The opinion of the court was delivered by: Sarokin, District Judge.
A public library has enacted a regulation which is admittedly
aimed at barring a particular homeless person from its premises
because his presence and appearance are considered offensive to
others. The danger in excluding anyone from a public building
because their appearance or hygiene is obnoxious to others is
self-evident. The danger becomes insidious if the conditions
complained of are borne of poverty.
The public library is one of our great symbols of democracy.
It is a living embodiment of the First Amendment because it
includes voices of dissent. It tolerates that which is
offensive. The library of today frequently provides not only
access to books, newspapers, and magazines, but also to
concerts, lectures, and exhibits. It is a source of fact and
However, in establishing regulations for use, the conditions
imposed must be specific, their purposes necessary, and their
effects neutral. Likewise, enforcement cannot be left to the
whim or personal vagaries of the persons in charge.
No one can dispute that matters of personal appearance and
hygiene can reach a point where they interfere with the
enjoyment of the facility by others. But one person's hay-fever
is another person's ambrosia; jeans with holes represent
inappropriate dress to some and high fashion to others. Thus,
no matter how laudable and understandable the goals of the
library may be, we cannot — we dare not — cross the threshold
of barring persons from entering because of how they appear
based upon the unfettered discretion of another.
Society has survived not banning books which it finds
offensive from its libraries; it will survive not banning
persons whom it likewise finds offensive from its libraries.
The greatness of our country lies in tolerating speech with
which we do not agree; that same toleration must extend to
people, particularly where the cause of revulsion may be of our
own making. If we wish to shield our eyes and noses from the
homeless, we should revoke their condition, not their library
The court has been asked to resolve defendants' motion for
summary judgment on the facial validity of the "Patron Policy"
(hereinafter "policy") instituted by the Joint Free Public
Library of Morristown and Morris Township, under which
plaintiff was ejected and subsequently excluded from the
library. This motion for summary judgment on the facial
validity of the library policy does not address or attempt to
resolve whether defendants acted within that policy on the
occasions upon which they excluded plaintiff from the library,
nor does it pertain to plaintiff's conduct in any way.
Nevertheless, on this motion, defendants request "a mandatory
injunction [directing] that plaintiff shall leave the Library
premises when so directed by the executive director of the
Library or her authorized assistant." Def. Reply Brief at 16.
Plaintiff has cross-moved for summary judgment, arguing that
the library policy is facially invalid. Should the court find
in plaintiff's favor on this cross-motion, plaintiff requests
that the court enter 1) a declaratory judgment that the library
policy violates plaintiff's rights under the New Jersey and
United States Constitutions; 2) a preliminary and permanent
injunction barring enforcement of Patron Policy paragraphs 1,
5, 9, and the final two unnumbered paragraphs; and 3) an
injunction barring promulgation of any future library policy
designed to restrict plaintiff's or other homeless persons'
access to the library. Plt. Brief at 2-3. The American Civil
Liberties Union of New Jersey ("ACLU"), in its capacity as an
amicus curiae, has made submissions in support of plaintiff's
Plaintiff, a resident of Morristown, is a homeless individual
whose access to showers and laundry facilities is severely
curtailed by his homeless status. Kreimer Cert. at ¶¶ 1, 6. In
the underlying action, plaintiff alleges that the library
policies*fn1 governing access to the library violate his
rights guaranteed under state and federal law. He seeks a
declaration that the policy is invalid, an injunction against
its enforcement, and the assessment of damages against several
municipal employees and agencies for excluding plaintiff from
the library on the basis of the policy.
On May 16, 1989, in specific response to the "problem
behavior" of some library patrons (Def. Brief at 3), the
library Board of Trustees adopted to following written policy:
5. Patrons shall respect the rights of other
patrons and shall not annoy others through noisy
or boisterous activities, by unnecessary staring,
by following another person through the building,
by playing walkmans or other audio equipment so
that others can hear it, by singing or talking to
oneself or any other behavior which may reasonably
result in the disturbance of other persons.
9. Patron dress and personal hygiene shall conform
to the standard of community public places. This
shall include the repair or cleanliness of
Any patron not abiding by these or other rules
and regulations of the Library, may be asked to
leave the Library premises. Library employees
shall contact the Morristown Police if deemed
Any patron who violates the Library rules and
regulations may be denied the privilege of access
to the Library by the Library Board of Trustees,
on recommendation of the Library Director.
