Parent Sues Livermore Library to End Children's Access to Internet Pornography

(June 1, 1998)  A parent of a child who downloaded pornographic pictures at a Livermore California public library filed a lawsuit on May 28 asking the Court to enjoin the library from allowing children access to obscene materials on the Internet, and to obtain monetary damages for any future harm.

Related Page: HTML Copy of Plaintiff's Complaint, 5/28/98.

The suit was filed in state court in Alameda County by Michael Millen, an attorney affiliated with the Pacific Justice Institute on behalf of an anonymous parent.   "I don't see this as a free speech issue because children do not have a constitutional right to see pornography," said Millen in a telephone interview yesterday.   "This is a case about parental rights."

"There are solutions to the problem. One might be to divide the computers in the library into an "adults’ section" and a "children’s section". Computers in the adult’s section would have unrestricted Internet access. Computers in the children’s section would have installed on them commercially recognized blocking software which would prevent minors from viewing obscene and harmful matter. People under the age of 18 years would only be allowed to use terminals in the children’s section unless they had written permission from their parent or guardian allowing access to the adult terminals."

Michael Millen, attorney for Plaintiff, Kathleen R., Letter to City of Livermore, 3/31/98.

According to Thomas Curry, attorney for the Defendant, City of Livermore, "all members of the community have free and equal access to the entire range of library resources, regardless of content, approach, format or amount of detail. These rights extend to all users of the public library including minors."  (See, Curry Letter to Millen, 4/17/98.)

The Library refused Plaintiff's request to establish procedures to prevent children from using its computers to access pornography.

This case is the "flip side" to a suit now pending in Loudoun County, Virginia.  In that case a public library installed blocking software on all of its Internet access computers to prevent access to pornography.  A group of library users and a group of Internet publishers represented by People for the American Way and the ACLU, respectively, sued the library because it had installed blocking software.

Related Page: Summary of Loudoun Library Case.

The situations differ, however, in that in Loudoun County, blocking software was installed on all computers, and affected children and adults alike.  In the Livermore case, the Plaintiff is merely asking that children be required to use computers with blocking software, while adults would use computers without blocking software.   Moreover, children could use the unblocked computers, with parental permission.

Section 526a.  California Code of Civil Procedure.  An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or city and county, or any public officer; provided, that no injunction shall be granted restraining the offering for sale, sale, or issuance of any municipal bonds for public improvements or public utilities. An action brought pursuant to this section to enjoin a public improvement project shall take special precedence over all civil matters on the calendar of the court except those matters to which equal precedence on the calendar is granted by law.

The Complaint against the City of Livermore asserts three legal theories.  First, the Plaintiff 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.  Second, the Plaintiff alleges that the library's policy constitutes a "nuisance."  Third, the plaintiff pleads "premises liability."

The Complaint asks that the Court enjoin the library from continuing to allow children access to obscene materials.  It also asks for monetary damages, not for past damages, but for future damages to Plaintiff's children.

The Plaintiff has not filed a motion for a preliminary injunction.  However, the City of Livermore has 30 days to file and answer, and may file a dispositive motion at that time.   Moreover, California procedure provides that cases for waste of public funds have priority on the trial calendar.

Michael Millen predicted that "it does not matter who wins or loses.   This is going to be appealed."

There is also legislation now pending in the House and Senate that would require any schools or libraries receiving funds from the FCC's Schools and Libraries fund (aka "e-rate") to install blocking software.  So far, the Senate version, S 1619, has been approved by the Senate Commerce Committee, while there has been no action taken on the House version, HR 3177.

Related Page: Summary of Blocking Software Bills in U.S. Congress.