Return to Cyberspace Law
& Policy Institute Home Page.
With regard to government regulation, there appears to be no debate. If Congress attempts to regulate the Internet, for example, then certainly the First Amendment would operate to limit the scope of permissible regulation. The same principles would generally hold true if any other public entity attempted similar regulation -- whether that entity was a government agency, a K-12 school district, or a public university.
Yet one could imagine a variety of possible scenarios where private entities might seek to regulate the online world. At first glance, it might seem that such regulation would not be subject to the First Amendment, since no state action appears to be involved. A closer examination of this inquiry, however, reveals that from both a legal and a policy perspective the conclusions may not be so clear after all.
A threshold analysis in this context might focus on whether the Internet itself should be considered a public "freeway" or a private road. To many observers, it would appear that this complex and unique online world is public in nature. It was created by a government agency (the Defense Department) for a public purpose, and it began at a public university (UCLA). While no one owns the Internet and no agency is in charge, public entities continue to play a dominant role in its growth and development.
In addition to providing the large number of publicly owned computers that serve as "hosts" for this network of networks, public entities have stimulated the unprecedented expansion of the "information superhighway" in a variety of important ways. Federal and state governments, for example, have been very active in this area, generating new policy initiatives, developing new programs, and posting a tremendous amount of valuable information on web sites and gopher sites. And public colleges and universities continue to play a dominant role on the Internet by supplying a wealth of resources and providing easy access for a very large number of regular users.
On the other hand, it can certainly be argued that the Internet is increasingly becoming a private domain. For a growing number of people, access to the Internet is controlled by private companies such as commercial online services and Internet access providers. The number of private computer "hosts" increases daily, and many web sites are now posted and maintained by private companies and private parties. Large private corporations have been instrumental in funding new Internet-based programs. And private colleges and universities also supply Internet-related resources and provide access for students, faculty, and alumni.
If the Internet is public, then the First Amendment would apply to restrict the ability of even private "gatekeepers" such as commercial online services, Internet access providers, and private educational institutions to regulate expression on the Internet itself. If it is private, however, then arguably these private parties can at least regulate some of the expression of their paying customers.
A related inquiry focuses on the question of where private space ends and public space begins in cyberspace. If the Internet is deemed public space, does that public space extend to servers located in private buildings, companies, and homes? Does that public space extend to private electronic mail that is sent through the Internet, rather than through a privately owned network? Or, even if the Internet is deemed private space, does that mean that absolutely no First Amendment rights exist for individual users vis-a-vis the private gatekeepers?
Two U.S. Supreme Court opinions with potentially analogous facts -- PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 115 S.Ct. 2338 (1995) -- may shed some light on these issues from at least a legal perspective.
In PruneYard, the Court considered the question of whether the owners of a private shopping center in Campbell, California could deny plaintiffs access to the center for the purpose of circulating petitions not directly related to its commercial purposes. The PruneYard Shopping Center -- ostensibly a city within a city -- covered approximately 21 acres, 5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contained more than 65 specialty shops, 10 restaurants, and a movie theater.
Plaintiffs were high school students who sought to solicit support for their opposition to a United Nations resolution addressing Middle Eastern affairs. They had set up a card table in the corner of PruneYard's central courtyard, and -- until they were asked to leave -- had distributed pamphlets and had asked passersby to sign petitions which would be sent to the President and Members of Congress. These activities had been conducted in a peaceful and orderly fashion.
The California Supreme Court found for the plaintiffs, declaring that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." Writing for the U.S. Supreme Court, Justice Rehnquist concluded that this decision should be upheld. In so doing, he rejected a variety of arguments set forth by the shopping center, including the argument that a private property owner has a First Amendment right not to be forced by the State to use his or her property as a forum for the speech of others. Justice Powell, concurring in the opinion, cautioned however that he did not interpret the decision "as a blanket approval for state efforts to transform privately owned commercial property into public forums."
Fifteen years later, the Court in Hurley addressed the question of whether a private association of individuals organizing a public St. Patrick's Day parade must allow a gay, lesbian, and bisexual group (GLIB) to participate even if that group intended to impart a message that the organizers did not wish to convey.
The City of Boston had a long history of formal sponsorship with regard to this parade, which celebrated both St. Patrick's Day and Evacuation Day (the day that royal troops and loyalists had evacuated the city in 1776). In 1947, however, formal sponsorship ended when the Mayor granted authority to the South Boston Allied War Veterans Council to conduct the parade.
GLIB's request for inclusion in the parade was based on their desire to "express pride in their Irish heritage as openly gay , lesbian, and bisexual individuals." While plaintiffs' claim for inclusion in the parade rested solely on the Massachusetts public accommodations law, defendants raised First Amendment concerns that proved determinative.
In ruling for the defendants, a unanimous Court distinguished PruneYard, determining that a privately organized parade was actually a form of protected expression conveying a particular message -- and thus very different from a privately owned shopping center open to the public, where proprietors could disavow any connection with the message conveyed by those soliciting petitions. The Hurley Court concluded that plaintiffs' "disapproval" of the parade's statement "does not legitimize" use of the government's power to "compel" the organizers of the parade "to alter the message by including one more acceptable to others."
Applying the principles of these cases to the online world is no simple matter, since PruneYard might very well support a "freedom from regulation" approach, while Hurley could be used to justify greater restrictions. In addition, the question exists as to which of these two cases presents facts that are even analogous to cyberspace. It can be asserted that the PruneYard shopping center is more like the Internet, for example, because it is open to the public, contains commercial enterprises, and does not in and of itself purport to convey a message. But it can also be argued that the parade -- with its combination of public character and private control -- might be a more appropriate analogy.
While it will be many years before these legal and policy questions are sorted out, free speech continues unabated in most of the online world. And for the great majority of Netizens, this is as it should be.
Return to Cyberspace Law
& Policy Institute Home Page.