The Volokh Conspiracy
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Seattle Public Library "Considering" Whether to Cancel Meeting of Trans-Skeptical Feminist Group
But any such cancellation would violate the First Amendment, because it would involve viewpoint discrimination in a place opened by the government to private speech.
The Seattle Times (Crystal Paul) reports:
Community members including transgender locals and trans allies have inundated the Seattle Public Library with calls and emails, asking the library system to cancel an upcoming event hosted by the Women's Liberation Front—a self-described "radical feminist organization" that has publicly espoused what critics call anti-trans views.
The group's event, titled "Fighting the New Misogyny: A Feminist Critique of Gender Identity," is publicized as "a critical analysis of gender identity" that will "make powerful arguments for sex-based women's rights," according to the event page. The event, scheduled to be held Feb. 1 in the Microsoft Auditorium at the Seattle Public Library – Central Branch, has placed the library at the center of a firestorm over how it can maintain its commitment to evolving ideas of intellectual freedom, provide access to information for the entire community, and be an inclusive space where all patrons feel safe and welcome.
Here's an excerpt from the Chief Librarian's statement:
A nonprofit group called the Women's Liberation Front made a booking last month for space at the Central Library to hold a private event labeled as a women's rights talk and presentation. It appeared to be a very simple booking request that was processed like any other. Our Event Services staff followed Library protocol, as always. Per our Intellectual Freedom and Meeting Room Booking policies, any group can book meeting spaces; and any group that books a private event at the Central Library can charge for the event.
Library leadership became aware of this booking and its controversial nature just yesterday. Similar events held at two other public libraries this year have been met with significant community protest in relation to the group's views on transgender rights. We have been working to get up to speed on the implications of this event as they relate to our legal responsibilities, our role as a public institution, and our role as a safe, socially conscious space.
We have heard from patrons who believe we should not let this event happen in a Library space due to the group's views. We have heard from others who say that not allowing this event to happen will endanger the Library's founding principle of intellectual freedom. As a library valuing intellectual freedom, inclusivity, and community respect, our leadership is considering every option to ensure we respond to concerns about this event thoughtfully and in line with our values.
Controversial groups like these can test our limits as democratic centers of free speech and intellectual freedom, as well as our limits as a united community and organization. I hope you can recognize the difficult situation this has created for us. We are exploring every option we have in response to this moment, talking to other libraries who have been through it, scheduling discussions with our transgender staff and community, and consulting with the City of Seattle's legal department on our options.
The law here is clear: When a library opens space for private groups to meet, it creates a "limited public forum," in which the library may "not discriminate against a speaker's viewpoint." Ninth Circuit precedent (Faith Center Church Evangelistic Ministries v. Glover (9th Cir. 2006)) so holds, dictated by the Supreme Court's broader First Amendment law, which has dealt with such programs in public schools and universities.
Viewpoint-neutral content discrimination in such limited public fora may be constitutional; for instance, the Ninth Circuit controversially held that a library may decline to open up its property to "pure religious worship" (though it may not exclude religious viewpoints on topics on which secular viewpoints are allowed). But viewpoint-based discrimination, such as the exclusion of messages that convey supposedly hateful or offensive or dangerous ideas, is unconstitutional (see Matal v. Tam (2017), which makes clear that discrimination against supposedly disparaging ideas or language is viewpoint-discrimination).
There is a hot debate in America about how the law and society should deal with people who identify as a gender that doesn't match their anatomical or chromosomal gender. Should there be antidiscrimination laws that bar discrimination against transgender people? Should existing laws be interpreted as already barring such discrimination? How should various single-sex policies, whether for single-sex bathrooms, single-sex locker and shower facilities, or single-sex sports teams be applied when a person's self-identification, anatomy, and chromosomes don't fully match (a topic that arises especially often for transgender people, but may arise for others as well)? One side shouldn't be able to block the other side from speaking in places that the government has opened up to a wide variety of private views. And indeed First Amendment law forbids the government from engaging in such discriminatory exclusion of views that some communities may oppose.
