April 2001 Vol. 7 No. 4 ISSN 1087-6219
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In This Issue

• Anti-abortion activists have First Amendment right to publicize names of abortion providers
• Library not liable for minor's exposure to sexually explicit material on the Internet
• Assumption of the risk doctrine bars claim for skiing accident
• New arbitration decisions provide guidance on drafting enforceable arbitration clauses
• UPDATES

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Anti-abortion activists have First Amendment right to publicize names of abortion providers

The Ninth Circuit has ruled that the First Amendment prohibits imposing liability on a group of anti-abortion activists who publicized the names of doctors who perform abortions. Although the doctors may have been in fear of physical harm from the publication of their names, the communications associated with the names did not contain an explicit threat that the group's members themselves would harm the doctors.

The American Coalition of Life Activists (ACLA) began publicizing the names of doctors who performed abortions. ACLA called some of the doctors the “Deadly Dozen.” It offered rewards for information leading to their “arrest, conviction and revocation of license to practice medicine.” It compiled a series of dossiers that it called the “Nuremberg Files.” At ACLA's instigation those files made their way on to an anti-abortion web site. The web site marked the names of those already victimized by anti-abortion terrorists, striking through the names of those who had been murdered, and graying out the names of the wounded.. A jury awarded the targeted abortion providers $100 million in actual and punitive damages.

The Ninth Circuit reversed on First Amendment grounds. Defendants may only be held liable in such circumstances if they “authorized, ratified, or directly threatened acts of violence.” NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (overturning a judgment against the NAACP based on conduct of a civil rights boycott in Mississippi).

Although the targeted abortion providers may well have feared for their physical safety, the evidence presented to the jury did not establish that ACLA and its members had directly threatened acts of violence. The providers' fear stemmed from the knowledge that other abortion providers had suffered physical harm after their names were publicized.

Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 2001 WL 293268 (9th Cir. Mar. 28, 2001).

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Library not liable for minor's exposure to sexually explicit material on the Internet

The First District Court of Appeal in San Francisco has ruled that a public library is not subject to suit for offering unrestricted access to the Internet. It affirmed the dismissal of a lawsuit brought by the mother of a 12-year old boy who downloaded sexually explicit photographs and shared them with his friends.

The board of trustees for the Livermore Public Library adopted a wide open Internet policy. The policy stated that all users, including minors, would have free and equal access to the entire range of library resources, regardless of content. The library noted that it did not monitor or control information accessed over the Internet, and disclaimed any responsibility for the content of such information.

Twelve-year old Brandon P. went to the library's computers without his mother's knowledge 10 times to download sexually explicit photos onto a floppy disk. He printed the photos on a relative's computer. Brandon P.'s mother, Kathleen R., brought a lawsuit on behalf of herself and her son. She alleged state law claims for wasting public funds, and maintaining a public nuisance, and a federal claim under 42 U.S.C. section 1983 based on a substantive due process theory.

The court noted that public libraries are in a “damned if you do, damned if you don't” situation with regard to Internet access. On the one hand, imposing restrictions may trigger liability under the First Amendment. See Mainstream Loudoun v. Board Of Trustees of Loudoun, 24 F. Supp. 2d 552 (E.D. Va. 1998). On the other, allowing open access invites lawsuits by parents like Kathleen R.

Federal law preempted all Kathleen R.'s state law causes of action. Under 47 U.S.C. section 230, providers of interactive computer services are immune from liability for information provided by another information content provider. The Livermore Public Library qualified for this protection.

The section 1983 claim did not state a cause of action for deprivation of due process. Although the government has an interest in protecting minors from harmful materials on the Internet, it does not have a duty to provide protection. As a general rule, the government cannot be liable for its failure to prevent harm inflicted by a private actor. There are two exceptions-”functional custody” and “snake pit.”

The functional custody exception applies when the government takes individuals into custody against their wills. However, a public library does not exercise the kind of “pervasive control” over minors sent there to do their school assignments that would be necessary to invoke the functional custody exception.

The snake pit exception applies where the government has affirmatively placed an individual in a position of danger, effectively stripping him of the ability to defend himself. In one well-known case, a state trooper impounded the plaintiff's car and then abandoned her in a high crime area in the middle of the night. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989). By providing Internet access, the library did not affirmatively place minors in danger, because they were not compelled to use the computers.

Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001).

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Assumption of the risk doctrine bars claim for skiing accident

The San Diego division of the Fourth District Court of Appeal has ruled that two volunteer members of a ski patrol assumed the risk of death and physical injury suffered during a skiing skills clinic.

John and Colleen Kane had 30 years of experience skiing between them when they decided to become volunteer members of the Bear Mountain ski patrol. The ski patrol requires its volunteers to pass a series of tests conducted by the National Ski Patrol System (NSPS).

NSPS also offered skiing skills clinics to assist volunteers in getting ready for the tests. One morning an NSPS instructor took the Kanes and two other volunteers to the Geronimo Trail, the most difficult trail on the highest mountain at Big Bear. It had a rating of two black diamonds, which meant that skiers should use extra caution on that trail.

