SUPERIOR COURT OF CALIFORNIA,
Plaintiffs hereby submit this OPPOSITION TO DEMURRER OF DEFENDANT CITY OF LIVERMORE TO AMENDED COMPLAINT.
Plaintiffs do not want the library to play the role of censor or monitor. Plaintiffs want the library to stop distributing pornography to youngsters. The Mainstream Loudoun court has already come up with one suggestion, namely that "filtering software could be installed on only some Internet terminals and minors could be limited to using those terminals." (Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, ___ F. Supp. ___, ___, 1998 U.S. Dist. LEXIS 18479, *42 (E.D. Va. 1998) (found at ACLU Appendix Ex. 11, p. 13).
[begin page 2]
This is not a case of an injured library patron trying to argue that a commonplace tort should become a substantive due process violation. This is about a library that is willfully and intentionally serving as a distributor of obscene pornography to children.
The 5th Amendment, applied to the states via the 14th Amendment, prohibits state actors from depriving anyone of life or liberty without due process of law. It is well settled that a child has a liberty interest in personal security and freedom from restraint and infliction of pain. (Wood v. Ostrander (1989) 879 F.2d 583, 589 (court summarizes Supreme Court authority that "child had liberty interest in personal security and freedom from restraint and infliction of pain").)
A childs constitutional right to personal security by necessity includes two kinds of substantive due process limits applicable to the government. As the Supreme Court recently noted in County of Sacramento v. Lewis (1998) 523 U.S. ___, ___, 118 S.Ct. 1708, 1716, 140 L.Ed.2d 1043, 1057,
For some reason, both the City and amici view this case as if it were merely about an alleged abuse of power by the executive branch. They cite strings of cases in which hapless plaintiffs are suing government executive agents such as parole officers, police officers, swimming pool code enforcement officers, social workers, etc., generally for doing too little. To obtain judgment in such circumstances, as Lewis points out, "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." (Lewis, 523 U.S. at ___, 118 S.Ct. at 1716, 140 L.Ed.2d at 1057.) Plaintiffs indeed contend that the librarys affirmative conduct in [begin page 3] this case shocks the conscience and would thus pass muster under any of the cited cases. (See infra at III.)
However, this lawsuit is not simply about official conduct which happened in the past. It is also about a legislative enactment and official policy by the City that the library is to provide children with all materials on the Internet, including obscene pornography. As the Court in Griswold v. Connecticut, 381 U.S. 479, 497, 85 S.Ct. 1678, 14 L.Ed.2d 510, 523 (1965) (Goldberg, J., concurring) stated,
Defendant also apparently agrees that this is the test. (Citys Ps&As at 9.) Because this case involves the fundamental right and liberty interest of personal security and freedom from infliction of pain (violated by providing children obscene pornography and psychologically harming children them), and because there is no "compelling" reason to give children any access to the Internet at all, the only question remaining is whether is the librarys policy is significantly responsible for the harm.
The allegations of the complaint show that the library and its policy are the source of harm in this matter.
In the typical personal security/freedom-from-infliction-of-pain case, the injury is caused by the use of an instrumentality and not its mere viewing. For instance, a state policy allowing children to be stabbed by state actors would be constitutionally infirm, but not a state policy allowing the display of knives. A city policy allowing police to beat children with bats [begin page 4] would be constitutionally infirm, but not a policy allowing police to give bats to children to play with.
Plaintiffs complaint contends, however, that allowing children to simply view obscene pornography seriously injures them. In this case, then, the government is to be considered responsible for infringing on a childs liberty interest and fundamental right of personal security and freedom from infliction of pain merely by giving the child visual access to obscene pornography.1 The injury is complete at the time of distribution.
Library policy specifically allows children to access obscene pornography as detailed in the complaint. The City has never suggested otherwise, and the official library policy states that "preventing users from accessing . . . graphics that that might be . . . inappropriate to minors is not technically feasible."2 (Amici include the Policy as Exhibit A to their filing.)
The library is integrally involved in providing pornography and should be considered the actual source of it. Imagine that, pursuant to policy, the library installs an obscene pornography display terminal in which patrons simply push a large red button and obscene pornography is displayed on the screen. The library could try to argue that children who push the red button are responsible for the images conjured up. This would be untenable, however, because the likelihood that such images would appear would be high given the way the library set up the terminal. There would be no doubt that the library policy was significantly responsible for providing obscenity to minors, and this would be a clear constitutional violation in light of the harm it causes to minors.
[begin page 5]
On the other end of the spectrum, assume that library policy allow patrons to use slide projectors. If pranksters inserted pornographic slides into the slide projectors from time to time, it would be difficult to suggest that library policy allowed the display of pornography on the projector. After all, the library could reasonably argue, such a use was never contemplated by the policy and that the display was accomplished only through the skill and cunning of the prankster.
The issue becomes positioning Livermores policy on the spectrum of responsibility. Plaintiff would submit that Livermores policy is almost the same as the "red button" example.
