THE PUBLIC FORUM DOCTRINE AND ITS POSSIBLE APPLICATION TO THE INTERNET

Angioletta Sperti, LL.M.*

UCLA School of Law

1: Introduction.

We live today in a world in which people can connect their own computer to data systems and networks having the sense to access a world that is almost material[1]. At the core of the sprawling Internet, that is the most consistent part of cyberspace [2], there is the so-called Internet backbone, a system of high-speed data-transmission lines and specialized computers created in the United States by a dozen of big firms [3]. The backbone, together with the smaller Internet providers and companies who allow people to plug into the Net, creates a web that joins millions of computers every day [4].

Nevertheless, the Internet is creating numerous legal issues in a lot of different fields [5]. It is certain that one of the most interesting aspects of the Internet is that it is an unique means of communication. Virtually all online activity involves conduct that can be characterized as speech or publishing. From e-mail communications to more sophisticated forms of online publishing, the so-called global information infrastructure has facilited an unprecedented worldwide exchange of ideas, information, and content. [6]

This work aims at considering if the Internet may be qualified as a public entity and as public forum. In particular, we will take into consideration the so-called public forum doctrine in order to consider if the First Amendments protection for the fredom or speech in public forums may be extended also to the Internet.

This issue has been frequently discussed in many law review articles and newspapers columns [7] and it has also been recently considered by the Supreme Court of the United States during the hearings of the ACLU v. Reno case [8]. The case, that is discussing the constitutionality of the Communications Decency Act (CDA) [9], is expected to be one of the most interesting cases in the last years.

This work will briefly examine the contents of the public forum doctrine and of the other kinds of forums that the Supreme Court has distinguished.

The First Amendment prohibits only the Government from interfering with ones freedom of speech. If the Government should attempt to regulate the Internet (as it happened with the Communications Decency Act) the regulation will be subjected to the First Amendment and its protection for the freedom of speech. Conversely, the First Amendment does not extend its protection in the case of a regulation estabilished by private entities [10]. It is therefore necessary to clarify to what extent the Internet may be considered public and if private entities must be included in the Internet as a public forum and assimilated to the State for constitutional purposes or if a distinction is more appropriate.

This work will demonstrate that the distinction is probably the best solution, as the Internet is not homogenous and instead includes many different situations. Furthermore, this solution will give more protection to other individual rights. We are referring to the right of privacy, especially in the electronic mail, that will receive less protection if the Internet, including private facilities, would be considered a public forum as a whole.[11]

2: The public forum doctrine and the other kinds of forums distinguished by the Supreme Court.

The Supreme Court developed a three-tired classification scheme for judicial review of state regulation of speech on public property.[12] Perry Education Ass'n v. Perry Local Educators' Ass'n [13] is probably one of the most cited cases for its clear articulation of the doctrine. This decision distinguished among traditional public forums, limited public forums and non public forums. The first category includes places that are traditionally open to the public for expressive purposes such as streets,[14] sidewalks [15] and parks [16]. Other places may at the same time be considered public forums when the Government decides to open them to the public and to devote them to assembly and debate.

In these places the Government may not ban all communicative activity. In order to enforce a content-based regulation, the State must show that it is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Constitutional regulations of time, place, and manner of expression must be content-neutral [17], narrowly tailored to serve a significant government interest [18], and must leave open ample alternative channels of communication.

The second category consists of public property that the State has decided to use for expressive activities. In these places the State is bound by the same principles applied to public forum as long as it decides to retain the public function of these places.

The last group, non public forums, includes certain types of public properties that are not open to the public and whose functions are not related to the expression of ideas.[19] In addition to time, place, and manner regulations, the State may reserve these places for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and content neutral.

It is necessary to the purposes of this work to clarify that the Supreme Court required two inquires in order to recognize the existence of a public forum: (i) the existence of a long tradition of public debate for that particular place and (ii) whether the State has opened the place to the public for expressive activities. [20] The next step of this work would be to clarify if the Internet can be considered as a public forum and whether these two inquires are satisfied.

3: May the Internet be considered as public forum?

