To Sue or Not To Sue — That is the Question

Every now and again there will be discussions about the wisdom of my having sued a couple of libraries over their barefoot rules. Usually the complaint is that there are a bunch of libraries that now have rules against bare feet because I lost those lawsuits.

I thought I’d take a closer look at just how much effect those lawsuits really had on barefoot access to libraries.

Obviously, those lawsuits had to have some effect on library rules. The first one was written up in a library journal, and there was a book for librarians that mentioned it.

So, guilty as charged.

But there is more to it. From what I can tell, most of those rules were happening, and would have happened, anyways.

You see, libraries were already creating formalized rules, and including barefoot rules, before my lawsuits. Part of that was just that rulemaking was getting more formalized. As society got more complicated, more and more libraries were realizing that they really had to go through an official process to create and promulgate their rules. So they did so.

And when they did so, they looked to the rules that had already been upheld by a federal court, the rules in Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992). Notice the date of that—it long precedes any of my lawsuits.

Richard Kreimer was a (mostly) homeless man who would spend much of his days in the Morristown Library. He was smelly and wandered about mumbling and harassing other patrons. As Morristown worked to relieve themselves of his annoyance, they ended up going through a couple of iterations of library rules, formalizing them, trying to get them to hold up in court. This, I think, is what really kick-started the modern trend of rules against bare feet in libraries.

But, you ask, Kreimer wasn’t wandering around the library barefoot, was he? No, he wasn’t. But Morristown did have a rule against bare feet, which the court declared unconstitutional . . . and then didn’t.

You see, when the District Court invalidated parts of Morristown’s rules, that happened to include a barefoot rule (yes, long before my lawsuits). However, Kreimer had never challenged the barefoot rule, so when the District Court realized that, they modified their order. You can see that when you compare their orders of May 22, 1991. The first one, from 10:00am, says

ORDERED that paragraphs 1, 5, 9, and the final two
unnumbered paragraphs of the Library “Patron Policy” are declared
null and void on their face and unenforceable;

while the second, amended order, two hours and 15 minutes later, says

ORDERED that paragraphs 1, 5, 9, and the final two unnumbered paragraphs of the Library “Patron Policy” are declared null and void on their face and unenforceable, excepting that nothing contained herein is meant to declare null and void the regulations requiring the wearing of shoes or shirts, or barring the playing of audio equipment or talking or singing which disrupts the library or its occupants subject to the parameters set forth in the accompanying opinion;

Had the court suddenly done a careful analysis of the barefoot rule? Of course not. They just realized that that portion of the rule was not before the court, so they had no reason to rule on it.

But then that whole incident morphed when it hit the Court of Appeals. The Court of Appeals mentioned the incident in a footnote, without really understanding what had happened.

Finally, we reiterate that the Library is a limited designated public forum. The Library need only permit use of its facilities which is consistent with the intent of the government when opening this forum to the public. Even within the scope of these consistent uses, it seems obvious that the Library may regulate conduct protected under the First Amendment which does not actually disrupt the Library. For example, we do not doubt that a Library may limit the number of books which a patron may borrow from it at any time, even though no request has been made by another patron for the book which the patron at his or her borrowing limit desires to withdraw. Similarly we do not doubt that the Library may limit the length of time during which a book may be borrowed. Indeed, the district court itself implicitly acknowledged this point when it modified its order so that it did not invalidate the rule requiring the wearing of shoes, since it can hardly be imagined that a person simply by being barefoot would disrupt the Library.

We further reject the district court’s intimation that the rules would prohibit the wearing of an armband for political purposes. It is clear to us that, so long as the patron is engaged in the peaceful and non-disruptive use of the Library, the adornment of an armband is irrelevant.

Again, they just state (this is called dicta) that a shoe rule is okay, and they incorrectly state why the District Court modified its order. But we have no idea why a shoe rule would be okay. In fact, if the Appeals Court had applied their public forum analysis, they would have required all sorts of information on just why such a rule would be acceptable. And they didn’t.

