Kathleen R. Library Filtering Appeal Proceeds

(August 14, 1999) Kathleen R. filed her original appeal brief with the Court of Appeal of the State of California on July 16. She is attempting to compel the Livermore Public Libraries to install filtering software on Internet access computers used by children. The attorneys have agreed to an extended briefing schedule that means that the Court will probably not decide the appeal until well into the year 2000.

Kathleen R. is the mother of a boy who used a computer at a public library in Livermore, California, to access the web. He used the computer to download pictures of naked women in alluring positions who appealed to his prurient interest.

She filed her original Complaint on May 28, 1998. She asserted three novel legal theories. First, she 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, she alleged that the library's policy constitutes a "nuisance." Third, she pleads "premises liability."

She also filed an Amended Complaint on November 3, 1998, which added a substantive due process claim.

The trial court judge, George Hernandez, dismissed the suit in January. He did not reach the merits of any of Kathleen R.'s claims. Rather, he ruled that Section 230 of the Telecommunications Act of 1996 bars the state law causes of action. He did not write an opinion explaining his ruling.

Kathleen R. filed her notice of appeal in March. She filed her original appeal brief in July.

The brief, written by Michael Millen, argues that the trial court incorrectly applied Section 230, and that the City of Livermore's failure to use filtering software violates substantive due process rights.

The brief argues that Section 230 does not provide libraries immunity from suit. Instead, "§230 provides broad protection for online service providers, particularly in defamation actions such as Zeran v. America Online, Inc. ... (online service not liable for refusing to remove defamatory messages); and Blumenthal v. Drudge ... (online service not liable for refusing to remove columnists defamatory column.) The instant case, however, was not affected by the CDA." [Parentheses in original; citations omitted.]

The appeal brief relies heavily on Judge Brinkema's decision in the Loudoun County Library case. "In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library (1998) 2 F.Supp.2d 783 (E.D.Va), the library argued that because it was an "interactive computer service" it was immune from judicial review for its decision concerning its treatment of obscene and pornographic material."

However, Judge Brinkema rejected this argument. Kathleen R.'s appeal brief, ironically, quotes Judge Brinkema:

"§230 was enacted to minimize state regulation of Internet speech by encouraging private content providers to self-regulate against offensive material; §230 was not enacted to insulate government regulation of Internet speech from judicial review."

The appeal brief also argues the substantive due process claim at some length. Courts rarely sustain substantive due process arguments.

The case, which has attracted national television new coverage, is also attracting amicus curiae participants. The American Civil Liberties Union (ACLU) and People for the American Way submitted amicus briefs in the trial court proceeding. They also plan to file an amicus brief with the appeals court. Ann Brick, of the ACLU, will draft the brief for the ACLU and PFAW.

However, more significant is the amicus participation of California cities and counties. The League of California Cities and California State Association of Counties will file a brief in support of the City of Livermore. The brief will be prepared by Michael Traynor and Matthew Brown, both of the law firm of Cooley Godward.

Attorneys for the City of Livermore and its amicus curiae supporters met earlier this week to coordinate their actions. Dan Sodergren described this as "a big meeting tomorrow trying to coordinate all of our amicus support."

"It will be helpful to show that there is a common interest," said Sodergren.

It is not clear yet whether any amicus briefs will be filed in support of Kathleen R. Her attorney, Michael Millen, stated that "ACLJ has indicated an interest, Trinity Law School, and another Texas organization."

The case will not be decided for quite some time. The attorneys agreed to 60 day extensions of deadlines for filing briefs. This means that the final brief will not be due until about December 31, 1999.  "We gave each other very long extensions in this case," said Millen. "Once the briefing is done, it could easily be six to eight to twelve months just to get a note from the court saying, 'Do you want an oral argument?'"

"This is a very slow process," concluded Millen.