On March 19, 1997 the attorneys of the two parts presented the oral arguments of the ACLU v. Reno case [21] before the Supreme Court. The attorneys [22] and the Justices focused on the essential qualities and characteristics of the Internet and tried to find possible analogies in order to clarify its nature.[23] The Internet was therefore compared to a city [24], to a street corner or a park [25], to a broadcast media [26], to a newspaper or a magazine [27], to a telephone [28], and to a private living room and a public educational institution. Other analogies suggested for the Internet are those with a private shopping mall and a public parade[29].

All these analogies emphasize the fact that the Internet is first of all the most powerful means of communication. It is a place, in a virtual sense of course, in which anyone can express his own ideas and reach the farthest people.

Nevertheless, not all the analogies consider the Internet as a public forum. Only if we compare it to a city, or to a street corner or to a park, it could be inferred that the Internet is a public forum and that the same rules apply. Other analogies have instead considered the Internet more similar to a limited public forum (and precisely, like a library, a broadcasting media or a public educational institution). These different ways to interpret the nature of the Internet (as a public forum or as a place in which regulations are more easily justifiable) arise from two considerations.

In the ACLU v. Reno context, the Court and the Government attorney are taking into consideration two different audiences, children and adults. Therefore, some of these analogies arise from the attempt to justify a distinction between places that can be accessed only by adults and sites that, for their content, are accessible even by children.

In the second place, and as general consideration , the analogies with limited public forums clarify that the Internet is not only public. Even if it can be admitted the existence of a long tradition of public debate for that particular place, the other inquiry (required by Perry) [30] is not so easily acceptable. As we have written supra in this work, in this case the Court asked also to consider whether the State has opened the place to the public for expressive activities. This is not completely true for the Internet. Even if the Internet was created for military purposes and in the beginning it was, in some sense, public [31], this is not still true today. The electronic forum in a broad sense, includes Government systems, academic systems, corporate systems and individual systems.[32] The first group includes Arpanet,[33] other systems operated by the Government that sometimes do not admit a general access and abide by appropriate access restrictions. Nevertheless, there are systems that can be considered public. For instance, the municipal government of Santa Monica, California, operates a computer system providing an electronic forum that promotes electronic democracy by permitting any person with a modem to express themselves on any subject.[34]

The second category represents probably the most consistent source of electronic forums existing today. These systems that allow access to students, professors and researchers are not always public. Sometimes they are operated by private educational institutions; regulations in this forums can be justified by the special characteristics of the school environment[35].

The last two groups consist of systems that is difficult to consider as public forums. Many corporations operate computer system that offer electronic mail and conferencing capabilities but they usually are not accessible by the general public. The last group includes personal computers owned by individuals who use them for instance, for electronic mail, to have access to the Internet or to create, with other computers, a BBS.

We can conclude that the Internet is in some respects public and for other features private. The First Amendment does not extend its guarantees to the private property. Only a public electronic forum -owned, operated or sponsored by the state- would obtain protection by the First Amendment. Therefore, only a regulation in this sector could be scrutinized accordingly to the rules applied to traditional public forums.

Conversely, operators could impose restrictions on private-owned electronic forums. Similar conclusions can be reached for BBS and academic systems at private universities that constitute a large part of the Internet.

4: Possible ways to apply the public forum doctrine to the Internet.

On the basis of the previous considerations we should conclude that the public forum doctrine and the First Amendment do not offer protection to all the situations that may occur in the Internet. It cannot be seen as an homogenous entity and as public forum. It embraces, as we said, situations that are more similar to private places than to public forums and that are privately owned. This will not change in the future. The Clinton administration has clarified that the creation of the NII will be left to private parties.[36] This reduces the possibilities to answer affirmatively to the second inquiry suggested by the Court in Perry [37] (whether the State has opened the property for use by the public as a place for expressive activity). Private carriers will [in fact] primarily own and operate the Information Superhighway according to Government plans.[38]

Nevertheless, it would be possible to apply the First Amendment also to private entities in the Internet, if we could conclude that they perform a public function or if the Government is so entangled with the private entity as to make the two inseparable for constitutional analysis.[39] Giving a positive answer to this question would allow to assimilate these private entities to the State and therefore the public forum doctine could be extended to these forums. We will conclude, at the end of this part that it is not possible to reach this conclusion.

