Appeal Briefs Filed in Livermore Library Filtering Case

(October 21, 1999) The City of Livermore and the ACLU filed their appeal briefs with the California Court of Appeal on Monday, October 18. Both seek affirmance of the trial court's dismissal of a resident's suit to compel Livermore's public library to use filtering software on computers with Internet access that are used by children.

The Plaintiff in the trial court, and Petitioner in the Court of Appeal, is the anonymous Kathleen R. She is the mother of a boy who used a computer at a public library in Livermore, California, to access the web.

He downloaded pictures of naked women. Mom was upset.

She filed her original Complaint in state court on May 28, 1998. There is no law in California that requires public libraries to use porn filtering software. Hence, she asserted three novel legal theories. First, she alleged that the use of public funds to pay for children's access to pornography constitutes a "waste of public funds". Second, she alleged that the library's policy constitutes a "nuisance." Third, she plead "premises liability." She also filed an Amended Complaint on November 3, 1998, which added another claim -- substantive due process.

The trial court judge, George Hernandez, dismissed the suit in January. He did not reach the merits of any of Kathleen R.'s state law claims. Rather, he ruled that Section 230 of the Telecommunications Act of 1996 bars the state law causes of action. He did not write an opinion explaining his ruling.

Kathleen R. filed her Opening Appeal Brief on July 16, 1999. The City of Livermore filed its appeal brief on October 18. The ACLU Northern California and People for the American Way also filed their amicus curiae brief on October 18. There will also be a second amicus curiae brief filed by the League of California Cities and the California State Association of Counties. They are waiting for the court to sign an order granting them leave to file.

The Livermore brief argues that the decision of trial court Judge Hernandez should be affirmed. It argues in detail that none of the three state law causes of, nor the 14th Amendment "substantive due process" claim, have any merit. Moreover, it argues that Livermore has immunity under the California Tort Claims Act.

The brief also argues at length that Section 230(c)(1) of the Telecom Act of 1996 bars the state law claims of Kathleen R. This is the grounds upon which Judge Hernandez based his decision.

The three state law claims are, at best, novel and unprecedented. The trial court could easily have dismissed the suit based upon a rejection of these claims, without reaching the federal preemption question.

Application of Section 230(c)(1) to the Livermore library entails a tortured construction of the language of the statute. First, Livermore argues, as it must, that the library is an "interactive computer service." The library provides people the use of computers which have access to the Internet provided by an interactive computer service.

The only precedent on this point is Judge Brinkema's April 7, 1998 ruling in Mainstream Loudoun v. Loudoun Library (Loudoun I). In this opinion she construed another immunity clause of Section 230 which provides "interactive computer services" immunity from suits based on their use of filtering software. The Loudoun County library asserted this clause when it was sued for using filtering software. In denying the claim of immunity, Judge Brinkema wrote:

"... §230 was enacted to minimize state regulation of Internet speech by encouraging private content providers to self-regulate against offensive material; §230 was not enacted to insulate government regulation of Internet speech from judicial review. Even if §230 were construed to apply to public libraries ..."

If both the interpretation of Judge Brinkema and the interpretation urged by Livermore were accepted, then the term "interactive computer services" would have two different meanings when used in two different clauses of the same statute.

The Livermore brief also argues, as it must, that Section 230(c)(1) covers all causes of action, despite the wording of the statute, which restricts its application to publisher liability. Other cases applying this section have involved attempts to hold America Online, and other interactive computer services, liable for the libelous or slanderous statements of other people who posted or published their material on AOL servers. Kathleen R. has brought no action for libel or slander.

The ACLU/PFAW amicus brief argues that the appeals court should hold that Section 230 bars Kathleen R.'s action. It does not even argue the merits, or lack thereof, of the state law claims.

This serves the policy goals of the ACLU and PFAW. Both oppose the use of filtering software by schools and libraries. If the appeals court were to affirm the dismissal on the basis of rejecting the state law claims, then the decision would not have precedential value, except as to those three California causes of action. On the other hand, if the appeals court were to rule that Section 230 bars suits against libraries for not using filtering software, then that would be an interpretation of federal law. It would establish a precedent that the ACLU and PFAW would assert in other states.