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12 May 2009

Free Speech on the Internet

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. US Constitution Amendment I


First and most importantly, the First Amendment limits the power of Congress to restrict speech. 1

That is, only government action is restricted. The acts of private persons that limit free expression and free speech are not prohibited by the First Amendment. The constitutional right of free speech does not apply to private individuals or private property unless the individual is acting in a governmental capacity, or the property is used for a governmental purpose. 2 Therefore constitutional protections do not apply on someone else’s property, except where the property is open to the public such as in a shopping center.

The Supreme Court has not explicitly declared the Internet a public forum for purposes of free speech protection. It has stated that the Internet ‘‘constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can ‘publish’ information.’’ 3

Does this mean that the owner of a website is required to permit any person to publish speech even if they disagree with the content of that speech? According to the Federal District Court for the Eastern District of VIrginia, the answer is a resounding no.

In Noah v. AOL Time Warner 4 the plaintiff alleged that AOL had violated his First Amendment right to free speech by censoring his statements. The Court disagreed with the plaintiff, and wrote:

“Yet, even assuming the truth of plaintiff’s allegations, the First Amendment is of no avail to him in these circumstances; it does not protect against actions taken by private entities, rather it is a guarantee only against abridgment by government, state or federal.”

The Court also stated that on line chat rooms are not places of public accommodation such as a shopping center (see note 2). The Court clarified Title II of the Civil Rights Act 5 by stating that it applies to actual physical places, not on line locations such as chat rooms.

In conclusion, individuals may have no constitutional recourse when their speech is censored by private individuals or private commercial entities and Internet service providers.


Notes

1. The Bill of Rights is a restriction on the Federal Government only. The protections and prohibitions of the Bill of Rights are applied to State governments via the Due Process Clause of the Fourteenth Amendment.)

2. Robins v. Pruneyard Shopping Center, 447 U.S. 74, 1980

3. Reno v. ACLU, 521 U.S. 844, 1997.

4. Noah v. AOL Time Warner 2003 (affirmed by unpublished opinion of United States Court of Appeals, 4th Circuit).

5. Title II Civil Rights Act US Department of Justice

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