Livermore Library Seeks Dismissal of Blocking Software Case

(July 13, 1998)  The City of Livermore filed a brief  in California State Court on Friday asking the court to throw out a mother's lawsuit to force the city's public libraries to install blocking software. Both the City of Livermore, and the ACLU in a separate amicus curiae brief, argue that Section 230 of the Telecom Act of 1996 gives the city immunity from suit.

The Plaintiff is named in court papers only as Kathleen R. She is the mother of a boy who used computers at the Livermore Public Libraries to download pictures of naked women in alluring positions from porn sites. She filed a Complaint against the City of Livermore on May 28 to compel it to change its policy of not installing any software to block or filter out access to obscene websites, and to filter out material harmful to children on computers which children use.

The American Civil Liberties Union (ACLU) brief, in which People for the American Way (PFAW) also joined, raises additionally the secondary argument that installation of blocking software would constitute a Constitutionally impermissible prior restraint of speech. The City of Livermore's brief also devotes lesser space to arguing that each of the three legal theories plead by the Plaintiff warrant summary dismissal.   

The suit has some similarity to suit in pending in Loudoun County, Virginia. The Loudoun County library board decided to install blocking software on all computers. Some residents, represented by the ACLU, sued to force the city to stop using blocking software. In Livermore the city decided not to install blocking software. A resident, with the help of a public interest law firm, the Pacific Justice Institute, sued to force the city to use blocking software.

In the Loudoun case, a group of publishers whose websites were temporarily blocked by the library's software are also participating in the suit, with representation by PFAW.

Loudoun County filed a motion for summary judgment on the grounds on several ground, including that it had immunity from suit under §230(c)(2)(A), a section which Congress included in the Act just for this situation. Yet, Judge Leonie Brinkema denied the motion in her April 7, 1998 Opinion. She did not, however, expressly overturn it. She construed it not to apply.

Kathleen R.'s Complaint 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 allowing access to obscenity, or from allowing children access to materials which are harmful to children. It also asks for monetary damages, not for past damages, but for future damages to Plaintiff's children.

Her claims are all novel and unprecedented in the context of school or library Internet access policy. She could very easily loose all her claims on their merits.

A public nuisance generally is an interference with the common right of the general public or an indefinite number of persons, or an unreasonable interference with the health, safety, peace, or comfort of the community. It is most frequently applied in the context of real estate. It would be a stretch to extend it to computers in libraries.

The City of Livermore argues in its brief that to plead public nuisance a plaintiff must allege some interference with her own use of her property; yet, she is not even a property owner. (See, Brief, at page 10.)

The City of Livermore argues that a technicality requires dismissal of the "waste of public funds" claim.  It argues that under California statutes and case law, one must pay county property taxes in the county where the suit is brought.  It alleges that Kathleen R. does not own property.  The City's brief also wisecracks that the City was not wasting money: it was the Plaintiff's son who was.  (See, Brief, at page 9.)

As for the "premises liability" claim, the City argues that under California law, this theory only applies to a "dangerous condition of public property," and there is no dangerous condition or defect with the library property.  (See, Brief, at page 13.)

However, both briefs filed filed on Friday assert as their primary argument the theory that the City has immunity from this type suit under Section 230 of the Telecommunications Act of 1996. The argument is based on a tortured and untenable construction of §230, and in particular, §230(c)(1).

This is the clause which gives online services, such as America Online, immunity from liability for defamatory statements made by others, such as people who post in their chat rooms and bulletin boards, or outside content providers, such as Matt Drudge.

Indeed, almost all of the lawsuits in which courts have applied this section have been against AOL, and have dealt with these situations. Persons who have been defamed by AOL subscribers or content providers have tried to sue AOL for defamation, and had their cases dismissed on §230(c)(1) grounds.

§230(c)(1) is not a blanket grant of immunity.  It only provides that one cannot be held liable as a publisher. Publisher status is an element of liability for defamation (libel and slander). It does not immunize anyone from other types of liability. For example, it does not immunize AOL or anyone else from liability for copyright violation.

In the Livermore case, Kathleen R. is not suing the City for defamation. Nor is she suing the City in the capacity of a publisher. Nor are any publishers a party to the suit.

Livermore argues that Congress nevertheless intended to insulate libraries from suits to compel the use of blocking software.

Congress expressed its policy in §230(b)(3) and (4):  it sought to encourage the use of blocking software. Moreover, it expressly granted immunity to those who decided to use software.  §230(c)(2) provides that no one "shall be held liable on account ... any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

Despite a clear Congressional expression of support for the use of blocking software, and the express grant of immunity to those who use it, the City of Livermore and the ACLU now argue that the intent of Congress was just the opposite -- to protect people from blocking software.

Prior Restraint of Speech

The ACLU argued secondarily in its brief that the library could not install blocking software, because doing would constitute a prior restraint of protected speech, in violation of the First Amendment. The ACLU's arguments in the Loudoun case, as well as in Reno v. ACLU, and other Internet cases, have been based almost exclusively on the First Amendment. However, the City of Livermore did not even raise this issue in its brief.

The facts of the Livermore case relevant to this issue differ form those in the Loudoun case.  In this case Kathleen R. asks only that obscenity be blocked on all computers, and that computers used by children be blocked also for material "harmful to minors". In Loudoun County the library put blocking software on all computers. Its policy prohibited obscenity, child pornography, and material harmful to minors (which it defined to include soft core pornography).

The Supreme Court, and Judge Brinkema, have stated that the state can outright ban obscenity and child pornography, but not pornography. Loudoun failed to get a dismissal from Judge Brinkema, in part because it policy covered websites "harmful to minors", and because it applied that standard to adults as well as children.

In contrast, Kathleen R.'s attorney's have carefully drafted her complaint to request blocking only of obscenity, and of material which is harmful to minors on computers used by minors.

Hence, aside from the issue of developing and administering blocking software that would actually do what Kathleen R. wants, the sort of blocking she requests meets Constitutional muster, as the courts are interpreting the Constitution today.

Conclusion

Kathleen R. does not like her city library's policy on Internet access. The library is administered by officials who are ultimately responsible to the residents through the electoral process.  Her policy preference was not adopted. Her side lost. Now she has brought a lawsuit based on contorted and inapplicable legal theories. Similarly, residents of Loudoun County who are upset with their elected library board's decision have sued them over policy. In both suits the Plaintiffs are represented by, or assisted by, interest groups bent on making public policy. And both suits include monetary claims, mainly to intimidate public officials.

The plaintiffs in both Loudoun County and Livermore are attempting to use the courts to enact their policy preferences in lieu those adopted by duly elected public officials.

So far Judge Brinkema in Virginia has been willing to substitute her preference for the legislative acts of the Library Board and the U.S. Congress. Judge Hernandez has made no ruling in the Livermore case.

The City of Livermore's brief was written by Dan Sodergren. The ACLU's brief was written by Ann Brick and other attorneys with the ACLU Foundation of Northern California, although an ACLU press release suggests that veteran Internet litigator Ann Beeson was also involved. Kathleen R.'s attorney is Michael Millen.