DRAFT
This
essay is about Marsh v. Alabama, the company town case, and its
applicability to restrictions of Internet speech. Marsh teaches that
consolidated private control over the architecture of speech—sidewalks,
airwaves, telephone lines, packets—can be so extreme as to trigger two rare
occurrences in constitutional law: the
constitutional scrutiny and invalidation of a speech restriction undertaken by
a non-government actor; and the invalidation on First Amendment grounds of a
generally-applicable, content-neutral law that restricts speech that invades a
listener’s property. In the years since
Marsh, courts have confused and conflated--turningconflated its lessons—turning the holding into
an exception that proves the rule. Such
confusion may be harmless so long as circumstances sufficient to justify a Marsh-like holding never recur. But the unique malleability of the
Internet’s architecture, and the rise of powerful private companies joining
forces to mold and control it, should force us to take Marsh seriously again.
A.
The Two Faces of Marsh
The state action doctrine isdoctrine—that is, the rule that
the Constitution’s
limits apply only to the government and not to private actors[1]—is often invoked when
civil rights actions are brought on constitutional grounds against private
parties.[2] The analysis typically entails determining
whether behind-the-behind-the-scenes
government involvement or the assumption of government-like powers by a private
defendant justifies constitutional scrutiny of facially private acts. Strangely, Marsh v. Alabama is viewed as a classic case in this
jurisprudence, although the existence of state action in Marsh was so clear that Justice Black’s majority opinion does not
even mention the requirement.[3]
Marsh arose in Chickasaw,
Alabama, a company town owned by the Gulf Shipbuilding Corporation. The town, including its streets, sidewalks,
and stores, was accessible via a nearby public highway and was generally open
to outsiders. But signs identified the
town as “private property,” where “solicitaion of any kind” was off-limits.[4] A Jehovah’s Witness attempted to distribute
religious literature from a town sidewalk.
When she refused to depart after being told that she could not
distribute the literature without a permit (and that no permit would be issued
to her), the town police officer arrested her.
She was charged with criminal trespassing in violation of Alabama law.[5]
Ms.
Marsh raised the First Amendment in her defense, arguing that “to construe the
state statute as applicable to her activities would abridge her right to
freedom of press and religion contrary to the First and Fourteenth Amendments
to the Constitution.”[6] She was convicted by an Alabama trial court
despite this defense; the state appeals and supreme courts affirmed.[7]
The
U.S. Supreme Court reversed in a majority opinion by Justice Black that is
often cited as the source of a major thread of state action analysis.[8] But Grace Marsh was not suing a private
actor for violating the Constitution.
The state of Alabama was threatening her with a criminal penalty. She was in the classic position of a civil
disobedient attempting to validate constitutional rights against governmental attack.
Justice
Black’s opinion in Marsh nowhere
mentions “state action,” but he clearly identifies the state trespass rule, and
the prosecution enforcing it, as governmental speech restriction:
In our view the circumstance that the property
rights to the premises where the deprivation of liberty, here involved, took
place, were held by others than the public, is not sufficient to justify the State’s permitting a corporation to
govern a community of citizens so as to restrict their fundamental liberties
and the enforcement of such restraint by
the application of a State statute.
Insofar as the State has
attempted to impose criminal punishment on appellant for undertaking to
distribute religious literature in a company town, its action cannot stand.[9]
That a criminal prosecution establishes state
action is so clear as to escape mention in most cases.[10] Further, the Court has held that the state
action doctrine is no bar to raising the Constitution as a defense against
application of governmentally-enforced legal rules in civil cases brought by
private parties. Notably, in Shelley v. Kraemer the defendants
raised, inter alia, the Fourteenth Amendment’s equal protection clause as a
defense in civil suits brought because their homes had been sold to them in
violation of racially restrictive covenants.[11] The Supreme Court reversed the judgment for
the plaintiffs, finding state action based on the role of the state courts in
enforcing the admittedly private covenants:
That the action of state courts and of judicial
officers in their official capacities is to be regarded as action of the State
within the meaning of the Fourteenth Amendment, is a proposition which has long
been established by decisions of this Court. . . .
