California library faces new challenges in Internet filtering lawsuit

Tuesday, December 29, 1998

Public libraries have a constitutional duty to protect children from online pornography, alleges the Concord, Calif., woman who sued a California public library for failing to install blocking software on its computers.

The plaintiff, identified in court papers as Kathleen R., recently filed a new complaint alleging constitutional-law claims instead of the state-law claims that were dismissed in October.

Last May, Kathleen R. sued the city of Livermore after discovering that her 12-year-old son had downloaded scores of pornographic pictures from the city's public library. She alleged that the library's refusal to install blocking software on its computers constituted a public nuisance and a waste of public funds.

In her lawsuit, Kathleen R. v. City of Livermore, she sought an injunction to prohibit the library from allowing unfettered access to the Internet.

However, in October, California Superior Court Judge George Hernandez ruled that a provision of the Communications Decency Act of 1996 provides a public library immunity from the plaintiff's state-law claims.

Two parts of section 230 of the CDA stipulate 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.”
  • “No cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with this section.”

The plaintiff had the choice of appealing Hernandez's decision or amending her complaint to include constitutional law claims.

Last month, Kathleen R. amended her complaint to allege that the City of Livermore has a constitutional obligation to protect children from obscenity and pornography on library computers.

The complaint now reads: “The actions and policy of the City of Livermore shock the conscience and, at a bare minimum, display a deliberate indifference to the health and welfare of children such as Brandon P., who are invited into the library premises by the library.”

According to the complaint, the library's failure to install blocking software violates minors' substantive due process rights.

Michael Millen, Kathleen R's attorney, said: “If the CDA trumps the state-law claims, then the Constitution trumps the CDA, an act of Congress.”

Last week, the city and the American Civil Liberties Union of Northern California filed legal documents in opposition to Kathleen R's suit, asking the judge to dismiss the latest claims.

Ann Brick, a staff attorney with the ACLU of Northern California, said: “The plaintiff's theory that the Constitution requires a public library to assume the role of censor turns well-established principles of constitutional law on their head.

“The role of the library is to provide uncensored access to the widest possible variety of views on any given subject,” Brick said. “Any attempt to limit the availability of controversial material is forbidden by the First Amendment.”

However, Millen says there must be some efforts to protect kids from harmful material online.

“The only solution cannot be to have mom come hold the kids' hands while they go to the library. We will ultimately prevail in this lawsuit, even if we have to get the law changed,” Millen said.

He said that a hearing had been set for Jan. 13.