Category Archives: Legal

Copyright and AI; an update

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In recent years, the intersection of artificial intelligence and copyright law has become a hot topic, especially as AI-generated content becomes more prevalent. The U.S. Copyright Office plays a crucial role in shaping the legal landscape for these emerging technologies. The U.S. Copyright Office administers the national copyright system and provides guidance on copyright law to Congress, federal agencies, the courts and the public. As AI technology advances, the office has been active in addressing the unique challenges it presents.

Historically, the U.S. Copyright Office has maintained that copyright protection is reserved for works created by humans. This means that purely AI-generated works, without any human involvement, are not eligible for copyright protection. However, the landscape is evolving. In March 2023, the Copyright Office issued formal guidance stating that if a human significantly contributes to the creation of a work in which AI was used, it may be eligible for copyright protection. The office has been receiving applications for the registration of works that include AI-generated content, reflecting the increasing integration of AI in creative processes. As a result, preliminary guidance has been issued for those seeking to copyright works that involve AI content and that guidance can be found here. The office has also received complaints regarding the use of copyright protected art and text in the training of AI tools.

Recognizing the growing importance of AI in content creation, the Copyright Office launched a new initiative in early 2023 to examine the copyright issues raised by AI. This initiative aims to explore the scope of copyright in AI-generated works and the use of copyrighted materials in AI training. As AI continues to transform the creative landscape, the U.S. Copyright Office’s efforts to adapt copyright law to these new realities are crucial. By providing clear guidelines and exploring the implications of AI in content creation, the Copyright Office helps ensure that copyright law remains relevant and effective in the digital age.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library.

Lindke v. Freed and O’Connor-Ratcliff v Garnier: Balancing free speech and social media moderation

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In the digital age, social media platforms have become virtual town squares where citizens engage in robust discussions, express their opinions and interact with public officials. The cases of Lindke v. Freed and O’Connor-Ratcliff v. Garnier delve into the delicate balance between free speech rights and the authority of public officials to moderate their social media pages.

In Lindke v. Freed, James Freed, the city manager of Port Huron, Michigan, maintained an active Facebook presence. His page served as a platform for both personal posts and official communications related to his role as city manager. Like many public figures, Freed received comments from constituents, including Kevin Lindke. Lindke expressed his dissatisfaction with the city’s handling of the COVID-19 pandemic on Freed’s Facebook page. Initially, Freed deleted Lindke’s comments, and later, he blocked Lindke from commenting altogether. Lindke argued that Freed’s actions violated his First Amendment rights, asserting that the page was a public forum.

In O’Connor-Ratcliff v. Garnier, two individuals, O’Connor-Ratcliff and T.J. Zane, created public Facebook pages to promote their campaigns for election to the Poway Unified School District Board of Trustees. Both also had personal Facebook pages they shared with friends and family. After winning the election, O’Connor-Ratcliff and Zane continued to use their public pages to discuss school related business. They also used their pages to solicit feedback and communicate with constituents. Christopher and Kimberly Garnier had children attending the Poway Unified School district. The Garniers often criticized the school board members and posted repetitive negative comments on the school board members’ social media posts. Initially, the negative comments were just deleted but then the Garniers’ were blocked from commenting altogether. The Garniers sued, saying their First Amendment rights were violated when they were blocked.

The central question before the Supreme Court in both cases was whether blocking the commentators constituted state action under 42 U.S.C. §1983. This statute allows individuals to seek redress when their federal constitutional or statutory rights are violated by someone acting “under color of any statute, ordinance, regulation, custom, or usage, of any State.” The Court clarified that §1983 applies only to state actors. Private individuals’ actions do not fall within its scope. Thus, the critical issue was whether Freed, Zane, and O’Connor-Ratcliff’s management of their Facebook pages constituted state action.

The Supreme Court established a two-pronged test:

Actual Authority: the individual must possess actual authority to speak on behalf of the state regarding a specific matter.

Exercise of Authority: the individual must have purportedly exercised that authority in relevant social media posts.

