California library prepares to defend Internet-use policy

Wednesday, October 14, 1998

One week from today a California state court is scheduled to hold a hearing in the first lawsuit ever filed against a public library for failing to install blocking software on library computers to protect minors from pornography on the Internet.

The case — Kathleen R. v. City of Livermore — is being closely watched by public library officials and free-speech advocates nationwide.

“The Livermore case is one of the two major cases that will define First Amendment standards” as they apply to Internet use in public libraries, said Larry Ottinger, an attorney with the People for the American Way.

The other case — Mainstream Loudoun v. Board of Trustees of the Loudoun County Library — involves a group of citizens who are challenging a Virginia public library's policy of installing blocking software on all of its computers.

The Livermore case began when a woman identified in court papers as Kathleen R. discovered that her 12-year-old son, Brandon P., had downloaded scores of pornographic pictures from the Internet at the Livermore Public Library in June 1997.

Kathleen R. sued Livermore last May, arguing that the city's refusal to install filtering software to protect minors constitutes a public nuisance and a waste of public funds. She is asking the court to grant an injunction prohibiting the library from continuing to allow unfettered access to the Internet.

The library rejected these attempts, saying that “freedom of speech and expression are central to the successful maintenance of a free society.”

City attorneys filed a motion to dismiss, arguing that the lawsuit is precluded by a still-in-force section in the Communications Decency Act of 1996 that prevents an Internet service provider from being held liable for material originating from a third party.

Two subparts of Section 230 of the CDA provide:

  • “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”; and
  • “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.”

According to city attorneys and the American Civil Liberties Union, which has filed a friend-of-the-court brief with the People for the American Way in the case, a public library, as the provider of an interactive computer service, cannot be sued for harmful material generated elsewhere in cyberspace.

Michael Millen, Kathleen R.'s attorney, said: “I am confident that the judge will throw out the city's Section 230 argument. It is inconceivable to believe that Congress intended the CDA to serve as a protective shield to those who knowingly provide obscene and harmful material to minors.”

Millen said he would file his response to the city's motion to dismiss later today.

However, Livermore Assistant City Attorney Dan Sodergren said: “You have to have a legal cause of action before you can get injunctive relief. Section 230 clearly pre-empts causes of action against a public library.”

Sodergren also said Kathleen R.'s public-nuisance theory lacks merit. “The public nuisance theory is based on ownership of property. Now the plaintiffs are stretching it to extend to the Internet.”

Sodergren wrote in court papers: “Plaintiff has not properly alleged a private nuisance because she has not alleged any interference with the use and enjoyment of her property. In fact, there are no allegations in the complaint that plaintiff owns property, much less property within or adjacent to the Internet.”

“In order for an individual to claim there is a public nuisance, a private citizen must have a property interest and show that they are affected in a different way than the general public,” Sodergren said. “Unfettered Internet access is not unique to her and her son. If it is a problem, it is citywide problem.”

Ottinger agreed: “This is not a proper application of the public-nuisance theory, because there has not been a threshold showing that there is even a problem relating to unfiltered Internet access.”

However, Millen sees no standing problems and believes the public-nuisance concept will work. “Because Brandon P. was exposed on multiple occasions, I don't think we will have a problem showing that he was specially damaged,” he said.

The Mainstream Loudoun case could also be decided very soon. In that case, a group of Virginia citizens have sued a public library in federal court for taking a far different approach than the Livermore library.

Instead of allowing unfettered Internet access, the Loudoun County Library provides blocking software on all library computers. The plaintiffs contend the mandatory filtering policy infringes on First Amendment free-speech rights.

The judge heard oral arguments in that case at a summary judgment hearing in late September.

Millen said that even if the federal judge in the Mainstream Loudoun case strikes down the mandatory Internet filtering policy, it will not adversely affect his case: “There is a big, big difference between the Virginia case and the Livermore situation. The case in Virginia involves blocking software for all patrons. We are not asking the court to filter everybody as in the Mainstream Loudoun case.”

Millen said his client simply wants to prevent totally unfettered access. “We think the library should either require parental permission before a minor could use a computer terminal with complete Internet access, or go to filtered terminals for children and unfiltered terminals for adults,” he said.

Both Millen and Sodergren agree on at least one point: that the City of Livermore and Mainstream Loudoun cases are the “test cases” for library Internet filtering policies.