Kathleen R. v. City of Livermore

Opinion

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.

This case was filed against respondent City of Livermore by appellant Kathleen R. individually, and in her capacities as a taxpayer and as guardian ad litem for Brandon P., her minor son. The amended complaint includes causes of action for waste of public funds, nuisance, premises liability, and denial of substantive due process ( 42 U.S.C. § 1983 (hereafter section 1983)). Respondent’s 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.

Respondent’s 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 appellant’s knowledge and downloaded sexually explicit photos from the Internet onto a floppy disk that he brought to the library. Without any adult’s knowledge or permission Brandon printed the photos at a relative’s computer. He engaged in this activity on about 10 occasions. 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. Brandon showed the photos to other minors.

A copy of the Internet access policy adopted by respondent’s 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. . . . [H] . . . ffl] . . . The Internet and its available resources may contain materials of a controversial nature. The 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. . . . Library patrons use the Internet at their own risk. ... M] ... [H] Individuals must accept responsibility for determining what is appropriate. The Library . . . upholds and affirms the right of each

prevent harm to minors. A case in Virginia shows that the library can be sued if it limits Internet access {Mainstream Loudoun v. Bd. of Trustees of Loudoun (E.D.Va. 1998) 24 F.Supp.2d 552 {Loudoun II) [use of filtering software violated First Amendment]); this case shows that the library can be sued if it does not. This case, unlike the Virginia one, is untenable. The state law claims in this case are preempted by federal law, and there is no entitlement to relief under section 1983.

A. State Law Causes of Action

The state causes of action are precluded by title 47 United States Code section 230 (section 230). Section 230(c)(1) states 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.” This provision prohibits “hold[ing] interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium.” {Blumenthal v. Drudge (D.D.C, 1998) 992 F.Supp. 44 , 49.) This prohibition was enacted “to promote the continued development of the Internet and other interactive computer services and other interactive media,” and “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” (§ 230(b)(1), (2); see Blumenthal v. Drudge, supra, 992 F.Supp. at p. 49.) Thus, “[b]y its plain language, § 230[(c)(l)] 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.” (Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327 , 330; see also Ben Ezra, Weinstein, & Co. v. America Online Inc. (10th Cir. 2000) 206 F.3d 980 , 984-985.)

Respondent is entitled to that immunity here. An “interactive computer service” is “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.” (§ 230(f)(2), italics added.) Respondent provides an “interactive computer service” in this case because its library computers enable multiple users to access the Internet. 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. (§ 230(f)(3).)

Appellant contends that section 230(c)(1) immunity does not extend to governmental entities. Nothing in the text or stated purposes of that provision supports this argument. The argument rests on Mainstream Loudoun v.

immunity should alleviate any concern the library might have had with potential criminal liability. (Loudoun II, supra, 24 F.Supp.2d at p. 565, fn. 15.) We therefore reject appellant’s argument based entirely on Loudoun I that defendant has no immunity because it is a governmental entity.

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 (section 223) was enacted along with section 230 as part of the Communications Decency Act of 1996, and submits that certain of section 223’s provisions addressed the same concerns as her lawsuit. Appellant refers to section 223(d)(1)(B), 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, [H] 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(d)(2), which made it a crime to “knowingly permit[] any telecommunications facility under [one’s] control to be used for [such] activity . . . with the intent that it be used for such activity.”

Appellant acknowledges that these criminal laws were struck down on First Amendment grounds in Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [ 117 S.Ct. 2329 , 138 L.Ed.2d 874 ], However, she argues that these laws show what Congress meant when it stipulated that “[n]othing in [section 230] shall be construed to prevent any State from enforcing any State law that is consistent with this section.” (§ 230(e)(3).) Appellant reasons that because section 230(e)(1) likewise directs that “[n]othing in this section shall be construed to impair the enforcement of section 223 ... or any other Federal criminal statute,” and because her lawsuit like section 223 seeks “to prevent the distribution and display of obscene pornography to minors,” section 230 cannot properly be interpreted to preclude her state law claims.