A group of cases has applied the First Amendment to a private actor who had taken on a public function. In Marsh v. Alabama [40] a Jehovahs Witness was prosecuted for distributing literature in a private owned company town. The Court concluded that the property owner was in the same position of the State because he actually controlled the town. For this reason he could not prohibit the expression of a particular point of view. His regulation, as a State regulation, could not be content based.

This argument does not seem to be very strong when extended to the Internet. The Supreme Court has in fact, limited its application to cases similar to Marsh, where companies perform functions that are traditionally performed by the State.[41] For this reason, a court applying public function analysis, probably would hold that an electronic forum is public property only if the State traditionally and exclusively owns and operates electronic forums of that type and supplies those services.[42]

The second argument is based on a finding that the Government is so entangled with the private entities to create a possibility of identification with them. In a frequently recalled case, Burton v. Wilminton Parking Authority[43], the Court considered the case of a private restaurant that leased space in government owned parking garage. The restaurant used discriminatory criteria to lease this space, and refused the plaintiff who was black. The Court held that although the discrimination was made by the restaurant, there was a connection with the Government that shared profits with the restaurant. Therefore the State appeared to encourage this discriminatory practice.

In other cases involving the state licensing of private activities [44] the Court held that the entanglement between the state and the activity must be direct and pervasive. In our field we have to conclude that unless the Government becomes intimately identified with private entities in the Internet, it would be unlikely to admit the existence of an entanglement between the state and a speech-limiting regulation by this private network.

We must therefore conclude that it is quite unlikely to consider the Internet as a big public forum. Even if, as we have argued supra in this work, the Internet is usually conceived by the people as a virtual place where everyone can express her own ideas and communicate them to the others, the network of networks is not a public forum in the traditional meaning.

A policy argument can also be used to upheld this conclusion. If the Internet were considered public, at the same time every message or file traveling through it would be regarded as public. But in the Internet there are a lot of situations that people do not consider of public domain. For instance, we can refer to electronic mail.[45] Even if today a lot of Americans are afraid that their messages are not private and that they are monitored by someone interested in doing this, there is no doubt that a mail message is private. Therefore, concluding that the Internet as a whole is public, will impair the protection of these private situations.

Furthermore, the tension between the First Amendment and the protection of young audiences certainly requires an appropriate solution. It is necessary to address the problem of the access by children to Internet sites that contain material that is not appropriate for them. The Communication Decency Act (CDA) [46] tries to protect children from receiving indecent communications but it will probably be considered unconstitutional by the Supreme Court for the vagueness of some of its definitions and for its overbreadth.[47] If the Internet was regarded as a public forum and as a public network, these problems would hardly find a solution.

5: A possible solution: selective application of the Public Forum doctrine.

The preceding analysis demonstrates that the Internet is not completely public and that the First Amendment will not be applied to the numerous private entities that it includes. Nevertheless we have demonstrated that its nature, even in private electonic forums is much more similar to a public forum than to a not public forum.

Taviss [48] has instead taken into consideration the possibility to consider the whole Internet as a limited public forum. He is not persuaded by this solutuion and concludes that:

unfortunately, the tenor and trend of the United States Supreme Court decisions after Perry have severely limited the availability of this category. After Cornelius,[49] the existence of a limited public forum depends upon the governments intent to make a non public forum available for expressive activity, and to grant it the rights of a public forum.

