In only a few short years, bulletin-board services, chat rooms and message boards on the Internet have launched a communications revolution. Private individuals, through online service providers such as Yahoo! and America Online, have cheaply and conveniently disseminated their thoughts on a scope undreamed of only a decade ago.
Online service providers can, and have, permitted even the most socially noxious interactions to flourish within very broad limits, subject only to whatever competition those messages may find within the marketplace of ideas. However, online service providers may be the victims of their own success. An online service provider's trade-off for becoming the 21st century's marketplace of ideas may be the loss of the right to control the content of its Web site.
Currently, online service providers and other hosts face moral and political pressure to monitor and control the content of their forums. Even though online service providers have been granted limited immunity under the Digital Millennium Copyright Act (17 U.S.C. Section 512, 1999) for postings by others, this pressure can be formidable.
For example, in February, the Anti-Defamation League called on Yahoo! to enforce its stated policy against content that is "racially, ethnically or otherwise objectionable" by shutting down a chat room. And the past several months have seen a significant body of commentary discussing whether Internet "posters," private individuals who use their anonymity to post information regarding publicly traded companies (often scathingly negative or about confidential matters), should be "outed" by a "victim" company's service of a "John Doe" subpoena on an online service provider to ferret out the poster's identity. See Compaq Computer Corp. v. John Does 1-4, CV785143 (Santa Clara County Super. Ct., Oct. 8, 1999).
This debate is usually engaged on the level of policy and public relations. What should online service providers do, and what consequences will they face in the marketplace if they fail to do "the right thing"? This debate assumes that the legal framework is clear. After all, Internet sites are private property, so can't the owners exercise control over the content of their Web site? And isn't an online service provider's right to disclose its customers' identity strictly a matter of contract between the online service provider and those customers?
Perhaps not. Online service providers, as the "shopping centers" of the 21st century, may be subject to significant legal restrictions on their operation of such public forums. In the seminal case of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979), aff'd, 447 U.S. 74 (1980), the California Supreme Court held that the free-speech guarantees of the California Constitution "protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned."
Appellate courts in Colorado, Massachusetts, New Jersey, Oregon and Pennsylvania have given their state constitutions similar interpretations, as has a Texas trial court. See Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991); New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 650 A.2d 757 (N.J. 1994); Lloyd Corp. v. Whiffen, 773 P.2d 1294 (Ore. 1989); Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981); and Nuclear Weapons Freeze Campaign v. Barton Square Shopping Center, 349,268 (126th Tex. Jud. Dist. Ct., Travis County, Texas, July 23, 1983).
If the courts apply this rule to the Internet, the result will be to significantly restrict providers' control over their own sites.
In Pruneyard, two high school students attempted to solicit signatures opposing a United Nations resolution against "Zionism" at the privately owned Pruneyard Shopping Center. The center's policy was to not permit anyone "to engage in publicly expressive activity, including the circulating of petitions, that [was] not directly related to the [center's] commercial purposes." The California Supreme Court accepted the center's position that it enforced its policy consistently and strictly.
When Pruneyard reached the court, it was already settled that the First Amendment did not apply to private property, other than in the exceptional instance of the company town. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). Reversing Diamond v. Bland, 11 Cal.3d 331 (1974), the California Supreme Court concluded that the Fifth Amendment property rights of the center's owners did not bar California from providing greater speech rights on private property than does the federal Constitution. The U.S. Supreme Court ultimately affirmed the California Supreme Court on this point. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
This conclusion established that the California Supreme Court was free to act. In the nation's first decision of its kind, the California Supreme Court held that the free-speech guarantees of the state constitution "protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." The court justified and limited its decision by noting that suburban shopping centers have supplanted and replaced downtown business districts "as a place for large groups of citizens to congregate." Since this rationale applies only to large shopping centers, the court expressly declined to apply its ruling to "the proprietor of a modest retail establishment."
An argument exists that the Pruneyard rationale applies to major Web sites. As the New Jersey Supreme Court noted when it elected to follow Pruneyard, shopping centers issue a simple invitation to the public: "Come here, that's all we ask. We hope you will buy, but you do not have to, and you need not intend to. All we ask is that you come here." New Jersey Coalition.
Shopping centers issue this broad invitation knowing that "people go there just to meet, to talk, to 'hang out,' and no one stops them; indeed, they are wanted and welcome. The activities and uses, the design of the property, the open spaces, the nonretail activities, the expressive uses, all are designed to make the centers more attractive to everyone, for all purposes, to make them a magnet for all people, not just shoppers." New Jersey Coalition.
