Judge Rules § 230 Blocks the Livermore Library Suit

(October 21, 1998) The California State Judge presiding in the case Kathleen R. v. City of Livermore ruled on Tuesday, October 20, and reaffirmed in a hearing on Wednesday, that the Plaintiffs' claims that the Livermore Library must install blocking software on computers used by children is barred by Section 230 of the Telecommunications Act of 1996. The Plaintiffs plan to appeal.

Judge Hernandez's tentative ruling was placed on a court telephonic recording at 5:00 PM PT on Tuesday, October 20. It stated:

"Kathleen v. City of Livermore. The Demurrer to the Complaint is sustained with ten days leave to amend pursuant C.C.P. § 43.10(e). The first through third causes of action are defective because the federal Communications Decency Act prohibits the imposition of liability on the city library for providing access to material that is transmitted over the Internet by others.  See, 47 U.S.C. § 230(c)(1)."

The attorneys who prepared the briefs, and participated in the hearing, are Michael Millen (for Kathleen and Brandon R., Plaintiffs), Dan Sodergren (for the City of Livermore, Defendant), and Ann Brick (amicus curiae, ACLU Northern California). George Hernandez, Judge of the Superior Court, Alameda County, made the decision. He will not likely prepare a written opinion.

The Plaintiffs are named in court papers as Kathleen, and her minor son, Brandon.  Young Brandon used computers at the Livermore Public Libraries to download pictures of naked women from porn sites on the Internet. Upset, his mother filed a Complaint against the library in California state court. She seeks a court order compelling 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 Complaint asserts three novel and untested legal theories. First, the Plaintiffs allege 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 allege that the library's policy constitutes a "nuisance." Third, the plaintiffs plead "premises liability."

The City of Livermore responded by filing a Demurrer on July 10. This essentially asked the court to dismiss the case without a trial or evidentiary hearing on the merits. The City was supported by an amicus curiae brief filed by the American Civil Liberties Union, Northern California Chapter.  These briefs argued both the merits of the state law causes of action plead in the complaint, and raised the argument that 47 U.S.C. 230 bars the suit.

The wording of Section 230(c)(1) provides immunity only from "publisher or speaker" liability. The plaintiff's complaint did not seek to impose "publisher or speaker" liability on the City of Livermore.

"This is unbelievable," said Michael Millen after the tentative ruling. "The Judge is definitely incorrect." However, he added: "It does not matter who won and who lost -- the losing side was going to appeal."

At the hearing on Wednesday Judge Hernandez reaffirmed his tentative ruling. As is customary when a demurrer is sustained, he allowed the Plaintiffs two weeks to file an amended complaint. However, it is likely that Judge Hernandez would sustain a Section 230 based demurrer to any other state law cause of action against the library. Consequently, Millen stated at the hearing that he is contemplating asserting a cause of action in the nature of a federal due process challenge to the substance of the Library's decision, based on the argument that it "shocks the conscience of the court." Since, the Constitution is a higher law than a federal statute, said Michael Millen, Section 230 would not bar such a claim.

Whether the Livermore Library's decision to provide computer's without blocking software has shocked the conscience of Judge Hernandez is another matter.

Dan Sodergren stated after the hearing that the Plaintiffs would not prevail with such an approach.  "If you choose not to filter, there is not a constitutional argument to get around section 230."

However, the Plaintiffs may forego any further proceedings in the trial court, to accelerate the appeals court process. As of Wednesday evening, Millen and Sodergren were discussing entering into a stipulation to a final judgment against the Plaintiffs.

The appeal would be filed with the California First District Court of Appeals, which covers northern California.  It would be assigned to a three judge panel. An appeal from that court would go to the California Supreme Court.

Dan Sodergren was pleased with the ruling.  "Clearly, the Judge was correct in his decision. Section 230 applies in this case." He added that "the Judge's decision was important because it was the first time the court has applied section 230 to cover a public library."

The ACLU's Ann Brick was similarly pleased.  "I think it was a very important ruling.  Congress drew a line when it enacted section 230."  People "remain free to sue whoever is responsible for putting material on the Internet," but you can't sue the ISPs and libraries.  Brick said that this is "so that public libraries don't become political footballs."

Michael Millen does not believe that this is what Congress intended.  "If this succeeds, there are going to be a lot of people who ask, 'Is that what we meant by Section 230?'" He also predicted that the Congress will soon require blocking software on all computers funded by the federal government (such as through the "e-rate".)

Congress came close, but ultimately failed, this year to enact a bill (S 1619) offered by Sen. John McCain (R-AZ) that would have required all schools and libraries receiving subsidies under the "e-rate" to install blocking software.  Congress also failed to enact a slightly broader measure offered by Rep. Ernest Istook (R-OK) that would have covered any computers subsidized by federal funds.  However, in the closing days of the session, Congress passed the Child Online Protection Act (COPA), which bans distribution to minors over the web of material that is harmful to minors.

Millen predicted: "COPA this time ... all recipients of federal funds next time."

And if that happens, the ACLU will challenge it in court. "It is very likely that we would challenge a law like that," said Brick. (The ACLU has already vowed to challenge COPA.)

Brick said that "it is an issue that is not going to go away."  This might be all that Millen and Brick can agree on.

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