"In this case we hold that a city is not subject to suit for damages or an injunction for offering unrestricted access to the Internet through computers at a public library."
Kathleen R. v. City of Livermore (Alameda County Superior Court), a lawsuit filed on May 28, 1998 is, in at least some respects, the flip side of the Loudoun County lawsuit, Mainstream Loudoun v. Board of Trustees, etc.. In Mainstream Loudoun, the Plaintiffs challenge the use of censorware in the public library system on First Amendment grounds. By contrast, the City of Livermore offers uncensored internet access in its public library system, and the Livermore Plaintiff (full name withheld in court documents) challenges the right of the library to continue to do so. Many of the case documents are available from the Timeline below.
On March 6, 2001, a California Court of Appeal upheld the lower court's dismissal of the Plaintiff's case. Those unfamiliar with the lower court proceedings should read on; those who wish to go directly to our discussion of the Court of Appeal Opinion should go here.
According to the Complaint, Kathleen R. is the mother of Brandon P., a male minor. She alleges that, at various times in 1997, Brandon went to the library, accessed sexually explicit images on the internet, downloaded them onto a floppy, printed them out at a relative's home, and allowed other minors to see the prints, all without the consent of Brandon's parents. The Plaintiff's attorney, Michael Millen, affiliated with the Pacific Justice Institute, wrote a letter to the City on March 31, 1998. Referring to the library's policy as an "Internet pornography policy", Millen demanded that the library stop allowing minors unrestricted access to obscene and harmful matter. In his words, "... this is not a free speech issue.... This is a child safety issue."
On April 17, 1998, the City Attorney sent a letter responding to Millen. The letter stated that the library Board of Trustees "supports the idea that all members of the community have free and equal access to the entire range of library resources, regardless of content, approach, format or amount of detail. These rights extend to all users of the public library including minors." By his silence, the City Attorney rejected Millen's "suggestions" as to how to deal with the alleged problem. The lawsuit followed.
1. Plaintiff's Initial Complaint
The initial complaint sets forth three legal theories, each based on state law, not federal law. The first theory is that the library is engaging in a waste of public funds by using such funds to allow access to obscene or harmful to minors material. The second is that allowing minors to access sexual or harmful to minors material is a public nuisance. The third is "premises liability", a theory that the library premises are unsafe to children because of the presence of sexual or harmful to minors material.
Plaintiff styled the pleading as a "Complaint for Injunctive Relief." It is that, but it is also much more. Injunctive relief, simply put, is a Court order that one party engage in a particular type of conduct (a so-called mandatory injunction); or not engage in a particular type of conduct (prohibitory injunction). A true claim for injunctive relief does not include a claim for monetary damages, but Plaintiff has done just that. In paragraph 37, for example, Plaintiff alleges that:
"37. Plaintiff further requests declaratory relief stating that the City of Livermore is legally liable for all future damages to plaintiff's children caused by the children accessing, acquiring, displaying and/or printing sexual and other material harmful to minors on any library computer connected to the internet or the World Wide Web."
On July 10, 1998, the City responded to the Complaint with a legal document called a Demurrer, supported by a Memorandum of Points and Authorities. On that same date, led by a team of veteran First Amendment lawyers from the American Civil Liberties Union Foundation of Northern California, the ACLU, ACLU of Northern California and People for the American Way filed an amicus curiae brief in support of the City's Demurrer.
A Demurrer, not unlike a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), serves a particular purpose. Keeping in mind that at this early stage of a lawsuit, the Plaintiff has only alleged the existence of certain facts in the Complaint, rather than proving them, a demurrer says to the Court, in effect, "even if the factual allegations of the Complaint ultimately are proven to be true (which Defendant does not concede), those facts, if and when proven, are inadequate to give the Plaintiff any basis for relief from the Court." In litigation, the process of proving (or disproving) facts often is time-consuming and expensive. A demurrer, if successful, is a way to short-circuit the process. "Typical" lawsuits usually cannot be disposed of on demurrer, but Kathleen R. is anything but a typical lawsuit. The Demurrer by the City, supported by amici, sought to quickly cut to the chase, as it were.
The City's Demurrer honed in on issues of both California and federal law. Briefly, the California law argument is that, like all states, California is a sovereign entity; that as such, neither it, nor its political subdivisions, can be sued without a waiver of that sovereign immunity; that any waiver of immunity bearing on this case would be in the California Tort Claims Act; but that the Tort Claims Act does not provide for any relevant waiver.
