Kathleen R. Files Brief in Internet Filtering Case

(January 14, 2000) Kathleen R., the plaintiff and petitioner in a legal action against the City of Livermore to compel it to use filtering software on computers used by minors, filed her reply brief with the California Court of Appeal on January 10.

Kathleen R. is the mother of a boy who used the a computer in a Livermore public library to access pornography on the Internet. She filed a complaint is California state court in 1998 seeking to force the city to install filtering software on computers used by minors. The City of Livermore prevailed in the trial court early last year. She then brought the present appeal. The filing of this reply brief completes the briefing process.

The reply brief seeks "to put to rest a sort of overriding argument made by Respondent and amici that the CDA was somehow intended to immunize libraries from state and federal lawsuits concerning the libraries’ willful choice to provide minors with obscene pornography."

Section 230 of the Communications Decency Act provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The City of Livermore's brief, as well as the amicus brief of a group of California cities and counties, and the amicus brief of the ACLU and PFAW, all argue that this clause insulates public libraries from suits like that brought by Kathleen R.

The reply brief argues that in passing the CDA the Congress never intended to allow the distribution of pornography to minors; to the contrary, it sought to protect children from pornography. The brief aruges that section 230 was also intended to give interactive computer services, such as prodigy, compuserve, and America Online, immunity from suits based on the content of material posted by others.

The reply brief also argues that the even if section 230 is applicable, it would be no defense to the claims plead by Kathleen R. The complaint alleges 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. It also alleges that the library's policy constitutes a "nuisance." Third, it alleges "premises liability." Finally, it alleges substantive due process.

Application of section 230 to immunize the Livermore library in the present case would entail a tortured and untenable construction of the statute. On the other hand, the underlying claims of the Plaintiff -- nuisance, waste of funds, premises liability -- are likewise a stretch. Substantive due process is a doctrine long abandoned by the courts.

The defendant could have simply argued that each of the underlying causes of action is inapplicable to the use of library computers. The trial court judge could have dismissed the case on these arguments. Instead, the defendants and amici have sought to create and new a whole new meaning for section 230; and the trial court has gone along.

But then, it appears from the legal arguments being advanced that the parties, the amici, and the trial court have all been more interested in using this suit to make policy.

It remains to be seen what this appeals court will do.