Major Internet providers are obvious candidates for the modern application of this principle. These providers use their message boards and chat rooms to foster a sense of community. They have considerable incentive to increase their membership, because an important source of revenue is advertising; a large customer base translates to more advertising dollars.
This observation is confirmed by sites, such as eBay and Amazon.com, whose purpose is strictly e-commerce. These sites have opened "community" areas, where discussion, "hanging out" and general community building is encouraged. A financial site, the Motley Fool, has made its community-building goal explicit. It is a safe assumption that these commercial enterprises perceive their communities to have a value greater than the expenses needed to maintain them.
As a result, for those providers that select in their user agreements the law of a state that follows Pruneyard, two consequences may follow. First, message boards, bulletin-board services and chat rooms, like privately owned shopping centers, may be open to all comers, subject only to reasonable time, place and manner restrictions. Said another way, online service providers with significant traffic, much like the shopping center in Pruneyard, may no longer be able to regulate who comes to their site and what they say, regardless of whether it is offensive to the online service provider or its users.
Second, the offensive user may be entitled to anonymity. The Supreme Court has held that the First Amendment protects the right to anonymous speech from government interference. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
Consequently, actions resulting in the restriction of free speech, such as prohibiting persons from engaging in anonymous speech, are unconstitutional. American Knights of the Ku Klux Klan v. City of Goshen, 50 F. Supp.2d 835 (N.D. Ind. 1999) (holding ordinance prohibiting KKK from wearing masks to conceal identity from the public unconstitutional because of its tendency to restrict freedom to distribute information).
By analogy, the courts in states adopting Pruneyard may conclude that state constitutional free-speech provisions protect the right to anonymous speech from unwanted disclosure by private parties. Should the courts choose this path, affected online service providers would be prohibited from freely disclosing their members' identities and, arguably, would be required to give notice to the target of a "John Doe" subpoena before complying with that subpoena.
The courts have not yet confronted these issues. However, Web sites such as Yahoo! and eBay may be at risk that courts will hold these and other hugely successful online service providers to be "public fora" as identified in Pruneyard. If so, then these sites will have inadvertently yielded some control over their content. To avoid this result, major Web sites, or sites with aspirations of reaching the "big time," would be well advised to carefully consider minimizing their risk of being subject to the "shopping center" effect.
Online service providers can, and have, permitted even the most socially noxious interactions to flourish within very broad limits, subject only to whatever competition those messages may find within the marketplace of ideas. However, online service providers may be the victims of their own success. An online service provider's trade-off for becoming the 21st century's marketplace of ideas may be the loss of the right to control the content of its Web site.
Currently, online service providers and other hosts face moral and political pressure to monitor and control the content of their forums. Even though online service providers have been granted limited immunity under the Digital Millennium Copyright Act (17 U.S.C. Section 512, 1999) for postings by others, this pressure can be formidable.
For example, in February, the Anti-Defamation League called on Yahoo! to enforce its stated policy against content that is "racially, ethnically or otherwise objectionable" by shutting down a chat room. And the past several months have seen a significant body of commentary discussing whether Internet "posters," private individuals who use their anonymity to post information regarding publicly traded companies (often scathingly negative or about confidential matters), should be "outed" by a "victim" company's service of a "John Doe" subpoena on an online service provider to ferret out the poster's identity. See Compaq Computer Corp. v. John Does 1-4, CV785143 (Santa Clara County Super. Ct., Oct. 8, 1999).
This debate is usually engaged on the level of policy and public relations. What should online service providers do, and what consequences will they face in the marketplace if they fail to do "the right thing"? This debate assumes that the legal framework is clear. After all, Internet sites are private property, so can't the owners exercise control over the content of their Web site? And isn't an online service provider's right to disclose its customers' identity strictly a matter of contract between the online service provider and those customers?
Perhaps not. Online service providers, as the "shopping centers" of the 21st century, may be subject to significant legal restrictions on their operation of such public forums. In the seminal case of Robins v. Pruneyard Shopping Center, 23 Cal.3d 899 (1979), aff'd, 447 U.S. 74 (1980), the California Supreme Court held that the free-speech guarantees of the California Constitution "protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned."
Appellate courts in Colorado, Massachusetts, New Jersey, Oregon and Pennsylvania have given their state constitutions similar interpretations, as has a Texas trial court. See Bock v. Westminster Mall Co., 819 P.2d 55 (Colo. 1991); New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 650 A.2d 757 (N.J. 1994); Lloyd Corp. v. Whiffen, 773 P.2d 1294 (Ore. 1989); Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981); and Nuclear Weapons Freeze Campaign v. Barton Square Shopping Center, 349,268 (126th Tex. Jud. Dist. Ct., Travis County, Texas, July 23, 1983).
