Judge Dismisses Livermore Library Filtering Suit

(January 15, 1999)  Judge George Hernandez dismissed the suit Kathleen R. v. City of Livermore on Thursday, January 14.  The Plaintiffs had sought to compel the City's public libraries to install software that blocks obscene material on computers used by children.  The Plaintiffs will appeal.

Specifically, Judge Hernandez, the California state court judge presiding in the case, sustained the demurrer of the City of Livermore to the Plaintiffs' amended complaint, and dismissed the case.  That is, the library won.  In October, he sustained a demurrer to the original complaint, but did not dismiss the case; he allowed the Plaintiffs to amend the complaint to allege new legal theories.

The Plaintiffs filed their amended complaint on November 3, 1998, alleging a fourth claim -- that the "actions and policy of the City of Livermore violate and have violated Brandon P.’s rights to substantive due process as set forth in the U.S. Constitution".  Substantive due process is only very rarely invoked by the courts.  Indeed, many judges deny that the doctrine of substantive due process is valid.  It has never been applied in this any fact situation similar to this one.  The City promptly filed a second demurrer.   Judge Hernandez's decision of January 14 was not unexpected.  Moreover, Plaintiffs are not likely to obtain a reversal on the substantive due process issue.

Judge Hernandez did not write an opinion explaining either decision.  The only statement from the court on this most recent ruling was as follows:

"The matter having been taken under submission on January 13, 1999, comes now the Court and renders the following ruling:

The Demurrer to Plaintiff's First Amended Complaint for Injunctive Relief is sustained and the First Amended Complaint for Injunctive Relief is dismissed without leave to amend."

The City of Livermore runs a public library system which has computers with Internet access.  These computers do not have blocking software, and children's access to computers is not restricted.  The lead plaintiff, named only as Kathleen R. in the public record, is the mother of a boy who used these computers to download pictures of naked women.  The City then refused her request to install blocking software on computers that children use to access the Internet.  This lawsuit followed.

The original Complaint asserted three novel and untested legal theories.  First, the Plaintiffs alleged that the use of public funds to pay for children's access to pornography constitutes a "waste of public funds" under Section 526 or the California Code of Civil Procedure.  Second, the Plaintiffs alleged that the library's policy constitutes a "nuisance."  Third, the plaintiffs plead "premises liability."

However, Judge Hernandez never ruled on any of these three theories.  He sustained a demurrer to the original complaint on the defendant's theory that the suit is barred by Section 230 of the Telecommunications Act of 1996.  This was an unprecedented and contorted interpretation of § 230.

§ 230(c)(1) is not a blanket grant of immunity from suit.  It provides immunity only from "publisher or speaker" liability.  The plaintiffs' complaint did not seek to impose "publisher or speaker" liability on the City of Livermore.   Most of the cases in which other courts have applied this section have involved attempts to hold America Online, or other interactive computer services, liable for the defamatory statements of others posted in AOL chatrooms or other areas.  Since § 230 provides that AOL, and other interactive computer services, cannot be treated as the publisher of these defamatory statements, it obtained dismissals.

The Plaintiffs stand a far better chance of convincing an appellate court that Judge Hernandez's § 230 ruling is reversible error.  However, such a reversal would not necessarily result in the Library being compelled to use filtering software on computers used by children.  It would merely send the case back to the trial court for further proceedings on the three theories plead in the original complaint: waste of public funds, nuisance, and premises liability.

Michael Millen, attorney for the Plaintiffs, told Tech Law Journal after the ruling that "the matter will be appealed to the California Court of Appeal."   Earlier in the week he stated that "this story will not end any time soon, unless Sen. McCain passes legislation soon.  ... At that point the suit will become moot."

Sen. John McCain (R-AZ) was the lead sponsor in the 105th Congress of S 1619, the Safe Schools Internet Act.  It was just one of several blocking software bills that would have required that all schools and libraries receiving federal funds use blocking software.   He will likely reintroduce the bill in the current Congress.

Dan Sodergren is the attorney for the City of Livermore who is representing the Library in this case.

The Livermore Library Director, Susan Gallinger, stated after the ruling that, "The Livermore Library Board evaluated several approaches for providing access to the Internet and ultimately decided that the Library did not want to be in a position of telling anyone what they can read, see or hear. The Board feels very strongly that it is a parent's responsibility to determine what their children are investigating on the Internet."  (See, press release.)