Therefore he suggests a solution to this issue with two proposals: judicial action and legislative action. The first proposal aims at encouraging the courts to grant electronic forums greater protection as they become more prevalent.[50] This will involve, according to this commentator, that courts will have to afford limited public forum status to a broader spectrum of public property. Furthermore courts should consider private computer systems that form a part of the information marketplace [...] as state actors because the public and private entities will have become inextricably entangled.[51]

The other proposal requires recognition of full First Amendment protection for most public forums. Congress could require any agency that establishes a computer system to grant it appropriate protections for expressive activity.[52] Congress could also enact legislation that regulates private electronic forums. [...] This would be possible under the rubric of the Commerce Clause.[53]

These proposals suggest that a solution could come from an interpretation of the Internet as a more homogenous entity where different situtation deserve the same level of protection by the First Amendment. Unfortunately, both will probably take some time to become effective. The last one in particular will probably require substantial activism by the Congress and will probably face the criticism of those who think that the Internet should not be regulated at all.[54]

These solutions aim at establishing further protection for private entities in the future but they do not answer to our question. In particular we want to consider if there is a possibility, at the present time, to apply the public forum doctrine to the Internet.

It seem to us that at the present time the only way to apply the public forum doctrine to the Internet, is not considering the network of networks as a homogenous entity.

We have demonstrated in this work that some forums should be treated as public and others should be treated as non public. Taken as a whole, the Internet should not be seen as a public or a private forum, but as a more complex entity that encompasses public and non public forums within it.

In the next future the NII, the National Information Infrastructure, one of the projects of the Clinton Administration [55], will enhance the potentialities of the Internet. This will emphasize constitutional problems in particular in those fields related to the freedom of speech. In the NII, private and public entities will coexist as it happens at the present time in the Internet. The opening of the NII is not like the opening of a new park. It is much more vast and complicated, like the opening of a new city or university.[56] In the NII, as in Internet, will require an analysis that breaks down this great development into smaller units.[57]

This solution of course imply a clarification of the distinction between public and non public forums. A forum can be considered public first of all if it is owned by the Government or by any other public institution. For instance, a network operated by a public university should be considered as public. Another essential element is the absence of a profit interest.

Furthermore, as it happens in the Santa Monicas PEN [58], an unrestricted access to this facilities is necessary. In fact, in networks operated by private groups and for commercial purposes, the payment of a fee is usually required.

Finally, the forum must aim at allowing the free expression of ideas, without banning a particular point of view. It seem to us that if all these conditions are satisfied, the freedom of speech in this context is protected by the First Amendment and, according to the public forum doctrine, regulations could be possible only if narrowly tailored to serve a compelling interest.

Considering the Internet as a non-homogenous entity, will of course cut off the protection of the First Amendment a lot of private networks. In these places probably the solution can only come from the Congress.

Some situations should always be considered as private. Even if a forum qualifies as a public forum, of course the electronic mail, or sites with restricted access will still be considered as private. As in park there is no duty to speak loudly, allowing to everyone to listen to a private conversation, as in a public forum there is no reason to exclude the existence of private spaces.

Furthermore, the Supreme Court held that a zoning regulation that impede the creation of X-rated theaters near schools, churches and parks does not violate the First Amendment. A similar regulation could be upheld even in the Internet, if this is necessary to satisfy a compelling state interest.

6: Conclusions.

How and under which conditions the protection of the First Amendment extends to electronic forums is therefore emerging as a most significant issue. However, it is a situation that as yet has rarely been addressed by the Courts. For this reason ACLU v. Reno seems to be one of the most interesting cases in the last few years. Some degree of speculation is always present in discussions about these topics as it happens for other emerging issues posed by the sprawling Internet. In First Amendment situations he Court has frequently made distinctions and therefore the legal reasoning that will be used in future cases is difficult to predict. It is however certain that computer based expression contains the potential, technologically and ideologically, to be the ultimate marketplace of ideas. [...] In an electronic forum, there can be no discrimination because factors such as race, religion and economic status, do not accompany the message.[59] The numerous potentialities and positive aspects of computer based expression make it essential to afford electronic forums the broadest possible First Amendment protection. This should be regarded as the essential goal of any future regulation or judicial interpretation in this field.

* Angioletta Sperti, J.D. University of Pisa (Italy) 1996; LL.M. UCLA, School of Law, 1997.The author wishes to thank Professor Stuart Biegel of UCLA School of Law for his help and valuable comments.

