In the offline world, we've seen this intersection in (among
other situations) U.S. Supreme Court cases addressing private
speech at privately owned company towns and shopping centers. In
some cases, the Supreme Court has said that certain landowners
cannot prevent speakers from speaking on their private property.
However, in other cases, the landowner's property rights have
trumped the speaker's right to speak on the property, allowing
the landowner to "censor" the speaker.
In the online world, the speech/rights dichotomy raises equally
complex issues. Online private actors routinely use their
private property (such as computers and networks) to create
virtual spaces designed for speech, although speaker access is
usually controlled by contract. An online provider exercising
its property or contract rights inevitably squelches a speaker's
rights. But despite online providers' capacity to exercise their
rights capriciously, courts so far have unanimously held that
private online providers are not state actors for First
Amendment purposes. In one representative case, AOL could refuse
to deliver email messages when a spammer tried to send spam
through AOL's network. In other words, in theory, courts could
do something about providers squelching speech, but have sided
with providers because the Constitution doesn't apply in these
cases. But how do we distinguish between AOL's response to spam
(which seems right) and a virtual world's decision to kick off a
user? In both cases, the online provider can choose, but we're
tempted to side with AOL on spam and side against virtual world
providers on everything else. It's that inconsistency that I'm
trying to address here.
The virtual world industry is burgeoning. Millions of users
participate in such complex interactive spaces as EverQuest,
Second Life, World of Warcraft, and The Sims Online. With the
emergence of these "virtual worlds," we must once again consider
how we balance a customer's speech against a virtual world
provider's rights to squelch speech. To strike a balance, we
must decide whether virtual worlds are more like physical world
company towns or shopping centers, or are just another category
of online providers.
|