The Court held that because his Facebook page was used for personal and business-related posts, Freed’s actions did not indisputably amount to state action under §1983. The Court remanded the case back to the Sixth Circuit so that the Sixth Circuit could analyze the posts Lindke commented on using the new two-prong test to determine if Freed was exercising his authority to speak on behalf of the city. If so, the blocking would be problematic.

In O’Connor-Ratcliff v Garnier, the Court remanded the case back down to the Ninth Circuit to analyze the case under the new two-pronged test established by the Court. It is likely the Ninth Circuit will find as they did initially, that O’Connor-Ratcliff and Zane possessed actual authority to speak on school board matters and that they were doing so when using their public Facebook page to share school news and discuss school issues.

These decisions underscore the distinction between public and private actions on social media. Public officials must tread carefully when moderating their pages, balancing their personal rights with their official responsibilities. Citizens, too, should recognize that not every online interaction with a public figure constitutes state action. In the clash between free expression and social media moderation, it is important to remember that, while outright blocking could be problematic, public officials still have the right to moderate comments that violate their social media policies or that are not protected speech in the first place, such as obscene language, threats, fighting words, defamatory language, fraud, child porn and language that incites violence or implicates criminal conduct.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Navigating the musical wonderland of Christmas songs and copyright

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‘Tis the season to be jolly, and nothing sets the festive mood quite like Christmas music. From classics like “Jingle Bells” to contemporary hits like “All I Want for Christmas Is You,” these melodies are an integral part of the holiday experience. However, behind the joyous tunes lie complex copyright implications that shape the way we enjoy and share these festive songs.

Christmas songs are more than just music; they are a cultural phenomena that evoke nostalgia and bring people together. Many of these songs have been passed down through generations, becoming timeless classics that artists continue to reinterpret and reimagine.

Image courtesy of Pixabay.While many Christmas songs are in the public domain, allowing for unrestricted use and adaptation, others are protected by copyright. This means that the creators or rights holders have exclusive rights to reproduce, distribute, and perform the songs, subject to some exceptions set out in the Copyright Act. As a result, navigating the musical wonderland of Christmas songs involves understanding the copyright status of each tune.

Many of the so-called “classic” Christmas songs are in the public domain, which means everyone may use and enjoy them without fear of copyright infringement. Classics like “Jingle Bells,” “Deck the Halls,” “Up on the Housetop,” “Twelve Days of Christmas,” “We Wish You a Merry Christmas” and “O Christmas Tree,” as well as others, have transcended their original copyright protection and can be freely shared and adapted.

However, keep in mind that the public domain status can vary depending on the specific arrangement or adaptation of a song. For instance, a traditional version of a Christmas carol may be in the public domain, but a new arrangement by a contemporary artist could still be under copyright protection.

Many popular Christmas songs are still under copyright protection and using them without permission can lead to legal consequences. For example, if you plan to use a copyrighted Christmas song in a commercial project, such as a film, advertisement, or holiday event, you may need to obtain a license from the rights holder. Additionally, cover versions of copyrighted songs require a mechanical license, allowing artists to reproduce and distribute their own rendition.

Playing copyrighted Christmas music in the background at your home among a small audience of family and friends is likely not a copyright violation because you are likely streaming from a commercial service or the radio that permits such private use. However, piping copyright protected music publicly over a speaker for background music at the library or other public place would require a license.

Understanding the copyright implications of Christmas songs is crucial for musicians, content creators, and anyone looking to share the joy of the season. Here are a few tips for navigating the legal copyright landscape:

  1. Familiarize yourself with the public domain status of Christmas songs. Traditional carols and older compositions are more likely to be in the public domain, but it’s essential to verify the status of specific versions.
  2. If you plan to use a copyrighted Christmas song in a commercial project or performance, or to play publicly in a public space, obtain the necessary licenses. This ensures that you have legal permission to use the music and supports the artists and rights holders.
  3. Consider creating original holiday music to avoid copyright complications. This allows you to share your festive spirit without navigating the legal intricacies of existing Christmas songs.

