2011 9:39:28 PM

Not all sex offenders have crimes against children, and most that commit sex crimes are first time offenders. This law does nothing to prevent attacks against children by those who are the dangerous majority, and punishes many who have never hurt any children. They'll just keep throwing after the fact punishments at the wall until they get something that sticks. Its getting old, letting the courts "sort it out" when in the meantime people's lives get ruined for getting arrested just so they can check out a book.

The dangers in the minds who compose such a law should be whats in question.. where do their thoughts go at night? They are not interested in protecting children, they are interested in drumming up fear in the name of re-election and looking "tough" on crime.

Posted by: tbucket | Sep 20, 2011 11:19:50 PM

I am a sex offender in Wisconsin.

I just want to say how sorry I am for what I've done. I did 2 years in prison and 8 years on paper while on electronic monitoring. I never was revoked. I had the same job for all but 6 months. I went through SOT treatment, substance abuse treatment, parenting classes, whatever I could do and did what was told to do. I understand and accept the penalty. If I am not allowed to go the library, fine. The park, fine. I can't live anywhere where there is a child safety zone, fine. Pay 100.00/ year to be on the registry, fine. Just please pass the laws now so I know what they are. Don't keep adding more and more restrictions as time goes on. I am paying taxes like everyone else and will continue to do so, but if I don't have the right to access these things why should a person have to pay taxes for them?
This is not a feel sorry for me comment. Trust me, I can and will continue to do the right thing. I do wish for another chance but know it will never happen.

Posted by: Wisconsin | Sep 20, 2011 11:56:53 PM

“After reading the posts on this blog, I feel like I know a lot more about sex offenders and criminal checks. And based on the number of posts, I see I am not alone. My website, http://sexoffenderandcriminalchecks.sugarlandmall.com has not been up long, but I would like to refer people back to your website to read the info.

Thanks again,
Lisa Monroe.”

Posted by: Lisa Monroe | Sep 27, 2011 4:45:32 AM

Philosophy professor, retired:
I had to wonder, given the comments, what constituted a sex crime, since most of the comments seem to think all sex offenders are pedophiles. Here is an on-line definition:

Sex offender n. generic term for all persons convicted of crimes involving sex, including rape, molestation, sexual harassment and pornography production or distribution.

Prostitution is also classified as a sex crime, though mandatory registration is not in place for that violation. Do we really want to further marginalize and de-socialize these offenders by denying them the vote, library access, jobs, etc.? Most social workers agree that more integration into society rather than less can erect better barriers to recidivism by building human ties which reinforce "normal" behavior. Pedophiles are an interesting exception, but the law is aimed at all sex offenders (even those falsely charged and convicted, a recipe for bitterness if I've ever heard one.

Posted by: Larry Ashley | Mar 29, 2012 12:46:00 PM

I was just sexually assaulted this week by a RSO in a library parking lot.this is absurd!!!i should not have to fear for my safety at a place like this!

Posted by: anonymous | May 23, 2014 11:03:57 AM

The banning of sex offenders in public is a just part of punishment for a sex offender. It is 2 send message 2 society. Don't molest, commit a sex offence n you don't get ban. Sorry if that punishment is 2 harsh 4 you. Cry me a river 4 the sicko's huh? No no don't punish the child rapist no more, let him in a library full of kids? Yuck. Can't handle the time, don't do the crime.

Posted by: andrew gill | Apr 27, 2015 11:54:02 PM

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