If given the opportunity, plaintiff will present evidence that children can very easily access obscene pornography on accident. One need only type in words such as "wet," "fever," "goodboy," "houseparty," "fun," "soapy," "adult," "girl," or "whitehouse," hit return, and with Internet Explorer and often Netscape Navigator, immediately without further clicking obscene pornography will be displayed on the screen.3
Worse, however, is using a search engine. If allowed to go to trial in this case, plaintiff will present evidence from an Internet expert who would testify on the vast numbers of web sites that are conjured up when one types in innocent sounding words into Internet search engines such as Excite, Yahoo, and AltaVista. While using a search engine does take an additional two clicks of the mouse (once on the browser "Search" button to bring up a search engine, and then once on the results obtained from the engine), plaintiff is prepared to present evidence from a child development expert who will suggest that even the most unsophisticated child can perform these operations with virtually the same ease as pushing the red button in the example above.
[begin page 6]
Given the ease with which children can access obscenity on accident, it should come as no surprise that youngsters can bring up countless obscene images by either directly trying sites with sexually-related names or by typing in sexually related words into a search engine.
The City has already made its position clear, stating that "[i]f any direct action was taken, it was taken solely by Plaintiffs son when he took the steps necessary to access pornography on the Internet."4 (Citys Ps&As at 6.) This argument harkens back to the "red button" example given above. Assuming it was and is as easy for a child to call up obscenity as plaintiffs suggest, it is no defense to suggest that because a child performed the ultimate step the library is somehow not responsible for its machine providing obscenity to a child who knows no better.
Even if there was no policy in question here, the library executives in this case have violated the constitution.
The library is correct that to be liable for a substantive due process violation alleging that a library actor placed someone in danger, "there must be direct affirmative conduct on the part of the [library.]" (Citys Ps&As at 5.) The library then argues that the only actor who placed Brandon P. in danger was Brandon P. himself when he "took the steps necessary to [begin page 7] access pornography on the Internet." (Id. at 6.) This notion, that a child is responsible when an adult gives him or her access to obscene pornography, is dealt with above. Suffice it to say that the library is the key distributor, and its staff and technicians make it simple to access pornography.
Although amici suggests that Carlton v. Cleburne County (8th Cir. 1996) 93 F.3d 505 is "dispositive," the case is quite distinguishable. The Carlton court found that the dangerous condition of rotting bridge cables was created not by the county but by natural rust and that it would be an "impossible burden" to "impose an affirmative duty to protect the general public from a situation created by the processes of nature." (Id. at 509.) It is not nature which has set up Livermores computer terminals to display pornography to children.
The case of DeShaney v. Winnebago County Department of Social Services (1989) 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249, though cited by both defendant and amici, is also unhelpful.
The Supreme Court granted certiorari in DeShaney to settle the conflicts about "when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individuals due process rights." (DeShaney, 489 U.S. at 194, 109 S. Ct. at 1002, 103 L.Ed.2d at 258.) The case involved a social worker who once temporarily rescued a beaten child from an abusive father, allowed the boy to return, and after repeated warnings and suspicions about abuse, did nothing. The child was ultimately beaten into a coma by the father.
In DeShaney, the defendant social worker never contributed to the abuse and was never present during the abuse. The court concluded that "the harm was inflicted not by the State of Wisconsin, but by Joshuas father" and that "[t]he most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." (DeShaney, 489 U.S. at 203, 109 S. Ct. at 1007, 103 L.Ed.2d at 263.). The allegations of this complaint are nothing similar.
[begin page 8]
In fact, the elements of a typical substantive due process case based upon executive malfeasance has elements quite different than those at bar, as suggested by the following chart:
[begin page 9]
The ACLU suggests that plaintiffs are seeking unconstitutional remedies. (ACLU Brief at pp. 10-13.) This is incorrect, for while the prayer of the complaint suggests certain results, it hardly demands a particular implementation. With regard to the problem of children harming themselves by viewing obscene images on the librarys computers, the City could solve the present problem any number of ways. As an example, plaintiffs would be satisfied if the city would prohibit minors from using the Internet unless the minor had verified written parental permission. Another option would be for the library to set up unfiltered adult terminals and filtered childrens terminals, with children being allowed access to the former only with verified written adult permission.
The ACLU argues that the prayer is defective in that it requests a prior restraint. First, it is doubtful that there are any constitutional concerns here at all: the First Amendment was designed to protect people from the State, and was not designed to protect one branch of the State from another branch of the State. The reason for this is self-evident: if the State desires to speak but finds it cannot, it need only pass rules allowing it to speak. Plaintiffs would [begin page 10] challenge the ACLU to produce any authority which suggests that a decision by a County court allegedly limiting a city librarys provision of materials somehow implicates the First Amendment rights of the library. If specific patrons have specific complaints after a solution is implemented, such could dealt with in the course of time.
More importantly, however, is the fact that Plaintiffs have never suggested a specific system such as that invalidated in the case of People ex rel. Busch v. Projection Room Theatre (1976) 17 Cal.3d 42 (State v. private bookstore). Even the Busch court saw no problem with permanently enjoining the showing of specific obscenities found to be obscene by a jury. As the Busch court summed up:
(Id. at 60.) The court is thus asked to allow the case to proceed to trial and, after a verdict in favor of plaintiffs, fashion an appropriate remedy.
When state actors provide obscenity to children, those actors infringe the fundamental right children have to personal security and freedom from infliction of pain. The librarys Internet policy has caused and is causing the library to actively provide obscenity to children with little effort on the part of the children themselves. The policy is unconstitutional and should be enjoined.
Dated: January 6, 1999