As we celebrate the season with joyous melodies and festive cheer, it’s essential to be mindful of the copyright implications surrounding Christmas songs. Whether a timeless classic or a contemporary hit, each melody carries its own legal considerations that shape how we can enjoy and share the magic of the holidays. So, as you deck the halls with boughs of holly, remember to deck your playlists with awareness of copyright rights, ensuring a harmonious and legal celebration of the most wonderful time of the year.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Service animals in public accommodations

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The Indiana General Assembly wrapped up its 2023 session several weeks ago. Many new laws were passed including HEA 1354. HEA 1354 modifies a few things in Indiana law regarding service animals and also codifies some of the longstanding principles regarding service animals in public establishments. HEA 1354 is effective as of July 1, 2023.

HEA 1354 narrows the definition of service animal to just dogs and miniature horses. Previously, Indiana law was pretty open and recognized any animal that was trained as a hearing animal, guide animal, assistance animal, seizure alert animal, mobility animal, psychiatric service animal or autism service animal. HEA 1354 requires public accommodations to make reasonable modifications in policies, practices or procedures to permit the use of a service animal by an individual with a disability.

In determining whether reasonable modifications in policies, practices or procedures can be made to allow a miniature horse into a specific facility, a public accommodation must consider the type, size and weight of the miniature horse and whether the facility can accommodate these features; whether the handler has sufficient control of the miniature horse; whether the miniature horse is housebroken; and whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.

A public accommodation may charge the handler for damage caused by the service animal if a public accommodation normally charges an individual for damage the individual causes. A public accommodation may ask an individual with a disability to remove a service animal from the premises if the animal is out of control and the animal’s handler does not take effective action to control it or if the animal is not housebroken. If a public accommodation excludes a service animal for reasons permitted by law, the public accommodation must give the person with a disability the opportunity to obtain services without having the service animal on the premises.

It was already the case that service animals in training are entitled to access public accommodations, but HEA 1354 adds that the service animal in training must be under the control of its trainer at all times while on the premises of the public accommodation. A service animal must be under the control of its handler at all times as well, while on the premises of a public accommodation. A service animal must have a harness, leash or other tether, unless the handler is unable because of a disability to use a harness, leash, or other tether; or use of a harness, leash or other tether would interfere with the service animal’s safe, effective performance of work or tasks in which case the service animal must be under the handler’s control by other effective means, such as the use of voice control or signals.

HEA 1354 declares that a public accommodation is not responsible for the care or supervision of a service animal. Further, a public accommodation cannot ask about the nature or extent of an individual’s disability but may make two inquiries to determine whether an animal qualifies as a service animal. The public accommodation may ask whether the animal is required because of a disability and what work or task the animal has been trained to perform.

A public accommodation cannot require documentation, such as proof that the animal has been certified, trained or licensed as a service animal. A public accommodation also may not make inquiries about a service animal’s qualifications when it is readily apparent that the animal is trained to do work or perform tasks for an individual with a disability.

An individual with a disability is permitted to be accompanied by a service animal in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons or invitees are allowed to go.

A public accommodation cannot ask or require an individual with a disability accompanied by a service animal to pay a fee for access to the public accommodation or comply with other requirements not applicable to a person without a service animal.

An individual with a disability is defined as an individual:

(1) who has a physical or mental impairment that substantially limits one or more major life activities:

(2) who has a record of a physical or mental impairment that substantially limits one or more major life activities; or

(3) who is regarded as having a physical or mental impairment that substantially limits one or more major life activities.

A public accommodation is defined as an establishment that caters or offers services, facilities or goods to the general public.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Rules change for professional librarians

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Did you know that in Indiana, professional librarians need to be certified? The level of professional certificate required depends on a combination of the library’s district population size and the librarian’s position within the library itself. Having professional standards not only provides that library patrons are getting a certain level of competence when being assisted by a librarian, but is also the law in Indiana.

The professional rules for librarians are found in 590 IAC 5. The Indiana Library and Historical Board, which governs the Indiana State Library, is responsible for promulgating the rules for librarian certification. Periodically, the Indiana Library and Historical Board promulgates updates to the certification rules. The updates are primarily a result of changes desired by the broader Indiana library community. Prior to promulgating any rule changes, focus groups are created which are made up of librarians from various size libraries throughout the state. Feedback is provided by the librarian focus groups and the rule changes are primarily a result of the feedback from those groups.

