Karen Strauss <[log in to unmask]> said that she is ...
> looking for some suggestions on how I an tell the people on the list that
> there are no First Amendment privileges on my list because it is a
> privately run and privately funded enterprise without alienating the people
> that I want to keep on the list.
Here is a post from the Cyberlaw workshop, written by three college law
professors, that addresses this very issue. It is a tad bit long (and I
left a pretty big tail on the end of this), but it really does resolve a
lot of issues that all of us have had to face at one time or another ...
CYBERSPACE LAW FOR NON-LAWYERS
Topic: Free Speech: The First Amendment
Applies Only to the Governement
(Number 2 of 20 on the topic FREE SPEECH)
E-Mail Number: 41
Date Posted: 16 October 1996
* * * * * * * * *
FREE SPEECH 2:
THE FIRST AMENDMENT APPLIES ONLY TO THE GOVERNMENT
The first few words of the First Amendment are "Congress
shall make no law . . . ." The Bill of Rights was
originally meant to apply only to the federal government,
not to the states or to private organizations.
The Fourteenth Amendment, which says that "No State shall .
. . deny any person . . . liberty . . . without due process
of law," has been interpreted to apply the protections of
the First Amendment equally to state governments. (There's
a hot debate about whether this is a historically sound
interpretation, but we'll set this aside here.) And courts
have also read the First Amendment as applying to executive
agencies and the federal courts as well as Congress.
But absent really exceptional circumstances, the First and
Fourteenth Amendments do *not* constrain private entities:
Private employees, private university, private dinner party
hosts, private businesses.
There can be nothing unconstitutional about a private list
moderator rejecting your posting to a discussion list,
Prodigy editing out your dirty words, or a service provider
refusing to let its users put up Nazi-themed Web pages.
Only "state action" (which actually includes all government
action, including federal action) implicates the
constitutional protections.
What if the speech restrictions are imposed by a private
actor who is in some way related to the government -- for
instance, subsidized or employed by a government agency?
The rule is that "state action" is present only when the
speech restriction is dictated or influenced by the
government. Thus,
- GOVERNMENT FUNDING ISN'T ENOUGH: If a
private employer restricts what his employees
may e-mail, there's no state action, even if
the employer gets all its business from
government contracts.
- GOVERNMENT OWNERSHIP OF THE COMPUTER ISN'T
ENOUGH: If a public university lets someone
set up a moderated discussion list on its
computer, and the moderator excludes certain
messages, there's no state action, even
though the list is on a public computer.
- GOVERNMENT EMPLOYMENT OF THE MODERATOR ISN'T
ENOUGH: The fact that a list moderator is
employed by the government is not by itself
enough: If a public university lets a
faculty member set up a moderated discussion
list, there's almost certainly no state
action, so long as the faculty member's
decisions are his own and not dictated by the
government.
- GOVERNMENT DICTATION OF SPEECH RESTRICTION IS
ENOUGH: But if a public entity has an
employee set up a moderated list, and
*instructs* the employee to reject any, say,
profane or bigoted messages, there is state
action (though conceivably, as we'll see
below, the government's action might still be
constitutional).
Qualification: This relates only to rights under the U.S.
Constitution. Some state constitutions and state statutes
do provide protection against some private speech
restrictions. A California law, for instance, generally
bans many restrictions imposed on students by private
universities.
* * * * * * * * * * * * * * * * * * * * * *
authors:
Larry Lessig David Post Eugene Volokh
* * * * * * * * * * * * * * * * * * * * * *
Cyberspace-Law for Non-Lawyers is presented by the
Cyberspace Law Institute and Social Science Electronic
Publishing.
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archive of the course materials.
You can retrieve all of the material posted to date for
Cyberspace-Law For Non-Lawyers by sending e-mail to:
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with the (optional) subject line:
GET INDEX
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(\__/) .~ ~. ))
/O O ./ .' Patrick Douglas Crispen
{O__, \ { The University of Alabama
/ . . ) \ [log in to unmask]
|-| '-' \ } http://ua1vm.ua.edu/~crispen/
.( _( )_.'
'---.~_ _ _& Warning: squirrels.
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