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; it is the provision of obscene pornography to children.” Appellant likens the library’s conduct to “set[ting] up a display” of obscene images

others. Librarians cannot be prosecuted for providing such instruction (Pen. Code, § 313.3; Moore v. Younger (1976) 54 Cal.App.3d 1122 [ 127 Cal.Rptr. 171 ]), and we cannot presume that such instruction would include lessons on finding obscenity or other harmful matter on the Internet. Such lessons would not further the library’s stated mission, and would not be consistent with its policy that computers are to be used only for “educational, informational and recreational purposes.”

At various points in her arguments appellant suggests that respondent can be held liable for providing obscene pornography to minors, even if librarians themselves do not actually exhibit such matter to minors or teach them how to access it, merely because of the ease with which such images can be obtained from the Internet. In Reno v. American Civil Liberties Union, supra, 521 U.S. at page 853 [117 S.Ct. at page 2336], the court recognized that “[s]exually explicit material on the Internet includes text, pictures, and chat and ‘extends from the modestly titillating to the hardest-core.’ . . . [It] may be accessed either deliberately or unintentionally during the course of an imprecise search.” However, the court found that “users seldom encounter such content accidentally. ‘. . . Almost all sexually explicit images are preceded by warnings as to content.’ For that reason, the ‘odds are slim’ that a user would enter a sexually explicit site by accident.” (Id. at p. -854 [117 S.Ct. at p. 2336], fn. omitted.) Here, it is not alleged that Brandon stumbled across anything harmful by accident. Nevertheless, appellant has likened library computers to “a machine where you push a red button, [and] obscene pornography appears on the screen.” Appellant’s briefs represent that “an impressionable child need only type the word ‘girl’ [into a library computer] and click thrice to view obscene perversions of the darkest order.” Appellant has advised that she has experts who can demonstrate “it’s so easy to obtain obscene pornography from library terminals in the City of Livermore that’s basically the same thing as City librarians simply providing pornography.” Thus, appellant argues that respondent has a “policy of essentially giving obscene pornography to any willing child who asks.” (Italics added.)

Contrary to this line of argument, there is a crucial distinction between providing minors with harmful matter on the one hand, and maintaining computers where minors may obtain such matter, however easily, on the other. Section 230 draws this distinction by immunizing interactive computer service providers from liability for mere failure to “restrict access to offensive material disseminated through their medium.” (Blumenthal v. Drudge, supra, 992 F.Supp. at p. 49.) Congress was indeed concerned with “children’s access to objectionable or inappropriate online material” when it

involved immunity under section 230(c)(2), not section 230(c)(1). Whereas section 230(c)(2) prohibits interactive computer service providers from being “held liable” for specified conduct, and that language may arguably refer only to damage claims, no such limiting language appears in section 230(c)(1). Zeran and Blumenthal are also distinguishable on this point because, unlike appellant’s case, they involved only tort claims. Since there was no occasion to address nontort claims in those cases, their reasoning does not preclude section 230(c)(1) immunity from extending to such claims. (Ginns v. Savage (1964) 61 Cal.2d 520 , 524, fn. 2 [ 39 Cal.Rptr. 377 , 393 P.2d 689 ] [opinions are not authority for propositions they do not consider].)

Section 230 provides broadly that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” (§ 230(e)(3), italics added.) Thus, even if for purposes of section 230 “liability” means only an award of damages (Loudoun I, supra, 2 F.Supp.2d at p. 790), the statute' by its terms also precludes other causes of action for other forms of relief. This interpretation is confirmed by the Tenth Circuit’s decision in Ben Ezra, Weinstein, & Co. v. America Online Inc., supra, 206 F.3d at pages 983-984, which upheld the dismissal under section 230 of state law claims for injunctive relief as well as damages. Taxpayer actions and claims for declaratory and injunctive relief are no less causes of action than tort claims for damages, and thus fall squarely within the section 230(e)(3) prohibition. (E.g., Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94 , 113 [ 101 Cal.Rptr. 745 , 496 P.2d 817 ] [referring to cause of action for injunctive relief]; Lawrence Barker, Inc. v. Briggs (1952) 39 Cal.2d 654 , 663 [ 248 P.2d 897 ] [referring to cause of action for declaratory relief]; Fiske v. Gillespie (1988) 200 Cal.App.3d 1243 , 1246 [ 246 Cal.Rptr. 552 ] [referring to taxpayer cause of action].) Appellant’s taxpayer and equitable theories to prevent respondent from providing open access to the Internet on its library computers contravene section 230’s stated purpose of promoting unfettered development of the Internet no less than her damage claims. Therefore, all of appellant’s state law claims are preempted under section 230.