While skiing down Geronimo Trail, John lost control, and slid off the trail into an adjacent canyon. Colleen followed him, fell and also slid into the canyon. John died. Colleen suffered a severely broken right leg. The trial court awarded $1 million in wrongful death damages, and $400,000 compensatory damages for Colleen's injury.

The Court of Appeal reversed because the Kanes assumed the risks inherent in skiing. NSPS could only have been liable if its instructor increased the risk over and above those inherent in the sport of skiing. The evidence could not support such a finding.

The evidence on which the finding of liability rested was the testimony of an expert who said that the NSPS instructor had acted improperly in 12 respects. Those errors consisted of incorrectly judging the Kanes' skill levels and the difficulty of the conditions. Such assessment errors are not outside the range of ordinary activity involved in the sport.

“Moreover, the consequence of holding a ski patrol instructor liable for such errors would be calamitous. If a ski patrol instructor's assessment of skill and conditions will support liability, we are at a loss as to what organization or person would or could take on the responsibility of training skiers to rescue other skiers. Because the ability to second-guess an instructor's assessment is essentially limitless, so too would an instructor's liability be limitless. The likely absence of a competent ski patrol would in turn endanger every skier.”

Kane v. National Ski Patrol Sys., Inc., No. D036826 (Cal. Ct. App. Apr. 2, 2001).

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New arbitration decisions provide guidance on drafting enforceable arbitration clauses

Over the past month, the California Courts of Appeal have handed down several decisions involving enforceability of arbitration clauses in a variety of contexts:

Pichly v. Nortech Waste LLC, 87 Cal. App. 4th 599 (2001). This case was before the Third District Court of Appeal in Sacramento on instructions from the Supreme Court to reconsider its earlier decision in light of the Supreme Court's intervening decision in Armendariz v. Foundation Health Psychcare Services., Inc., 24 Cal. 4th 83 (2000). It found that an arbitration clause requiring arbitration of employment disputes met the Armendariz standards, and then rejected plaintiff's argument that the clause was unconscionable because it was too one-sided.

Romo v. Y-3 Holdings, Inc., 105 Cal. Rptr. 2d 208 (Ct. App. 2001). The Second District Court of Appeal in Los Angeles ruled that an employer could not enforce an arbitration agreement that comprised a section of an employee handbook. Although the employee signed an acknowledgment of receipt of the handbook, she did not sign on the separate signature line provided after the arbitration agreement section of the handbook.

Bolter v. Superior Court, 87 Cal. App. 4th 900 (2001). The Santa Ana division of the Fourth District Court of Appeal struck three unconscionable provisions from an arbitration clause in a franchise agreement, but ruled that the franchisor could still insist on arbitration. The offensive clauses (1) required mom-and-pop franchisees of a large international franchise operation to travel to Utah for arbitration, (2) prohibited consolidated proceedings, and (3) barred punitive damages.

Condee v. Longwood Management Corp., No. G027263 (Cal. Ct. App. Apr. 2, 2001). The Santa Ana division of the Fourth District Court of Appeal ruled that a petition to compel arbitration cannot be denied for failure to authenticate the arbitration agreement. It is enough for the petition to allege the operative provisions. That places the burden on the opponent of arbitration to prove that there was no enforceable agreement.

McCoy v. Superior Court, 87 Cal. App. 4th 354 (2001). The Santa Ana division of the Fourth District Court of Appeal refused to require arbitration of an employment dispute because the arbitration clause was unconscionable. It required the employee, but not the employer to submit to arbitration. It unfairly required the employer and the employee to share the costs or a retired judge, who would charge a minimum of $400 per hour.

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

A&M Records, Inc. v. Napster, Inc. (March 2001 issue), now reported at 239 F.3d 1004 (9th Cir. 2001).

Circuit City Stores, Inc. v. Ahmed (December 1999 issue), vacated and remanded, 2001 WL 285795 (U.S. Mar. 26, 2001).

D'Sa v. Playhut, Inc. (February 2001 issue), petition for review filed (Jan. 31, 2001).

Echazabal v. Chevron USA, Inc. (June 2000 issue), petition for certiorari filed (Mar. 9, 2001).

Esberg v. Union Oil Co. of California (March 2001 issue), now reported at 87 Cal. App. 4th 378 (2001).

Humphrey v. Memorial Hospitals Ass'n (March 2001 issue), now reported at 239 F.3d 1128 (9th Cir. 2001).

In re Aaron Collins (March 2001 issue), now reported at 86 Cal. App. 4th 1176 (2001), petition for review filed (Mar. 19, 2001).

Jensen v. Wells Fargo Bank (January 2001 issue), review denied (Mar. 14, 2001).

Thompson v. Tracor Flight Sys., Inc. (March 2001 issue), now reported at 86 Cal. App. 4th 1156 (2001).

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