[1]See, Edward A. Cavazos, Gavino Morin, Cyberspace and the Law: Your Rights and Duties in the On-Line World, The MIT Press, Cambridge, Massachusetts, 1994 at 1. See also Laurence H. Tribe, The Constitution in Cyberspace, Keynote address at the First Conference on Computer, Freedom and Privacy, (last modified Dec. 16, 1996) <http://www. io.com/SS/tribe.html>.

[2] The Cyberspace includes the Internet, BBS, academic systems (systems that are operated by universities, colleges and are usually available to faculty and students for various functions), corporate systems (many corporations operated computer systems that include e-mail, conferencing capabilities and are sometimes connected to the Internet) and individual systems. See, Michael Taviss, Dueling Forums: the Public Forum Doctrines Failure to Protect the Electronic Forum, 60 U. Cin. L. Rev. 757 at 763-6. We will take into consideration this issue,infra, 3.

[3] See, Thomas S. Mulligan, The Internet Backbone, Los Angeles Times, February 3, 1997, sect. D., at 1.In the past the backbone was deployed and administered by the United States Government for military and research purposes. See, infra at note 33.

[4] In order to have an idea of the dimensions of the Internet, see id. at 4.

MCIs [whose lines are part of the Internet backbone] monthly Internet traffic -now about 330 terabytes (330 trillion bytes)- has been tripling yearly for the last three years and should be well into the petabytes (think of a 1 followed by 15 zeroes) when the new millennium arrives.

[5]See, Norman Redlich, David R. Lurie, First Amendment Issues presented by the Information Superhighway, 25 Seton Hall L. Rev. 1446 (1995) at 1448.

[6]Online Law, Contributing Authors, The Role of the First Amendment Online, by Ruth Hill Bro at 305.

See, Fred H.Cate, The First Amendment and the National Information Infrastructure, 30 Wake Forest L.Rev. 1 (1995), Jerry Berman and Daniel J. Weitzner, Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media, 104 Yale L.J. 1619 (1995); Cass R. Sunstein, The First Amendment in Cyberspace, 104 Yale L.J. 1757, 1769 (1995); Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 Yale L.J. 1639 (1995); E. Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805 (1995); L. Lessig, The Path of Cyberlaw, 104 Yale L.J. 1743, 1745 (1995); Denise Caruso,The Prospect of Internet Censorship Raises Troubling Issues for Business, The New York Times, Dec. 18, 1995; David J. Goldstone, The public forum Doctrine in the Age of the Information Superhighway (Where Are the Public Forums on the Information Superhighway?) 46 Hastings L.J. 335, 1995; James C, Goodale, Creighton O M. Condon, Robert D. Joffe, Nicholas J. Jollymore, John R. Tyler, Symposium: Panel I: the Challenging Landscape of Jurisprudence in Light of the New Communications and Media Alliances, 6 Fordham Intell. Prop. Media & Ent. L.J. 427, 1996; Michael Johns, The First Amendment and Cyberspace: Trying to Teach Old Doctrines New Tricks, 64 Cinc. L. Rev. 1383, 1996; Pamela Mendels, Online Free Speech Issues Come of Age, The New York Times, January 4, 1997, B10; John M. Phelan, Robert F. Schneider, Steven Shapiro, Jacob Zamansky, Symposium: First Amendment and the Media: Regualating Interactive Communications on the Information Superhighway. Panel I: the Changing Landscape of First Amendment Jurisprudence in Light of the Techonological Advances in Media, 5 Fordham Intell. Prop. Media & Ent. L.J. 235, 1995.

[8] The text of the oral arguments of the ACLU v. Reno case is available at the following url: <http://www.aclu.org/ issues/cyber/trial/sctran.html>.

[9] The Communications Decency Act was enacted on February 1, 1996. Its text is available at the following url:<http://epic.org/free_speech/ censorship/cda.txt>.

[10] See, on this issue, Stuart Biegel, Hybrid Domain: The First Amendment and the Public-Private Distinction On-Line, Sept. 26,1996, L.A. Daily Journal. The text of this article is available at: <http: www.gseis.ucla.edu/iclp/sep96.html>.