[T]hese are cases in which the States have made
available to [private] individuals the full coercive power of government to
deny to petitioners, on the grounds of race or color, the enjoyment of property
rights in premises which petitioners are willing and financially able to
acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of
the restrictive covenants is the difference to petitioners between being denied
rights of property available to other members of the community and being
accorded full enjoyment of those rights on an equal footing.[12]
Having
found state action, the Court proceeded to determine that the facially neutral
state enforcement of the private covenants was an unconstitutional denial of
equal protection.[13]
Under similar procedural circumstances, in New York Times v. Sullivan,[14]
the Court quickly disposed of the state action issue--raisedissue—raised to counter a
First Amendment[15] defense to
a libel action:
[The proposition that the Fourteenth Amendment
is directed against State action and not private action] has no application to
this case. Although this is a civil
lawsuit between private parties, the Alabama courts have applied a state rule
of law which petitioners claim to impose invalid restrictions on their
constitutional freedoms of speech and press.
It matters not that that law has been applied in a civil action and that
it is common law only, though supplemented by statute. The test is not the form in which state
power has been applied but, whatever the form, whether such power has in fact
been exercised.[16]
As
in Marsh and Shelley, the defendant was arguing that the legal rule that was
being applied to it in a judicial forum was unconstitutional; and, again, the
Court did not struggle to reach the conclusion that the state was implicated
and the rule subject to constitutional scrutiny.
The Sullivan
and Shelley Courts treated the state
action question as a simple one.
Although the Shelley holding
has been particularly controversial, the Supreme Court has reiterated the rule
that the judicial application of legal rules alleged to restrict constitutional
freedoms constitutes state action.[17] The Shelley
controversy can therefore be explained most convincingly as resulting not from
its apparently enduring state action analysis, but rather from the Court’s
treatment of the merits of the equal protection question. The Court could have held (and some say it
should have held) that, although there was state action, it did not violate the
equal protection clause for a state neutrally to enforce private contracts
without regard to their discriminatory motivation and impact.[18]
Similarly, Marsh
can be read as a difficult case not because of the state action problem, but
because the Alabama law making it a crime “to enter or remain on the premises
of another after having been warned not to do so,” was a seemingly neutral law
that only incidentally burdened speech and that ostensibly promoted a
significant countervailing interest--theinterest—the protection of private property.[19]
What then, is the explanation for Marsh’s prominent place in the state
action canon? Although, as noted above, Justice Black’s majority opinion points
to the infringement imposed by the state
rule and prosecution, elsewhere in the opinion there are indications that--regardlessthat—regardless of the
application of the state law of trespass--trespass—the managers of the company town were
behaving so much like a city government that their actions could be subject to constitutional scrutiny: “Whether a corporation or a municipality
owns or possesses the town the public in either case has an identical interest in the functioning of
the community in such a manner that the channels of communication remain free.”[20] The Court has subsequently referred to Marsh as if the holding depended on the
company town’s resemblance to a government actor, not on the actions of the
“real” government of Alabama.[21] Indeed, these subsequent cases have
suggested that there would have been state action sufficient to trigger
constitutional scrutiny in Marsh even
if there had been no state prosecution at all but, instead, the Jehovah’s
Witness had brought her own action asserting a First Amendment right to access
the company sidewalks.[22]
There are then,thus two readings of Marsh.
The first reading is that application
of state law in a way that cuts off a speaker’s access to an entire private
town is clearly state action and, more strikingly, that the action violates the
First Amendment notwithstanding the facial neutrality of the law and the
countervailing private property interests.
