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July 22, 2005

Gay papers aren't obscene, can remain in library for now

Upper Arlington library board will form a policy later, which could put all free papers behind a counter

Upper Arlington, Ohio--Two free newspapers distributed in Upper Arlington library lobbies are not obscene and are not harmful to juveniles, says a preliminary report presented at a library board meeting July 12.

So, for now, the Gay People’s Chronicle and Outlook Weekly will continue to be distributed at the libraries.

But a separate legal opinion by the Franklin County prosecutor’s office says that all free publications could be removed from the lobbies and put behind a counter.

The report was prepared by library board president Mark Magill and trustee Dan Boda, who had held a public hearing five days earlier on whether the two lesbian, gay, bisexual and transgender papers should be removed from the Columbus suburb’s library system.

Led by resident Mark Bloom and Upper Arlington council member Tim Rankin, a small group wants the papers taken out of the libraries, where many free publications are available to be picked up.

The board meeting drew a much smaller crowd of about 40 people, compared to the over 120 attending the public hearing. Boda recapped the nature of the hearing.

“Even though almost all of the 42 people [speaking at the hearing] addressed the Gay People’s Chronicle and Outlook,” he said, “we are forming a policy that addresses all aspects of all the free material available at our libraries.”

Boda said that the operations committee had not come up with a permanent policy as of the July 12 board meeting, but that they were in the process of doing so.

Two issues had been examined by Magill and Boda: if the two gay publications should be immediately removed for being first, pornographic or second, harmful to juveniles.

Boda said that after consulting with the city’s prosecutor’s office, they determined that the two papers “were neither.” They “don’t fit any of those definitions,” he said.

Boda said that a proposed policy would be available at the board’s next meeting on August 9 and that there would be “no action at this point.”

Franklin County Prosecuting Attorney Ron O’Brien’s office wrote an opinion on the matter’s legal aspects for the library.

Written by First Assistant Prosecuting Attorney Patrick E. Sheeran, the document has three main findings.

First, if and when the board decided to take any action, “materials may not be totally banned unless they are found by the board to be obscene.”

According to Boda, the two publications have not been found to be obscene.

The second finding was that, “Access to such material may not be restricted unless the board finds them to be, or tending to be, materials that are harmful to juveniles.”

Boda said at the board meeting that the two publications had not been determined to be any such thing.

The third finding states, “The Upper Arlington Library Board may constitutionally avoid making such determinations by removing all materials from the foyer and restricting them to library patrons who request them.”

The legal brief, which cites precedents in similar matters, also says, “The fact that some materials may be harmful to juveniles does not authorize a library from an outright prohibition of those items. In fact, the Supreme Court has held to the contrary: a total ban is not constitutionally permissible.”

According to the opinion, whatever policy the library announces will not include an outright ban of the Gay People’s Chronicle or Outlook since doing so would create a violation of First Amendment protections.

At the board meeting, Magill said that anyone who wished to further address issues heard during the public forum could do so to the board in writing.

On the day of the board meeting, there were no copies of the Gay People’s Chronicle or Outlook in the foyer.

Upper Arlington library spokesperson Christine Minx said that she was not sure why there were no copies available. She couldn’t confirm whether interested patrons had picked them all up, or if someone had thrown out all the copies of the two papers.

Mark Bloom, one of the people leading the charge to remove the papers, earlier told a newspaper that he and his children have done this in the past.

Assistant prosecutor Sheeran said that, should either the Gay People’s Chronicle or Outlook press charges against Bloom for throwing out the papers, the charges would have to go through the Upper Arlington city attorney, not the Franklin County Prosecutor’s office.

He also added that he has not been asked by the Upper Arlington library to research whether Bloom’s actions constitute either theft or unauthorized use of property. The legality would have to be examined more closely once charges were brought, he noted.

 

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