[11] Angioletta Sperti, The Protection of the Right of Privacy in Electronic Mail, LL.M. Thesis, UCLA School of Law, 1996/97.

[12] See, Laurence H. Tribe, American Constitutional Law, Foundation Press, 1988 at 785-1061; Gerarld Gunther, Constitutional Law, Foundation Press, 1991 at 994-1502. See Gunther, id. at 1317.

[13]Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983).

[14] Cox v. Lousiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Bachellar v. Maryland, 397 U.S. 564 (1970); Coates v. Cincinnati, 402 U.S. 611 (1971); Boos v. Barry, 485 U.S. 312 (1988).

[15]United States v. Kokinda, 497 U.S. _ (1990).

[16]See also Hague v. Cio, 307 U.S. 496 (1939).

[17]Therefore regulations cannot aim at limiting the expression of a particular point of view. See Boos v. Barry, 108 S. Ct. 1157 (1988) and Chicago Police Department v. Mosley, 408 U.S. 92 (1972).

[18] Ward v. Rock Against Racism 491 U.S. 781 (1989).

[19] For instance, jails (Adderley v. Florida, 385 U.S. 39 (1966)); military bases (Greer v. Spock, 424 U.S. 828 (1976)); areas sorrounding a courthouse (Cox v. Lousiana, 377 U.S. 288 (1965)).

[20]Perry, 460 U.S. at 45.

[21]Supra at note 8.

[22]Plaintiffs were represented by Washington D.C. Attorney Bruce J. Ennis and the Government by Deputy Solicitor General Seth P. Waxman.

[23]See, Stuart Biegel, Oral Argument- ACLU v. Reno, Los Angeles and San Francisco Daily Journals, April 1, 1997.On this important case see, Jay Sekulow and James Henderson, Sr., Unsafe at any [Modem] Speed: Indecent Communications via Computer and the Communications Decency Act of 1996, 1 J. of Tech. L. & Pol.'Y _ (Spring, 1996) <http://journal. law.ufl.edu/~techlaw/1/sekulow.html>; Alan Lewine, Making Cyberspace Safe for Children: A First Amendment Analysis of the Communications Decency Act of 1996", available in a draft at <http:// www.dcez.com/~alewine /cda96/CDAdraft.html>; Burning Down the House to Roast the Pig: The U.S. Congress Takes on Internet Indecency (29-4 Law/Technology Journal Of The World Jurist Assn, Dec. 16, 1996).

[24]This analogy was proposed by Mr. Waxman.

[25]Justices OConnor and Kennedy suggested this analogy in their questions to Mr. Waxman. See, Biegel, supra at note 23.

[26]This analogy was proposed in Justice Depatments briefing. In particular, the Government suggested to apply to the Internet the same rationale of Pacifica v. FCC (438 U.S. 726 (1978)), the case that considered the complaints of a father who heard the broadcast of George Carlin's "Seven Dirty Words" monologue with his young son. In Pacifica, the Court found that "broadcasting has the most limited First Amendment protection." Building on this decision in its brief, the government argues that it should be able to regulate online speech because there is a "danger of inadvertent exposure to indecent material on the Internet as well." (the quotation is form Biegel, ibidem).

[27]This analogy was suggested by Plaintiffs in rebuting to the broadcasting media analogy suggested by the Government.

[28]This analogy was proposed by Justice Breyer, as communications in the Internet are realized by the means of modem connections.

[29]See, Biegel, Hybrid Domain...., supra at note 10.

[30]See, supra at note 20.

[31] Biegel, Oral Arguments..., supra, note 23.

[32] See, supra, note 13.

[33]The Arpanet, from which the Internet grew out, is a restricted access network estabilished by the Defense Advanced Research Projects Agency.