However, from a national standpoint, the more important argument made by the City, and supported by amici, is the federal law argument — that the City is immunized from suits of this type under Section 230 of the Communications Decency Act of 1996, 47 U.S.C. §230.
[Most readers will know that, in June 1997, the U.S. Supreme Court struck down portions of the C.D.A. in ACLU v. Reno. However, the portion at issue here was not involved in that case, and is quite alive and well.]
The City made two arguments with respect to §230; first, that it provides federal immunity from liability to service providers for the speech of third-party content providers; second, that in enacting §230, Congress intended to, and did, preempt the field — that is, the federal law, where it applies, preempts any state law which may be to the contrary.
§230(c)(1) provides, simply enough, that:
"(1) TREATMENT OF PUBLISHER OR SPEAKER- 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."
As to whether a public library offering internet access to its patrons is an "interactive computer service", the question is directly answered by §230(e)(2):
"The term 'interactive computer service' means 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."
Finally, as to preemption, §230(d)(3) provides that:
"(3) STATE LAW- Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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."
So what's missing? §230(c)(1) provides that an "interactive computer service" is not to be treated the same as a content provider; §230(e)(2) that a library offering net access is an interactive computer service; and §230(d)(3) that inconsistent state laws may not be used as a basis of liability. What's missing is the word "immunity", not in the statute itself, but clear (to those who read statutes and legislative intent for a living) nonetheless. In fact, in Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, cert. denied June 22, 1998, _____ U.S. _____, the Fourth Circuit Court of Appeals expressly held that "[b]y its plain language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." (id. At 330.) Zeran went on to explain why:
"The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized Internet and interactive computer services as offering 'a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.' Id. § 230 (a) (3). It also found that the Internet and interactive computer services 'have flourished, to the benefit of all Americans, with a minimum of government regulation.' Id. § 230 (a) (4). Congress further stated that it is 'the policy of the United States . . . to reserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.' Id. § 230 (b) (2)."
"None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States 'to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.' Id. § 230(b) (5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages."
Id. at 330-331.
So the immunity of the library is clear, right? Not to Kathleen R. or her attorney. They argued in their Opposition to the Demurrer that, in the Loudoun County Public Library case, the library defendant argued unsuccessfully that the action by Mainstream Loudoun was barred by the §230 immunity. In that case, the Court's April 1998 Ruling on the Loudoun library defendant's motion to dismiss (E.D. Va. 1998, 2 F.Supp 2d 783) squarely rejected the immunity defense.
At least one supporter of censored internet access has argued that those who oppose censored internet access in public libraries are being hypocritical for trying to use §230 one way in the Loudoun case and another in the Livermore case. Quite a quandary, yes?
No. Under the commerce powers granted to it by the United States Constitution, Congress has wide latitude to legislate on matters affecting interstate commerce, which the internet clearly does. Congress even has the power to preempt state or local laws when it deems it necessary to do so, and so Congress did in enacting §230. But not even Congress can make laws which expressly contradict the terms of the Constitution, and one such term has relevance here:
Heard of it? Thought so. The Loudoun County case is a direct constitutional challenge to the Loudoun County library use of censorware, arguing that the use of censorware in a public library violates the First Amendment. "Congress shall make no law" which abridges First Amendment rights, and thus cannot make a law immunizing a library from a claim that it is abridging such rights. In marked contrast, Kathleen R. is not a direct constitutional challenge. As Plaintiff's attorney said himself: "... this is not a free speech issue.... This is a child safety issue."
It is that simple, and the Kathleen R. Court apparently agreed. On October 21, 1998, the Court sustained defendant's Demurrer, determining that the Complaint is barred by the §230 immunity provision. The Court gave Plaintiff two weeks to see if she could find a way to plead her case which does not run afoul of the federal immunity.
2. Plaintiff's First Amended Complaint
On November 3, 1998, Plaintiff filed her First Amended Complaint. Plaintiff did not try to replead any of the legal theories rejected in her initial Complaint. Rather, in order to circumvent the immunity of section 230, Plaintiff attempted to plead a direct violation of the constitutional rights of her son, Brandon P. Plaintiff alleged, among other things:
Based on such allegations, Plaintiff asserted in her amended Complaint that there has been a direct constitutional violation of her son Brandon's rights; specifically, that his rights to substantive due process under the Fourteenth Amendment and 42 U.S.C. §1983 have been violated. The Fourteenth Amendment provides in pertinent part that: "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law," while the relevant language from 42 U.S.C. §1983 is that:
"[e]very person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."
