Message Boards and Chat Rooms:
Can they be Regulated?
In only a few short years, bulletin board services (“BBS”), chat rooms, and message boards on the Internet have launched a communications revolution. Private individuals, through Internet Service Providers (“ISPs”) such as Yahoo! and America OnLine, have cheaply and conveniently disseminated their thoughts on a scope undreamed of only a decade ago. However, ISPs may be the victim of their own success. An ISP’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 website.
Currently, ISPs and other hosts face moral and political pressure to monitor and control the content of their fora. This pressure can be formidable. For example, in February 2000, B’nai B’rith called on Yahoo! to enforce its stated policy against content that is “racially, ethnically or otherwise objectionable” by shutting down a chat room. And of course, a recurring issue is whether Internet “posters,” private individuals who use their anonymity to post negative or confidential information regarding publically traded companies, should be “outed” by service of a “John Doe” subpoena on an ISP seeking the poster’s identity.
This debate is usually framed as: What should ISPs 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 website? And isn’t an ISP’s right to disclose its customers’ identity strictly a matter of contract between the ISP and those customers?
Perhaps not. ISPs, as the “shopping centers” of the 21st Century, may be subject to significant legal restrictions on their operation of such public fora. In the seminal case of Robins v. Pruneyard Shopping Ctr., 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.” Courts in several other states have given their state constitutions similar interpretations. If applied to the Internet, the result will be to significantly restrict providers’ control over their own sites.
Robins v. Pruneyard Shopping Ctr.
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 not to permit anyone “to engage in publicly expressive activity, including the circulating of petitions, that [was] not directly related to the [Center’s] commercial purposes.”
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 Supreme Court expressly declined to apply its ruling to “the proprietor of a modest retail establishment.”
The Internet as a Shopping Center
One could argue that the Pruneyard rationale applies to major websites. 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.” 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 non-retail 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.”
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 revenues is advertising, and 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.
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, BBS’s, 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, ISPs 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 ISP 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. Consequently, actions resulting in the restriction of free speech, such as prohibiting persons from engaging in anonymous speech, are unconstitutional. 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 ISPs 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, websites such as Yahoo! and eBay may be at risk that courts will hold these and other hugely successful ISPs 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 websites, or sites with aspirations of reaching the “big time,” would be well advised to discuss with their counsel how to minimize the risk of being subject to the “shopping center” effect.