I will call this reading “Marsh
One.” The second reading is that,
regardless of the application of state law, private actors (in Marsh, the managers of the company town)
can behave so much like the government that their
actions will be subject to constitutional scrutiny.[23] It is this second reading of Marsh (“Marsh Two”) that has prompted would-be speakers to forgo civil
disobedience and instead bring their own lawsuits demanding access to shopping
malls, migrant worker camps, and other privately-owned fora.[24]
Despite recognizing Marsh Two as a viable state action theory, the Supreme Court has
effectively limited its application in the First Amendment context to the facts
of Marsh itself. In Lloyd
Corp. v. Tanner[25] and Hudgens v. NLRB,[26]
the Court faced circumstances in which, because there was no criminal
prosecution or even private lawsuit against the speakers (who brought suit
demanding access to privately-owned shopping malls), the state action hurdle
could be cleared only if the Marsh
Two test was satisfied. In both cases,
the Court distinguished the defendant shopping malls from the company town in Marsh:
although the shopping malls had pedestrian areas analogous to municipal
sidewalks, the mall owners did not exercise “the full spectrum of municipal
powers.”[27] They were not comparable to “the very
special situation of a company-owned town, complete with streets, alleys,
sewers, stores, residences, and everything else that goes to make a town.”[28]
B. The Marsh Muddle
Unfortunately, some lower courts have applied
this narrow reading of Marsh Two to
reject, for lack of state action, First Amendment challenges in cases where
there clearly was state action under Marsh One, Shelley, and Sullivan.[29] Several recent state court decisions
illustrate the problem.
In State
of Minnesota v. Wicklund,[30]
the Supreme Court of Minnesota held that lack of state action precluded a First
Amendment defense raised by anti-fur protesters charged with trespassing in a
shopping mall--thatmall—that is, defendants
who sought to use the First Amendment as a shield against state prosecution a
la Marsh One. The Court explained the requirement of “some
form of government action” to trigger constitutional scrutiny, traced the
narrowing of the Marsh (Two) state
action analysis, and concluded that “[i]t is now beyond debate that under the
circumstances here, appellants’ speech is not protected under the First
Amendment.” The Supreme Court of Alaska
used almost identical logic to conclude that an abortion protestor could not
raise a First Amendment defense to her trespass conviction because “[t]he
[abortion] facility is not even remotely similar to the company town in Marsh.”[31] Although in both of these cases the Marsh One test was satisfied, the courts
overlooked the state prosecution and applied the much narrower Marsh Two rule to reject the First
Amendment argument on its face.
In People
of Illinois v. Yutt,[32]
an Illinois appeals court stated the rule of Marsh Two: “the first
amendment provides no protection from the abridgment of free expression by a
private corporation or person except under the circumstances enumerated in Marsh v. Alabama.” It then applied that rule to conclude, with no
further explanation, that “in the instant case, we find that the defendants’ arrests did not violate
their federal constitutional rights.”[33] Again, Marsh
One was satisfied--whichsatisfied—which should
have been enough to clear the state action hurdle and bring the merits of the
First Amendment challenge before the court--butcourt—but the court applied Marsh Two to quash the argument at the
state action threshold.
Federal court opinions reveal Marsh One/Marsh Two confusion as well.
In Radich v. Goode,[34]
the Third Circuit dismissed the possibility that arrests for defiant trespass
could violate abortion protestors’ First Amendment rights: “The first and
fourteenth amendments . . . do not prevent an individual from restricting the
exercise of free speech on private property. . . . Private property has been
treated as public property for first amendment purposes only when such property
has all of the characteristics of a
town.”[35] The Court thus mistakenly applied the Marsh Two state action test in a context
in which the Marsh One state action
test was satisfied. The result suggests
(incorrectly, as the next section of this essay makes clear) that the First
Amendment does not operate at all in the private property context, even when
the state action requirement is otherwise satisfied.
The D.C. Circuit went so far as to reject a
First Amendment challenge to a
congressional statute on state action grounds, because the statute merely
permitted private cable operators to
refuse to air programs that they had previously been required by law to carry
on a common
carriernondiscriminatory
basis.[36] Ignoring the state action inherent in the
statute itself, the court insisted that there was no state action unless the
cable operators could themselves be classified as state actors--accordingactors—according to,
inter alia, the exclusive public function test that grew out of Marsh Two.[37] Reversing in part, Justice Breyer wrote for
a plurality in Denver Area Educational
Telecommunications Consortium v. FCC,[38]
that “the First Amendment, the terms of which apply to governmental action,
ordinarily does not itself throw into constitutional doubt the decisions of
private citizens to permit, or to restrict, speech.”[39] But he flatly rejected the circuit court’s
conclusion that a statute that
permits private censorship does not embody state action: “[The circuit court] could not have meant
that phrase [state action] literally, for, of course, petitioners attack a
congressional statute.”[40]
The kind of
Marsh One/Marsh Two confusion
evident in these cases is entirely understandable given the opacity of Marsh and the subsequent shopping mall
cases,[41]
and may often be of no practical consequence.
