www.techlawjournal.com/courts/kathleenr/20010306op.asp
Editor's Notes: Tech Law Journal converted an MS Word version of this opinion into HTML. TLJ converted footnotes into endnotes, and added two way hyperlinking. TLJ eliminated pagination, paragraph indentations, and double spacing. Filed 3/6/01 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR KATHLEEN R. V-015266-4) 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. RECORD This case was filed against respondent 8 City of Livermore by appellant Kathleen R. Respondents demurrer was sustained without leave to amend on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the case was dismissed. Respondents library has computers linked to the Internet which patrons of any age are free to use. Twelve-year-old Brandon went to the computers without appellants knowledge and downloaded sexually explicit photos from the Internet onto a floppy disk that he brought to the library. Without any adults knowledge or permission Brandon printed the photos at a relatives computer. Appellant alleges that the photos Brandon obtained are harmful to minors and that some of them are obscene. One of the photos is reproduced in color on the first page of the complaint and others are attached as exhibits. In one of the exhibits a middle school schedule is superimposed over the image of a scantily clad woman. A copy of the Internet access policy adopted by respondents library board of trustees is attached to the complaint. This policy states in part: "The 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. The Internet and its available resources may contain materials of a controversial nature.
Livermore Public Library does not monitor and has no control over the information accessed through the Internet and cannot be held responsible for its content. Individuals must accept responsibility for determining what is appropriate. Parents and guardians are encouraged to work closely with their children. Parents are expected to monitor and supervise childrens use of the Internet in selecting material that is consistent with personal and family values. The section 1983 claim alleges that: Minors are expected to go to the library to complete public school assignments; All of appellants causes of action seek injunctive relief. The state claims seek to enjoin respondent: from acquiring or maintaining computers which allow people to access obscenity or minors to access harmful sexual matter;
The nuisance and premises liability claims also request declarations that respondent is liable for all future damages appellants children suffer from "sexual and other material harmful to minors" they access at library computers connected to the Internet. DISCUSSION A public library is in a "damned if you do, damned if you dont" situation in deciding whether to restrict access to the Internet from its computers to prevent harm to minors. A case in Virginia shows that the library can be sued if it limits Internet access ( 11 Mainstream Loudoun v. The state law claims in this case are preempted by federal law, and there is no entitlement to relief under section 1983. State Law Causes of Action The state causes of action are precluded by title 12 47 United States Code section 230 ( 230).
Respondent is not an "information content provider" in this case because it is not "responsible, in whole or in part, for the creation or development" of any of the harmful matter accessible through its computers. Nothing in the text or stated purposes of that provision supports this argument. In that case, a public librarys board of trustees was alleged to have violated the First Amendment rights of adult patrons by installing filtering software on library computers to block Internet sites which contained matter harmful to minors. The board claimed immunity under section 230, a different immunity than the one asserted here. Unlike the immunity here, the immunity claimed in Loudoun I conflicted with section 230s stated purposes. Also, appellants reading of Loudoun I is belied by the courts subsequent opinion in Loudoun II. For all of these reasons appellants reliance on Loudoun I is misplaced. Loudoun I held that this immunity did not extend to the plaintiffs First Amendment claim because " 230 was enacted to minimize state regulation of Internet speech . Section 230 immunity serves rather than undermines the purpose of minimizing state regulation of Internet speech insofar as it precludes claims based on public entities failure to undertake that regulation. Thus, the rationale for the denial of immunity in Loudoun I has no application in this case.
In any event, there can be no doubt that the Loudoun court thought that public libraries could claim immunity under section 230 because the court ventured in Loudoun II that this immunity should alleviate any concern the library might have had with potential criminal liability. Appellant contends that section 230 cannot be interpreted to confer immunity in this case because her claims are consistent with the aims of Congress in passing that law. Appellant notes that title 47 United States Code section 223 ( 223) was enacted along with section 230 as part of the Communications Decency Act of 1996, and submits that certain of section 223s provisions addressed the same concerns as her lawsuit. Appellant refers to section 223, which made it a crime to "use any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication," and section 223, which made it a crime to "knowingly permit any telecommunications facility under ones control to be used for such activity .
The problem with this line of argument is that this is not a criminal case. At most, the statutes appellant cites raise the issue of whether section 230 prevents enforcement of state laws pertaining to criminal conduct, an issue not presented by the allegations of the complaint in this civil case. Appellant attempts to raise this issue in her briefs with charges and hypotheticals involving intentional provision of obscene pornography to minors. Appellant asserts that "it is not the providing of unrestricted Internet access which is the problem; Appellant asks us to imagine an adult enticing minors to view obscene images he had called up on a library computer screen, and suggests that to grant the library immunity here would insulate this adult from criminal prosecution or liability for intentional infliction of emotional distress. Appellant describes this result as "patently absurd and hardly what Congress intended. The mans wrong exists not in creating or distributing the images but in choosing to publicly exhibit them to impressionable youngsters.
To combat that problem and "remove disincentives for the development and utilization of blocking and filtering technologies" ( 230), Congress conferred section 230 immunity for actions to restrict access to objectionable material. However, as the Fourth Circuit observed in the context of a tort claim against a commercial interactive computer service, "Congress made a policy choice . 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. Appellant contends that any immunity in this case would extend only to tort claim...
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