Rice Cert., Exh. B. Defendants freely admit that they designed
these regulations to curb the specific behavior of plaintiff.
See Def. Reply Brief at 12.
Shortly after the library announced this policy, a staff
attorney of amicus the ACLU of New Jersey contacted counsel for
the library and expressed the belief that the policy's
prohibition on "loitering" was unconstitutionally vague. In
addition, the ACLU suggested that the policy as written gave to
the library staff excessive discretion to enforce the policy.
Rice Cert., Exh. C. According to defendants, the library
Director and Board of Trustees discussed the issue with their
counsel, who advised that although in his opinion, the policy
was not unconstitutionally vague, the library might consider
clarifying the policy.
In response, the following revised policy was adopted on July
1. Patrons shall be engaged in activities
associated with the use of a public library while
in the building. Patrons not engaged in reading,
studying, or using library materials shall be
asked to leave the building.
Id., Exh. E. Thus, revised paragraph 1 reflects three changes
from the previous policy: 1) there is no longer any reference
to "normal" activities; 2) qualifying patrons "shall" be asked
to leave, instead of "may" be asked to leave; and 3) there is
no longer any reference to "loitering." In addition, the
revised policy provides as follows (newly added words and
phrases are underlined, and omitted words and phrases appear in
5. Patrons shall respect the rights of other
patrons and shall not harass or annoy others
through noisy or boisterous activities, by
[unnecessary] staring at another with the intent to
annoy that person, by following another person
about the building with the intent to annoy that
person, by playing walkmans or other audio
equipment so that others can hear it, by singing or
talking to oneself or any other behavior which may
reasonably result in the disturbance of other
6. Patrons shall not improperly interfere with the
use of the library by other patrons, or improperly
interfere with library employees' performance of
9. Patrons shall not be permitted to enter the
building without a shirt or other covering of their
upper bodies or without shoes or other footwear.
Patrons whose bodily hygiene is so offensive as to
constitute a nuisance to other persons shall be
required to leave the building.
Any patron not abiding by these or other rules
and regulations of the library shall [formerly may]
be asked to leave the library premises. Library
employees shall contact the Morristown Police if
Any patron who violates the library rules and
regulations shall [formerly may] be denied the
privilege of access to the library by the library
Board of Trustees, on recommendation of the Library
Director. Any aggrieved patron may have the
decision reviewed by the Board of Trustees but only
if the patron has complied with the directive of
the Library Director.
Id. The library's counsel approved the policy, and the Director
instructed the library staff to enforce the policy. Defendants
maintain that "[a]ll the librarians' actions at issue in this
case were taken pursuant to the Library Policy, in both its
written and unwritten forms." Def. Brief at 5.*fn3 By letter
dated September 19, 1989, a staff attorney of the ACLU of New
Jersey expressed continued concern that the revised policy
afforded library staff excessive enforcement discretion which
could inflict a discriminatory impact against homeless persons
and, more generally, "might allow one class of persons to
remain and require one class to leave the premises." Id., Exh.
The revised policy adopted on July 25, 1989, remains in
effect to this date.
This court can only grant summary judgment if there are no
genuine issues of material fact and, viewing the facts in the
light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986); Wisniewski v. Johns-Manville Corp.,
812 F.2d 81, 84 (3d Cir. 1987). Because the parties' cross-motions
for summary judgment only concern the facial validity of the
library policies and not the facts of plaintiff's underlying
complaint, the single issue raised in these cross-motions —
i.e. whether the library regulations are facially valid — is
particularly suited for immediate resolution via summary
I. The Library Policy Violates the First Amendment
The First Amendment to the United States Constitution
provides: "Congress shall make no law . . . abridging the
freedom of speech, or of the press, or of the right of the
people peaceably to assemble, and to petition Government for a
redress of grievances." The Amendment applies to the states
under the Fourteenth Amendment.
The New Jersey Legislature vests the public library Board of
Trustees with the power to make and to enforce "proper rules
and regulations for the government of the library and generally
do all things necessary and proper to the establishment and
maintenance" of the library. N.J.S.A. 40:54-12; N.J.S.A.
40:54-29.13. The instant policies were instituted and enforced
pursuant to this vested authority.
As a preliminary matter, the court must determine whether the
library regulations implicate the First Amendment, ...