As of Jan. 1, 2023, several new changes took effect as a result of the most recent rule changes enacted by the Indiana Library and Historical Board. There were some small tweaks and clarifications made to the certification rule, as well as a reorganization of the applicable definitions. However, several substantive changes took effect.

The amount of professional library work done in the normal course of the librarian’s daily activities which triggers the need to be certified is now 75%. So, if a librarian is doing professional librarian work 75% of the time or more, he or she needs to be certified. Previously, the threshold was 50%.

Indiana librarians must attend continuing education courses and earn a certain number of credits for attending such courses. The credits are known as Librarian Education Units or LEUs. The rules regarding what LEUs can count towards certification renewal were updated to make an additional category of activity eligible for LEUs. Additionally, there is no longer a sub-category of LEUs known as Technology LEUs required. Last, LEUs may be counted that were earned during a limited period of time that pre-dates the librarian actually receiving their first certificate or temporary permit.

There are two lower-level certificates for which specific college courses were required. Now, librarians may use any college level library course taken from an accredited college or university when applying for those lower-level certificates.

Specialist certificates are no longer issued. Specialist certificates were issued to individuals in non-librarian professional roles. There is a small number of folks who have these certificates and those certificates will still be valid at the respective libraries for the individual’s current position. The LEU requirements for specialist certificate holders have decreased.

Starting Jan. 1, 2023, certified librarians must keep all LEU certificates for 90 days after the later of the date their recently renewed certificate expired or the date they renewed their certificate if they renewed it after it expired. This change is to ensure they will still have their LEU certificates to prove compliance if they renew their librarian certificate late and are audited.

Directors of libraries serving a population of fewer than 3,000 who apply for certification Jan. 1, 2023 or later, must qualify for or be working towards an LC 1, 2, 3, 4, or the LC 7 certificate. Previously, the were able to also hold and LC 5 or 6 level certificate.

More details about the new changes can be found here. Questions about the revised rules, or certification in general, can be emailed here.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Small claims court for copyright

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In December 2020, a new law was signed into effect that established an easier way for individuals and businesses to sue for copyright infringement. The Copyright Alternative in Small-Claims Enforcement Act – the CASE Act – established a small claims court process within the U.S. Copyright office. A copyright claims board was established to hear copyright claims with damages totaling $30,000 or less. The CCB is a three-member tribunal staffed with attorneys who have significant copyright experience. The CCB began presiding over small claims copyright cases in June of this year.

It can be expensive to litigate a copyright claim in federal court. The CCB provides a lower cost alternative to resolve claims. Claims are capped at $30,000 which provides some protection from the possibility of a higher damage award if the claim is heard in federal court. Also, the process has been designed to facilitate self-representation, which saves the parties the cost of legal fees. Although parties still have the option of retaining legal counsel if they so choose. The process is designed to be quicker and more streamlined than a regular court proceeding. Much of the case could be decided based on written submissions. There may or may not be a hearing. Discovery is limited and the proceedings are virtual so no travel is required.

The CCB hears three types of small claims copyright cases. They can preside over copyright infringement claims, requests seeking a declaration of non-infringement and claims related to takedown notices and the Digital Millennium Copyright Act (DMCA).

Libraries and archives enjoy special treatment under the CASE Act. They may pre-emptively opt out from CCB jurisdiction altogether which would require any and all copyright claimants to proceed with suit in federal court. Libraries may alternatively just opt out from CCB jurisdiction on individual cases, which would mean the claimants in those particular cases would have to sue the library in federal court but other potential later claimants on other copyright claims could still sue the library under the CCB process. If a library opts out from the CCB process, the exemption would apply to all employees involved in the claim as well as the library as an entity. It is free to file the exemption at ccb.org. If a library wants to opt out of a CCB proceeding, the library must take action within 60 days of notice that the claim was filed.

