Judge dismisses library Internet filtering suit in California

Monday, October 26, 1998

Federal law insulates a public library from being sued for failing to install blocking software on its computers with Internet access, a California state judge ruled last week.

The judge dismissed the claims of a woman who sued the city of Livermore last May after discovering that her 12-year-old son downloaded pornographic pictures off the Internet at the public library.

She said the library's refusal to install blocking software on its computers constituted a public nuisance and a waste of public funds. In Kathleen R. v. City of Livermore, she sought an injunction to prohibit the library from continuing to allow unfettered access to the Internet.

City attorneys responded that a section of the Communications Decency Act of 1996 provided public libraries immunity for content on the Internet. 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.”
  • “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.”

In court papers, the city attorney's office argued that Section 230 pre-empts “any state law cause of action that would make an Internet service provider liable for information originating with a third party.”

City attorneys said in court papers that another provision of Section 230 made it clear that a library was to considered an “interactive service provider” entitled to the protections of the law.

That section defines the term “interactive computer service” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.”

California Superior Court Judge George Hernandez agreed with the city attorneys. Last Tuesday, Hernandez issued a tentative ruling one day before scheduled oral arguments that found Section 230 prevented the city from being sued under state law claims.

Hernandez issued the same ruling after hearing the parties' arguments on Wednesday.

Michael Millen, attorney for Kathleen R., told CNET: “I think the judge was definitely legally in error. They certainly have won round one of probably what's a three or four round battle. I would say that any sort of lawsuit based on obscenity, whether criminal or civil, is left untouched by the CDA. The judge did not agree with that. But I believe the law is clear.”

David Burt, president of the pro-filtering group Filtering Facts, called the dismissal of the lawsuit based on Section 230 “outrageous.”

“I do not think Congress intended, when it passed the Communications Decency Act, to give libraries a free pass to provide children with pornography,” he said.

Larry Ottinger, a senior staff attorney with the People for the American Way, which filed a friend-of-the-court brief along with the American Civil Liberties Union in the case, said the judge made “absolutely the right decision.”

“It is outrageous that libraries would be required to filter out information,” Ottinger said. “Congress, in enacting this portion of Section 230, specifically intended that public libraries not be held liable for information carried over the Internet that they did not create.”

Burt said that “the silver lining here is that maybe this decision will help spur Congress to pass a version of the McCain or Istook bills that require public schools and libraries to provide some blocking software.”

Ottinger said those filtering bills are both a “waste of money” and a “travesty.”

If she chooses to proceed with the case, Kathleen R. can either appeal the judge's decision or amend her complaint to file constitutional law claims, rather than the state law nuisance claims that were dismissed.

Assistant city attorney Dan Sodergren said an amended complaint alleging constitutional law claims would fail for two reasons. “First, we didn't do anything, so there is no state action,” he said. “Secondly, even if there is some sort of state action, I don't know a constitutional theory upon which the plaintiff could rely.”

A call placed to Millen was not returned.