If the courts apply this rule to the Internet, the result will be to significantly restrict providers' control over their own sites.
In Pruneyard, two high school students attempted to solicit signatures opposing a United Nations resolution against "Zionism" at the privately owned Pruneyard Shopping Center. The center's policy was to not permit anyone "to engage in publicly expressive activity, including the circulating of petitions, that [was] not directly related to the [center's] commercial purposes." The California Supreme Court accepted the center's position that it enforced its policy consistently and strictly.
When Pruneyard reached the court, it was already settled that the First Amendment did not apply to private property, other than in the exceptional instance of the company town. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). Reversing Diamond v. Bland, 11 Cal.3d 331 (1974), the California Supreme Court concluded that the Fifth Amendment property rights of the center's owners did not bar California from providing greater speech rights on private property than does the federal Constitution. The U.S. Supreme Court ultimately affirmed the California Supreme Court on this point. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).
This conclusion established that the California Supreme Court was free to act. In the nation's first decision of its kind, the California Supreme Court held that the free-speech guarantees of the state constitution "protect speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." The court justified and limited its decision by noting that suburban shopping centers have supplanted and replaced downtown business districts "as a place for large groups of citizens to congregate." Since this rationale applies only to large shopping centers, the court expressly declined to apply its ruling to "the proprietor of a modest retail establishment."
An argument exists that the Pruneyard rationale applies to major Web sites. As the New Jersey Supreme Court noted when it elected to follow Pruneyard, shopping centers issue a simple invitation to the public: "Come here, that's all we ask. We hope you will buy, but you do not have to, and you need not intend to. All we ask is that you come here." New Jersey Coalition.
Shopping centers issue this broad invitation knowing that "people go there just to meet, to talk, to 'hang out,' and no one stops them; indeed, they are wanted and welcome. The activities and uses, the design of the property, the open spaces, the nonretail activities, the expressive uses, all are designed to make the centers more attractive to everyone, for all purposes, to make them a magnet for all people, not just shoppers." New Jersey Coalition.
Major Internet providers are obvious candidates for the modern application of this principle. These providers use their message boards and chat rooms to foster a sense of community. They have considerable incentive to increase their membership, because an important source of revenue is advertising; a large customer base translates to more advertising dollars.
This observation is confirmed by sites, such as eBay and Amazon.com, whose purpose is strictly e-commerce. These sites have opened "community" areas, where discussion, "hanging out" and general community building is encouraged. A financial site, the Motley Fool, has made its community-building goal explicit. It is a safe assumption that these commercial enterprises perceive their communities to have a value greater than the expenses needed to maintain them.
As a result, for those providers that select in their user agreements the law of a state that follows Pruneyard, two consequences may follow. First, message boards, bulletin-board services and chat rooms, like privately owned shopping centers, may be open to all comers, subject only to reasonable time, place and manner restrictions. Said another way, online service providers with significant traffic, much like the shopping center in Pruneyard, may no longer be able to regulate who comes to their site and what they say, regardless of whether it is offensive to the online service provider or its users.
Second, the offensive user may be entitled to anonymity. The Supreme Court has held that the First Amendment protects the right to anonymous speech from government interference. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
Consequently, actions resulting in the restriction of free speech, such as prohibiting persons from engaging in anonymous speech, are unconstitutional. American Knights of the Ku Klux Klan v. City of Goshen, 50 F. Supp.2d 835 (N.D. Ind. 1999) (holding ordinance prohibiting KKK from wearing masks to conceal identity from the public unconstitutional because of its tendency to restrict freedom to distribute information).
By analogy, the courts in states adopting Pruneyard may conclude that state constitutional free-speech provisions protect the right to anonymous speech from unwanted disclosure by private parties. Should the courts choose this path, affected online service providers would be prohibited from freely disclosing their members' identities and, arguably, would be required to give notice to the target of a "John Doe" subpoena before complying with that subpoena.
The courts have not yet confronted these issues. However, Web sites such as Yahoo! and eBay may be at risk that courts will hold these and other hugely successful online service providers to be "public fora" as identified in Pruneyard. If so, then these sites will have inadvertently yielded some control over their content. To avoid this result, major Web sites, or sites with aspirations of reaching the "big time," would be well advised to carefully consider minimizing their risk of being subject to the "shopping center" effect.
LLP.