There may be times when it would be beneficial for a library to opt out of suit under the CCB process. If the legal issues are complex, require expert witnesses, third parties or depositions, then it might be better for the case to be heard in federal court as the CCB does not typically allow depositions or expert witnesses. Additionally, the CCB does not have the authority to force third parties to testify or produce documents. There may also be strategic legal reasons for forcing the claimant to file in federal court. Conversely, there does not appear to be a mechanism for a defendant/respondent in a federal court case to opt to have a copyright case transferred to the CCB when they are sued in federal court.

A CCB determination is binding as to the parties involved but does not serve as precedence for any other case. If one of the parties disagrees with the CCB determination, that party may request reconsideration by the CCB. However, if reconsideration is denied, the losing party may seek review by the Register of Copyrights. A review by the Register of Copyrights will only be related to whether the CCB abused its discretion in denying reconsideration. In limited circumstances, the decision can be appealed to a federal court, but only under the following circumstances:

  • If the determination was issued as a result of fraud, corruption, misrepresentation, or other misconduct;
  • If the CCB exceeded its authority or failed to render a final decision in the matter; or
  • In the case of a default determination or determination based on failure to prosecute, if it is established that the default or failure was due to excusable neglect.

More information is available in the CCB handbook. Litigants can also email with their procedural questions.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

Changes to Indiana gun laws

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Effective July 1, 2022, gun owners in Indiana may go most places with their firearms, whether or not they have a license to carry and, yes, that means even at your local public library. HEA 1296, passed by the Indiana General Assembly in the 2022 legislative session, removes the requirement for firearm owners to have a license to carry a firearm in Indiana. How does this impact your local public library? Well, it doesn’t significantly, it just removes another restriction on gun owners in the state.

In 2011, the Indiana General Assembly created a law that prohibited political subdivisions from creating regulations related to firearms, including ammunition, storage and carrying. Public libraries are considered political subdivisions under Indiana law, so at that point, libraries lost the ability to keep firearms out of libraries. There are a few exceptions that would permit a library to regulate firearms in the library. For example, library boards can create and enforce a policy that prohibits or restricts the intentional display of a firearm at the library’s public meetings – meetings held by the library board or library board committees.

There is also an exception that allows employers to restrict employees who are on duty in the building from carrying a firearm. However, the employees must be allowed to keep their firearms in their locked vehicles stored in the glove compartment or trunk or otherwise out of plain view. Libraries cannot ask about firearm ownership on employment applications or make ownership or non-ownership a condition of employment.

Click here to read more about this new change in the law. To review the law as it pertains to government regulation of firearms, click here.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

A look back at 2021

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The beginning of each year for many of us is a time of introspection. We reflect on the previous year, what challenges were faced, what monumental milestones happened and what goals were or were not completed. With the new year being symbolically seen as a time for fresh starts, we look forward hopefully to seeing new milestones, meeting new goals and realizing our dreams.

Indianapolis Public Library

In true “New Year” tradition, this blog post will reflect back on 2021 but will do so on the topic of libraries and the legal issues they faced throughout the year. 2021 was the second year in a row where issues related to the COVID-19 pandemic dominated the year. Libraries were continuing to figure out the “new normal” and they were adjusting to operate in a world where masks, social distancing and frequent sanitizing were becoming the norm. Among all the normal legal issues employers and public entities face, libraries additionally faced legal issues and challenges related to mask and vaccine mandates and limitations on the use of library meeting rooms and their other public spaces.

Keeping libraries fully staffed remained an issue as frequently employees were out due to COVID-19 illness or quarantine. Story time and library programs became more challenging as the move to digital, versus in-person, programs triggered new technology and copyright challenges. There was renewed interest by libraries in patron liability waivers for programs that did occur in person, as libraries were concerned about being sued if someone got sick after attending a library event. As federal funds trickled their way down to local government entities, including public libraries, there were questions about the steps needed to legally receive and use the funds and how to account for such funds in library financial records.

The Indiana General Assembly enacted several laws related to local government and the pandemic that impacted libraries as well. For example, the General Assembly enacted a law that broadened the authority of local government, including libraries, to hold meetings electronically. Additionally, express authority was granted legislatively for important government documents to be signed electronically. Both of these changes were in response to the need for libraries and other local government entities to be able to continue to govern and maintain operations in the face of public health emergencies and other disasters. The General Assembly also passed a law that prohibited local government entities from requiring vaccine passports (proof of vaccine) making it more challenging for libraries with vaccine mandates to know for sure staff had been vaccinated.