B. Section 1983 Cause of Action

Appellant’s attempt to state a case for violation of her son’s right to substantive due process also fails. The government has an interest in protecting minors from harmful materials on the Internet (Reno v. American Civil Liberties Union, supra, 521 U.S. at p. 875 [117 S.Ct. at p. 2346]), but it does not have a constitutional duty to do so. Due process is afforded “to protect the people from the State, not to ensure that the State protects] them from each other.” (DeShaney v. Winnebago Cty. Soc. Servs. Dept. (1989) 489

U.S. 189 , 196 [ 109 S.Ct. 998 , 1003, 103 L.Ed.2d 249 ].) Thus, as a general rule “[t]he State’s failure to prevent harm inflicted by a private actor does not give rise to a cause of action under section 1983.” (Garcia v. Superior Court (1990) 50 Cal.3d 728 , 739 [ 268 Cal.Rptr. 779 , 789 P.2d 960 ].) Two exceptions to this general rule have been recognized: the “special relationship” or “ ‘functional custody’ ” exception; and the “ ‘danger creation’ ” or “ ‘snake-pit’ ” exception. (Liebson v. New Mexico Corrections Dept. (10th Cir. 1996) 73 F.3d 274 , 276; L.W. v. Grubbs (9th Cir. 1992) 974 F.2d 119 , 121; Blum, DeShaney: Custody, Creation of Danger, and Culpability (1994) 27 Loyola L.A. L.Rev. 435, 436-437 (hereafter Blum).) Neither of those exceptions applies here.

The special relationship or functional custody exception applies “when the State takes a person into its custody and holds him there against his will”; in that situation, the state has “a corresponding duty to assume some responsibility for [the person’s] safety.” (DeShaney v. Winnebago Cty. Soc. Servs. Dept, supra, 489 U.S. at pp. 199-200 [109 S.Ct. at p. 1005].) “DeShaney left undefined the precise measure of state restraint that engenders an individual’s right to claim a corresponding affirmative duty.” (Graham v. Independent School Dist. No. 1-89 (10th Cir. 1994) 22 F.3d 991 , 994.) However, DeShaney set a “high standard” for liability when it indicated that the “ ‘ “deprivation of liberty” ’ ” which triggers the protections of due process “ ‘is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf.’ ” (Garcia v. Superior Court, supra, 50 Cal.3d at p. 762 (dis. opn. of Mosk, J.); see also id. at p. 740 (maj. opn.).) Given this stringent standard, most courts have declined to find that students are in the functional custody of schools despite the compulsory attendance laws. (Blum, supra, 27 Loyola L.A. L.Rev. at p. 445; e.g., Graham v. Independent School Dist. No. 1-89, supra, 22 F.3d at p. 994.) Similarly here, even if as appellant alleges minors are expected to go to respondent’s library to complete public school assignments, the library dos not exercise “ ‘pervasive control’ ” over minors (see Blum, supra, 27 Loyola L.A. L.Rev. at pp. 449-450 [arguing for an expansive interpretation of DeShaney]), much less restrain their freedom to act on their own behalf, by allowing them to freely use the library computers.