Clearing the state action threshold is merely the first step in an
uphill battle for speakers challenging facially neutral laws that restrict
speech on listeners’ property. Other
courts, under circumstances similar to those described above, correctly found
state action but then easily concluded that the incidental speech restrictions
of the laws being enforced were justifiable.[42] By explaining the substantive First
Amendment analysis that applies in these confusing cases, the next sections
will clarify when the Marsh One/Marsh Two distinction does matter.
Marsh One/Marsh Two confusion prevents courts from recognizing state action
and therefore obscures what may be the more profound lesson of Marsh:
that generally applicable laws protecting private property sometimes run
afoul of the First Amendment. This
substantive lesson—substantive in that it deals with the merits of the First
Amendment question, not the state action threshold—has two facets. One is that the First Amendment operates
even when the place where the speech is restricted is private property
belonging to someone other than the speaker.
The other is that the First Amendment operates even when the law being
applied, like Alabama’s law against trespass, does not appear to target speech
at all but is, as the Court puts it, a generally applicable law that only incidentally
impacts speech. Recent Supreme Court
cases demonstrate that the substantive lesson of Marsh One has not been cabined as closely as the state action
holding of Marsh Two.
1. Private property and the First Amendment
The Court has shown special solicitude for a
speaker’s right to express himself on his own property--whereproperty—where both free
expression and property interests are in his favor.[43] For example, in City of Ladue v. Gilleo,[44]
the Court invalidated a municipal ordinance that prohibited most residential
signs, noting that “[a] special respect for individual liberty in the home has
long been part of our culture and our law; that principle has special resonance
when the government seeks to constrain a person’s ability to speak there.”[45]
The Court has also been especially
protective of speech in “public fora"--publicfora”—public property of the
type “historically associated with the free exercise of expressive activities,
such as streets, sidewalks, and parks,”[46]
or property that the government has chosen to dedicate to expressive activity.[47]
Speech restrictions tend to fair better when
they operate vis a visinvoluntary listeners’ property--atproperty—at least where
the state can invoke its strong interest in protecting residents’ homes and
privacy.[48] But Marsh
demonstrates that private property interests are not determinative. And even in the residential context the
government does not always prevail; the Supreme Court has invalidated several
municipal restrictions on front stoop handbilling and solicitation that “unduly
intrude[d] upon the rights of free speech.”[49] In Martin
v. City of Struthers,[50]
the Supreme Court noted that the city’s purported interest in preventing crime
and insulating residents from unwanted messages could have been served by less
restrictive means, and that the anti-handbilling ordinance at issue swept in
speech that a homeowner might be happy to receive. The court concluded that “stringent prohibition can serve no
purpose but that forbidden by the Constitution, the naked restriction of the
dissemination of ideas.”[51]
The Supreme Court has occasionally questioned
the holding in Martin,[52]
but it continues for the most part to treat the case as good law and has
repeatedly applied First Amendment scrutiny to restrictions on door-to-door
solicitation and hand-billing.[53] Furthermore, Justice Breyer’s recent
plurality opinion in Denver Area
Educational Telecommunications Consortium v. FCC,[54] belies the
notion (espoused by some who question the continued validity of Martin and Marsh) that the First Amendment does not operate at all vis a vis
private property.[55] The opinion explains that a statute that permitted cable
operators to restrict indecent programming on channels that had previously been
subject to common carrier-like obligations was
subject to First Amendment scrutiny (which it ultimately survived) although the
statute merely allowed private property owners to exclude speech that they did
not wish to carry.[56] Justice Breyer did not premise this scrutiny
on a determination that the private property was a public forum, “dedicated to
public use,” or any sort of quasi-public property. ItHe merely balanced the government’s
interests—including accommodation of the interests of the private property
owners (the cable operators) in controlling the content carried on their
networks—against the restriction on speech.[57] This despite Justice Thomas’ argument in
dissent that the petitioners had no
First Amendment interest in speaking via the networks of the private cable
operators.[58]
In sum, when the government restricts
speech—via statute or enforcement of common law rules—that restriction is
subject to First Amendment scrutiny even if the restriction operates to
insulate private property.