"In a nutshell, the Plaintiff was now asserting that the City was knowingly doing direct harm to her son (and all minors who use the library).
Since Congress cannot pass laws which abridge constitutional rights, Plaintiff's amended Complaint, unlike her initial Complaint, was not subject to a §230 immunity defense. Indeed, both the City's demurrer to the amended Complaint and the amicus brief of ACLU in support of the demurrer implicitly acknowledged the point, since neither argued that §230 is a defense to a claimed constitutional violation. However, that is rather different from saying that the amended Complaint made allegations which, if proven, would provide a basis for relief. Rather, both the City and the ACLU argued in those documents that even if Plaintiff can prove the facts alleged, they are insufficient as a matter of law to show a violation of Brandon's constitutional right to substantive due process.
Every person has a right not to be deprived by the state of life, liberty or property without due process of law. However, as the Supreme Court has made clear, that does not mean that every (alleged) violation of a person's rights is a constitutional violation. In recent cases, the Supreme Court has stated:
As the Court stated in its 1989 DeShaney decision, the Due Process Clause:
"... is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State to deprive individuals of life, liberty or property without 'due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means."
As with the initial Complaint, the city demurred to the amended Complaint, once again supported by an amicus brief from the ACLU. Plaintiff opposed the demurrer, and then the City submitted a Reply. Reading all of the briefs together reminds one of the Kurosawa movie Rashomon: the parties are seeing the same thing (unrestricted internet access in the library), but how they see and interpret it is as if they were looking at almost entirely different matters.
Plaintiff's view is best illustrated by her Opposition to the demurrer. Plaintiff analogizes the internet to a pornography machine deliberately placed in the middle of the library, where a child need only push a large red button to have obscenity displayed. Indeed, continuing the analogy to the deliberately-placed porn machine, Plaintiff asserts that "[t]he library is integrally involved in providing pornography and should be considered the actual source of it," and that "the library is the key distributor [of obscenity], and its staff and technicians make it simple to access pornography."
From that view, Plaintiff asserts a novel claim of right: that children have a fundamental constitutional right to be free from pain (and that viewing obscenity causes pain); that fundamental rights can be abridged by the government only if it has a compelling interest in doing so; but that the government has no compelling interest in providing internet access. Therefore, in Plaintiff's view, the government's "porn machine" violates the fundamental constitutional rights of Plaintiff's son.
The City's view and that of the ACLU are, needless to say, rather different. There is no generalized constitutional right for a child to be free from harm. Here, the City argued, any alleged harm which may have been caused was caused by Brandon himself, not by the City, and the Constitution simply does not provide a remedy for harm caused by one's self or by another private actor. Further, in the small class of cases where a substantive due process obligation is imposed on government, the government must take some specific affirmative action which directly caused the alleged harm. Here, the City was passive, merely providing internet access. The affirmative act which (allegedly) harmed Brandon was performed by Brandon himself.
In its Reply to Plaintiff's opposition, the City barely even addressed Plaintiff's attempted porn machine analogy, apparently not wishing to give it any more consideration than it deserved. It would be interesting to know what was said at the argument of the demurrer, but we have not seen a transcript.
On January 13, the demurrer was argued to the Court. After taking the matter under submission for a day, the Court sustained the demurrer on January 14. The Court ruled, in effect, that even if all of the factual allegations made in the amended Complaint are true (for purposes of the demurrer only, the court must accept the truth of the allegations), Plaintiff has not stated a claim on which any relief can be granted. Further, unlike the demurrer to the initial complaint, the Court sustained the demurrer to the amended complaint without leave to amend, meaning that the Court believed that Plaintiff could not allege a set of facts which would entitle her to legal relief. Thus, Plaintiff's action is over, unless and until she successfully appeals.
March 6, 2001 update: Plaintiff did appeal, but her appeal was not successful. Our discussion of the Court of Appeal's decision is here.
Sources: ACLU, Tech Law Journal, Filtering Facts, Michael Millen. There are a few obvious typos in the documents; we do not have the originals for some documents to determine whether or not they existed in the original or have been added in the HTML conversion process. Some documents have been converted by automatic conversion processes which may or may not accurately preserve the original formatting.
Victory! Plaintiffs have the option of appealing the case to a higher court.The Demurrer to Plaintiff's First Amended Complaint for Injunctive Relief is sustained and the First Amended Complaint for Injunctive Relief is dismissed without leave to amend.
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