Nor could the library’s open Internet access policy be considered a state-created danger for purposes of the “snake pit” exception to the rule of nonliability for failure to provide protective services. {Bowers v. DeVito (7th Cir. 1982) 686 F.2d 616 , 618 [when “the state puts a man in a position of danger from private persons and then fails to protect him, . . . it is as much an active tortfeasor as if it had thrown him into a snake pit”].) For the danger creation exception to apply, it is not enough that the plaintiff’s harm might have been foreseeable. (DeShaney v. Winnebago Cty. Soc. Servs. Dept,

Appellant attempts to avoid the rule that due process does not guarantee protective services by distorting the library’s policy and practices. As previously noted, appellant’s briefs assert that the library has a policy of providing obscene pornography to minors. Appellant contends that the policy, as so conceived, violates minors’ “liberty interest in personal security and freedom from restraint and infliction of pain.” (Wood v. Ostrander, supra, 879 F.2d at p. 589, citing Ingraham v. Wright (1977) 430 U.S. 651 , 674-675 [ 97 S.Ct. 1401 , 1414-1415, 51 L.Ed.2d 711 ] [liberty interests are implicated when a school restrains a child and administers corporal punishment].) Appellant submits that minors are seriously injured by viewing obscene pornography, that freedom from infliction of such pain is a fundamental constitutional right which cannot be infringed without a compelling state interest, and that there is no such interest here because “there is no ‘compelling’ reason to give children any access to the Internet at all.” (See generally County of Sacramento v. Lewis (1998) 523 U.S. 833 , 846 [ 118 S.Ct. 1708 , 1716-1717, 140 L.Ed.2d 1043 ] [substantive due process limits what government may do in its legislative as well as executive capacity]; Washington v. Glucksberg (1997) 521 U.S. 702 , 721 [ 117 S.Ct. 2258 , 2268, 138 L.Ed.2d 772 ] [laws infringing fundamental rights must be narrowly tailored to serve a compelling state interest].) In the same vein, appellant’s briefs assert that respondent’s librarians are giving minors obscene pornography, and thus that this case concerns harm inflicted by government employees, rather than their mere failure to provide protection. (See, e.g., Stoneking v. Bradford Area School Dist. (3d Cir. 1989) 882 F.2d 720 , 724-725 [distinguishing DeShaney where injury resulted at the hands of a state employee].)

These arguments are insupportable because it is not the policy of respondent’s library to provide minors with obscene pornography. Provision of computer-transmitted obscenity to minors would contravene the library policy’s directives that computers be used for educational, informational, recreational, but not illegal, purposes. The policy warns that “controversial” material is available on the Internet, that patrons who use the Internet do so “at their own risk,” and that the library does not supervise minors’ use of the Internet. This acknowledgement that the library does not undertake to protect minors from harmful matter on the Internet does not imply that the library intends for minors to be exposed to obscenity. The library’s affirmation of “the right of each individual to have access to constitutionally protected materials” is not an endorsement of minors’ access to obscenity. (See Ginsberg v. New York (1968) 390 U.S. 629 , 636-637 [ 88 S.Ct. 1274 , 1278-1279, 20 L.Ed.2d 195 ] [minors have no such constitutional right].)

Since it is not the policy of respondent’s library to provide obscene pornography to minors, we are not called upon to decide whether minors

have a fundamental right to freedom from exposure to such material. There is no state policy infringing on any such interest in this instance; there is only a failure to render protection from private sector harm which, under well-settled principles, is not actionable under section 1983. Finally, if as appellant’s briefs maintain there are librarians in respondent’s employment who are providing obscene pornography to minors, respondent is not liable under section 1983 for their unauthorized actions. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658 , 690-691, 694 [ 98 S.Ct. 2018 , 2035-2036, 2037-2038, 56 L.Ed.2d 611 ] [no respondeat superior liability under section 1983; unlawful action must execute municipal policy]; see, e.g., J.O. v. Alton Community Unit School Dist. (7th Cir. 1990) 909 F.2d 267 , 272.)

The judgment of dismissal is affirmed with costs to respondent.

Reardon, Acting P. 1, and Sepulveda, J., concurred.