[34] The case of the Santa Monica Public Electronic Network (PEN) is provided by Michael Taviss, Dueling Forums: the Public Forum Doctrines Failure to Protect the Electronic Forum, 60 U. Cin. L. Rev. 757 at 763. Taviss clarifies that these forums called on-line discussion groups, range from freedom from Religion and Matters of Sexes to Vegetarian Foods. Other features include direct access to city government officials and politicians, with a guaranteed query response tune if less than one day. The municipality [of Santa Monica] has apparently not imposed any restrictions on subject matter or access to the PEN.

[35]See, Biegel, Oral Arguments..., supra at note 23. Biegel cites Bethel School Dist. v. Fraser, 478 U.S. 675 (1986).

[36]See, Henry H.Perritt, Law and the Information Superhighway, 1996 at 6.2.See also, Jonathan Rosenoer, Cyberlaw: the Law of the Internet, Springer, 1997.

[37]See,supra at note 13.

[38] See, David J. Goldstone, supra note 7 at 350.

[39]See, Taviss, supra , note 2, at 768.

[40]Marsh v. Alabama, 326 U.S. 501 (1946).

[41]Subsequent cases on the public function argument are Hudgens v. NLRB (424 U.S. 507, (1975)) where the Court rejected First Amendment claims of workers to picket at privately owned shopping malls and Lloyd Corp. v Tanner 407 U.S. 51 (1971) where the Court reached similar conclusions.

[42]See, Taviss, supra, note 2.

[43]Burton v. Wilminton Parking Authority, 365 U.S. 715 (1961).

[44]See, Moose Lodge no. 107 v. Irvis ( 407 U.S. 163 (1972)) where the Court considered if providing liquor licence linked the state with a private club engaged in discriminatory practises, and Columbia Broadcasting System v. Democratic National Committee (412 U.S. 92 (1973)) about the CBS refusal to sell broadcast time for anti-war advertisement and an alleged entanglement with the FCC that upheld CBS decision.

[45]See, on this subject and on the difficulties in finding protection for the right of privacy in the electronic mail, Sperti, supra, at note 11.

[46]See, supra at note 9.

[47]Biegel,Oral Arguments..., supra at note 23, summarizes the most controversial rules contained in the CDA: The criminal provisions at issue in the litigation are embodied in two sections of the CDA. Section 223(a)(1)(B) applies to "telecommunications device[s]" and makes it a felony to transmit an "indecent" communication "knowing that the recipient of the communication is under 18 years of age." The term "indecent" is undefined in the statute.

Section 223(d)(1) applies to "interactive computer services." It criminalizes communications to minors that, "in context, depict[] or describe[], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Section 223(d)(1)(A) makes it a crime to "use[] an interactive computer service to send [such material] to a specific person or persons under 18 years of age." Section 223(d)(1)(B) makes it a crime to "display [such material] in a manner available" to any person under eighteen.

[48]See, Taviss, supra at note 2 at 785.

[49]Cornelius v. NAACP Legal Defence & Educ. Fund, (473 U.S. 788 (1985)) at 802-06.

[50]Taviss,supra, at note 2, at 789.

[51]Taviss, id., at 791.

[52]Taviss, id. at 792.

[53]Taviss, ibidem.

[54] Many commentators have expressed their discomfort with the public forum doctine especially when it is applied to situations occurring in the Information Age. See, Goldstone, supra, note 7 at 369. For instance, Richard B. Saphire, in his article Reconsidering the Public Forum Doctine, 59 U. Cin. L. Rev. 739, 742 (1991) suggested that a more flexible approach -- such as the one employed in Grayned v. City of Rockford [FN159] that asks 'whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time' [FN160] -- may offer better protection for expressive freedom than the Perry framework.

[55] The Clinton Admistration, however, would like to leave to private entities the concrete realization of the NII. The proposal aims only at creating the premises for the future creation of the NII. Goldstone, supra at note 7, has taken into consideration the First Amendment issue that will be posed by the creation of the NII. He described the NII as a situation where the distances between home and workplace, individual and Government, and people all over the world will become much shorter because of more efficient and powerful electronic communications.

[56] Goldstone, supra , note 7 at 382.

[57] Id. at 383.

[58]] About the Santa Monica Public Electronic Network, see note 34.

[59]]Taviss, supra note 2, at 795.

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