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Library can't be sued for lack of filtering software, argue city attorneys

By David Hudson
First Amendment Center

Federal law shields a public library from liability for failing to install blocking software on its computers, claimed Livermore, Calif., officials and the American Civil Liberties Union in court papers filed Friday.

The city filed a motion to dismiss the lawsuit brought by the mother of a 12-year-old boy who accessed scores of pornographic pictures from a local library in Livermore.

She alleges in Kathleen R. v. City of Livermore that "allowing minors to use the computers to access, acquire, display, and/or print sexual and other materials harmful to minors is a public nuisance."

However, attorneys for the city contend the library cannot be sued for providing full access to the Internet. In their court papers, the city says: "While the complaint and the sexually explicit pictures contained in it, may be sufficient to make a social statement, they are not sufficient to state a legal cause of action."

The city also argues that the lawsuit is precluded by a provision in the Communications Decency Act that prevents an Internet service provider from being held liable for material originating from a third party.

The ACLU, along with the People for the American Way, filed a friend-of-the-court brief . In their brief, the civil liberties groups also argue that "further prosecution of this lawsuit is barred by federal law, both under the immunity provisions of the Communications Decency Act, 47 U.S.C. § 230, and by First Amendment doctrine barring prior restraints."

Section 230(c)(1) provides that "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."

David Burt, president of Filtering Facts and a librarian who supports the use of filtering software, agrees with Kathleen R.'s use of public nuisance theory to cover libraries that will not provide any blocking software on their computers. "I agree with the concept as with regards to children," he said. "If a library fails to provide any sort of protection for children from hazardous material, then the library is abridging parental rights."

However, Dan Sodergren, Livermore's assistant city attorney, disagrees. He said: "The use of the public nuisance concept in this case is novel, and it is novel for a reason. It is questionable whether the individual who brought suit in this case has standing to file suit.

"Under California law a private individual can only bring a public nuisance action in two situations: when their own property is affected and when they are affected differently than the rest of the public," he said. "Furthermore, you cannot bring a public nuisance action in California to address an issue that is allowed by city law or policy. And in this case, the city has a policy of allowing unfettered access to the Internet."

However, Michael Millen, the attorney representing Kathleen R., said that "the city's arguments with respect to standing are minor. We will take care of the standing issues."

"It is important to realize that at no point in the papers filed by the city or the ACLU do they justify their behavior," he said. "The actions in not installing some sort of filtering software constitute a public nuisance because we are talking about obscenity and the violation of a federal obscenity law."

A question interesting to outside legal observers is whether the city can use a section of the Communications Decency Act to dismiss the lawsuit based on state law.

Carol Clancy, senior counsel with the National Law Center for Children and Families, contends that section 230 of the Communications Decency Act does not shield the library from liability. "The basic provision of section 230 that provides 'no provider or user … shall be treated as the publisher or speaker of any information' provided by someone else was only intended to provide protection from liability in the defamation context," she said.

Clancy says that another provision of section 230 specifically provides protection for a service provider that uses blocking software. Section 230(c)(2) states that "No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

Clancy argues that one of the purposes behind section 230 is to encourage public libraries to install blocking software. "In the Livermore case, the library did not use any blocking software at all; therefore, the facts simply do not warrant the use of section 230," she says.

Millen offers another argument as to why section 230 should not shield the library from liability: "Section 230 does not apply to the transmission of obscenity. A provision in the Communications Decency Act specifically says that nothing in section 230 shall be deemed to apply to the enforcement of section 223 which deals with preventing the online transmission of obscene material."

However, free-speech expert Eugene Volokh, a University of California at Los Angeles law professor, says it will be very hard for Kathleen R. to prevail under the nuisance theory even if the court finds the section 230 defense inapplicable.

"The section 230 argument is plausible but it is not the strongest argument to defeat this colorful claim," Volokh said. "The strongest argument is simply that existing tort law does not stretch this far. The nuisance doctrine, to my knowledge, has never been applied to someone who made available supposedly unprotected speech."

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