Added to the mix of COVID-19 related issues were the individuals doing “First Amendment audits.” First Amendment audits are when a person or people enter and walk through the library (or post offices or court houses or other government/public settings) with a video camera to record their experience. If the person or people recording are able to record uninterrupted, the public agency is said to have passed the audit. Questions and concerns around patron privacy and how much libraries could legally intervene in such situations were common throughout much of the year.

As 2021 progressed, we grew to realize that the pandemic, while evolving, was not ending. As a result, goals for 2022 include continuing to find creative ways to provide effective uninterrupted library service while keeping library staff and patrons as safe as possible. One of the things libraries are doing is increasing electronic resources and internet accessibility for patrons. Another thing libraries are doing is allowing groups to use meeting rooms and study spaces but limiting capacity so that groups can social distance. Many in-person programs have resumed but have limited attendance capacity to facilitate social distancing. Enhanced sanitation practices continue.

Over time, libraries have evolved from being primarily book repositories and research institutions to being community hubs where you can hang out with your friends, hold study groups and community meetings, and find help, resources and programs on just about any topic. Libraries are resilient and accustomed to adjusting with the times. The challenges of the pandemic notwithstanding, your local library continues to remain one of your community’s best assets. Make it a resolution this year to learn about all the resources your local library provides. You might be surprised at what you find.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.

New changes regarding the administration of Indiana librarian certification

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Indiana law has required some form of librarian certification program for many years. The belief is that individuals who go to libraries for assistance should receive quality guidance and information. The way to assure this is to require some basic minimum requirements for Indiana librarians.

The Indiana State Library administers the librarian certification program for Indiana and has historically relied on technology and software provided by the Professional Licensing Agency to make this happen. For the past 13 years, the State Library has contracted with the Professional Licensing Agency to provide a number of services including maintaining our database of certified librarians, processing online renewals, and mailing out renewal reminders, audit notices, and certificates for us. As of July 1, 2021, the State Library moved all of those functions in-house.

Our new system is designed specifically for Indiana librarian certification. Since it no longer needs to meet the demands of many different state agencies, each with different requirements, our new certification portal is simpler, more streamlined, and we think it is more intuitive. Currently, the new portal only replaces the functions that the Professional Licensing Agency had been performing for us, but over the long term we expect to expand the number of services and payments that can be handled online.

Things that have changed with the new portal:

  • We are using a different credit card service to process online payments. The new service charges lower fees and those savings are passed on to the librarians so they spend less on their transactions than before.
  • Correspondence with certified librarians now takes place almost entirely by email. In the past most of our communications have been printed and sent by the Professional Licensing Agency using the U.S. Postal Service. Renewal reminders and random audit notices are now sent by email.
  • In the new portal, librarians are able to print out a digital permit or certificate as soon as it has been approved.
  • Because our new certification portal has been designed in house, it bears some similarity to other services administered by the State Library, such as InfoExpress or Indiana Legacy. We think this makes the portal easier to learn and more intuitive to use.
  • The State Library never asks for librarian Social Security numbers or birth dates. However, recent changes to the login screen for the Professional Licensing Agency’s system made it seem like we were asking for that information from librarians as an option for logging into their account. That will never happen in our new portal.
  • The public look up page for librarians will also take place through the new certification portal.
  • Librarians will no longer be required to create an Access Indiana account to log into their record.
  • The State Library is able to troubleshoot all technical issues in house which leads to faster resolution in the event an issue arises.

The State Library is very excited about the new librarian certification portal. It is an exciting new tool to help us provide services to librarians who are certified, those who wish to become certified and the public who may wish to look up a librarian to verify certification. For more information about the certification portal or certification for Indiana librarians, click here. You can check out the new certification portal itself by clicking here.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library.

Prayer in public meetings

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Can your local public library begin its public meetings with prayer? Would doing so put the library at risk of a lawsuit based on an alleged violation of the Constitution’s Establishment Clause?