But this then became the justification for barefoot rules in libraries long before my lawsuits. And part of my lawsuit was to get the courts to actually apply the proper level of scrutiny to such barefoot rules.

In the end, my deep suspicion is that all my lawsuits did was change the focus for the justification for barefoot rules in libraries. They were already using the Kreimer case to justify their rules; after my case, they just cited me.

Even after my lawsuit, not every library made a barefoot rule. Either they didn’t really bother with published rules, or they had left-over rules from before Kreimer, or they didn’t care.

But, there was one thing that often made them create a barefoot rule—having a barefoot patron appear. In my experience, that’s what really made a lot of libraries make rules. You see, it doesn’t really matter whether they already had a barefoot rule (prompted by either Kreimer or me) if they were going to make one as soon as somebody tried to use their library barefoot (and then justified it, using Kreimer or me). My lawsuit was really irrelevant to that.

If the library was run by people who hated bare feet, my lawsuit was irrelevant as to whether they’d make a barefoot rule (and find justification for it). And if they didn’t care about bare feet one way or another, they wouldn’t, and didn’t, bother making a rule.

I saw this numerous times, after my lawsuit. The following libraries around me did not have a barefoot rule, even years after my lawsuit:

• The Columbus Law Library.
• The Ohio State University Libraries.
• The Stark County Library (Canton, Ohio).
• The Worthington Library.
• The Pickerington Library.
• The State Library of Ohio.

But then the first four of them instituted a barefoot rule. Why? Because I tried to use them. That would have happened regardless of my lawsuit. They just knew they didn’t want a barefooted person in their libraries, and used whatever justification they could. At this point it happened to be my court case, but it could just as easily have been Kreimer.

The last two? The Pickerington people knew me from long back, so they didn’t see the need. And the State Library of Ohio had a director who was more interested in providing service to well-behaved patrons than in making exclusionary rules.

So, my lawsuit losses, while quite unfortunate, probably didn’t change much when it comes to libraries instituting barefoot rules.

It should also be kept in mind that, legally, the results only apply in a fairly limited geographic area. The federal court case (in which the gravamen was about a First Amendment right to receive information) only applies in the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee). My later state suits against the Columbus and then Fairfield County libraries only apply in their respective state court districts (the 10th and the 5th).

Of course, that doesn’t mean that libraries all over the country can’t cite them, or use them as support for their rules. However, it does mean that a dedicated barefooter (with plenty of money) could try filing suit in all those other places to try to find a better set of judges and get a better outcome.

I know there are those who wish I’d never pursued my lawsuits, and think my loss is the cause of their woes. But as I wrote above, I don’t think that is completely justified. Those rules would be their regardless of my lawsuits.

But now we know where things stand.

There is always a risk to these sorts of lawsuits. If I’d managed to win (if the judges weren’t already so sure of the answer that they just made up stuff as they needed to to justify their rulings) I’d be the hero instead of the goat. (Baaaa.)

But also keep in mind that a lot of civil rights battles are lost at the beginning. Just look at what happened with the rights of blacks, or the rights of women, or the rights of gays. There are still battles going on with the right of Dressing Constitutionally. Early losses allows a cause to hone their arguments and to get a feel for the lay of the land. Sometimes it takes a change in the attitudes of the country (though, frankly, I don’t think we are numerous enough to be able to do that the way blacks, women, or gays were able to).

I really don’t think we are that much worse off now than before my lawsuits. Libraries wanting to ban bare feet would have always found their justification somewhere. If we are too timid to challenge them in the only way that has power over them, then we acquiesce silently but are still in the same boat. We’re just guaranteeing our loss.

And let me leave you with an image of a good shoe rule, that was in my local library. There are people out there (librarians even!) who really can come up with a rational shoe rule.

A Library Shoe Rule