Image courtesy of Pixabay

When government is involved in a religious challenge, the court may put the challenge through a three-part test known as the Lemon test. Lemon v. Kurtzman was a court case in which the U.S. Supreme Court created a test to analyze if government was engaged in impermissible entanglement in religion in violation of the establishment clause in the First Amendment to the U.S. Constitution. Government typically can be involved in activity involving religion under the following circumstances:

  • The primary purpose of the action is secular,
  • The action neither promotes nor inhibits religion, and
  • There is no excessive entanglement between church and state.

It would seem that government sponsored prayer before meetings would not pass the Lemon test and would thus violate the establishment clause. However, when it comes to prayer before government meetings, the Court appears to be more lenient. Per the Court opinions, this seems to be primarily due to the longstanding history – dating back to the drafters of the constitution – of leading legislative sessions with prayer.

A very divided U.S. Supreme Court, via 5/4 decision, found local government meeting prayer permissible in the following situation:

  • A town board invited religious leaders in the community the town served to have a turn saying the opening prayer.
  • All the religious leaders were volunteers, none were paid.
  • Even though most of the prayer leaders were Christian, it was okay because the community had predominantly Christian churches. The Court held that the town did not have to go outside of its boundaries to get prayer leaders from other religions.
  • Anyone was allowed to volunteer to do the prayer, including laypeople and atheists. The board allowed a Jewish layman and a Wiccan priestess who had read press reports about the controversy to have a turn at leading the opening prayer.
  • The town board did not interfere with contents of the prayers and let the prayer giver say his/her own prayer according to his/her own belief system. Prayers were not reviewed or vetted in advance.
  • While a number of the prayers did invoke the name of Jesus, the Heavenly Father or the Holy Spirit, they also invoked universal themes as by celebrating the changing seasons or calling for a spirit of cooperation among town leaders. They had both a civic and religious theme.
  • Over time, the prayers did not denigrate any religions nor proselytize/promote one religion over another.
  • Meeting attendees were not compelled to engage in religious observance of the prayer. Prayer was for the board members not the attendees.

With the ruling being so split on such a fact specific situation, it is very possible that a finding of an establishment clause violation could occur if any of the above facts were different. A couple federal courts in other circuits – not Indiana’s, which is the 7th circuit – found that prayer incorporated into government meetings was a violation of the establishment clause in slightly different scenarios.

  • A 6th circuit case found it unconstitutional when the county commissioners began their meetings with prayer when the prayer was always led by one of the commissioners so they could control the message and all the commissioners were Christians. This gave the impression of government sponsored endorsement of the Christian religion. Additionally, they called for the audience to stand and bow their heads/assume a reverent position which made at least one of the attendees uncomfortable, as if he was being coerced to participate in something he didn’t believe in. The court found that the prayer time was unconstitutionally coercive because a single resident was singled out for opprobrium when he objected and there was evidence suggesting that board allocated benefits and burdens based on participation in prayer.
  • A 4th circuit court found it unconstitutional when commissioners said the prayer because prayer by board members was government speech, not individual speech. The prayers did not fit within the legislative prayer exception because the practice discriminated against and disfavored religious minorities since all faiths but those of the five elected commissioners were excluded. The prayers constituted unconstitutional coercion because the board maintained complete control over the content of the prayers and the religious views excluded all but those represented by the five commissioners. The court also stated that indirect coercion may violate the establishment clause of the First Amendment when government orchestrates the performance of a formal religious exercise in a way that practically obliges the involvement of non-participants. The commissioners were also said to have made public comments indicating frustration and disapproval of minority religious views.

Based on the above cases, one might conclude that under very narrow and particular conditions, it might be ok to have community religious leaders lead a library board meeting in prayer but not an actual board member personally. However, libraries should consult with their own legal counsel before engaging in such a practice to ensure the way they are instituting the practice is constitutional. One option to consider is the board could hold a moment of silence before each meeting that people could use to say their own prayer to themselves if they so desire.

This blog post was written by Sylvia Watson, library law consultant and legal counsel, Indiana State Library. For more information, email Sylvia.