2.
Incidental Restrictions on Free Expression
The Supreme Court is uncertain how to treat
generally applicable laws that purport to regulate something other than
speech. It sometimes scrutinizes such
laws under a standard explained by the Court in United States v. O’Brien and reiterated more recently in, inter
alia, United States v. Albertini:
Application
of a facially neutral regulation that incidentally burdens speech satisfies the
First Amendment if it “furthers an important or substantial governmental
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.” [59]
But
in its most explicit recent statement on the topic the Court cited conflicting
cases and concluded that “the enforcement of a generally applicable law may or may not be subject to heightened
scrutiny under the First Amendment.”[60] In light of the Court’s own uncertainty, it
is impossible confidently to identify characteristics that lead to First
Amendment scrutiny of generally applicable laws. But the cases do offer some clues, many of which lead back to Marsh.
In
Arcara v. Cloud Books[61]
the Court articulated a rule purporting to distinguish incidental impact cases
that trigger First Amendment scrutiny from those that do not:
[W]e
have not traditionally subjected every criminal and civil sanction imposed
through legal process to . . . scrutiny simply because each particular remedy
will have some effect on the First Amendment activities of those subject to
sanction. Rather, we have subjected
such restrictions to scrutiny only where it was conduct with a significant
expressive element that drew the legal remedy in the first place . . . or where
a statute based on a nonexpressive activity has the inevitable effect of
singling out those engaged in expressive activity.[62]
This
rule does not explain at least one subsequent case, Cohen v. Cowles Media Co.,[63]
in which the Court refused to apply any First Amendment scrutiny to the
challenged application of state promissory estoppel law to a newspaper’s
publication of the name of a confidential source—even though it was expressive activity--publicationactivity (publication of the
informant’s name--thatname) that triggered the legal remedy.[64] But the Court seems consistently to apply
First Amendment scrutiny where, as in Marsh,
the sanction was triggered by expressive activity and the non-speech related goal of the regulation does not appear
to have been directly implicated.
Specifically, in Marsh it was
not clear that the general interests served by trespass law (protection of
physical property and privacy) were implicated where a property owner invited
members of the public to use its streets and sidewalks for transportation and commerce. As the Marsh
Court put it, “[t]he more an owner, for his advantage, opens up his property
for use by the public in general, the more do his rights become circumscribed
by the statutory and constitutional rights of those who use it.”[65]
The post-Marsh
shopping mall cases clarify that opening up one’s property for public use does
not alone make the property owner a government actor subject to constitutional
attack. But some of the Court’s recent
incidental burden cases suggest that this distinction, between cases in which
the non-speech-related interests served by a generally applicable law are
implicated and those in which they are not, still has force.
For example, one of the recent cases in which
the Court did subject a generally applicable law to First Amendment scrutiny is
United States v. Albertini.[66] Albertini was convicted for reentering a
military base without written permission after having been barred from reentry
by the commanding officer. He had been
barred from the base in 1972 after entering the base and destroying secret Air
Force documents. The reentry for which
he was convicted occurred in 1981, during the base’s annual open house—a day on
which members of the public were invited to view portions of the base. Albertini attended the open house with
several friends and engaged in a peaceful protest of the nuclear arms race;
they displayed a banner and handed out leaflets.[67]
Challenging his conviction, Albertini argued
that his peaceful demonstration during an open house did not implicate the
security concerns ostensibly promoted by the reentry ban—especially on a day
when the base officials had invited members of the public and assumed whatever
security risk they might pose.[68] The Court ultimately upheld Albertini’s
conviction, but only after subjecting it to First Amendment scrutiny[69]
and determining that a per se rule promoted a substantial government interest
even if an exception in Albertini’s case would not have threatened the base’s
security.[70]
This apparent concern with rules that needlessly impose an incidental burden
on speech could explain Barnes v. Glen
Theatre, Inc.[71] as
well. There the challenged Indiana
law—a ban on public nudity—did not target speech. Yet Justice Rhenquist’s plurality opinion rejected Justice
Scalia’s argument that the law should therefore not be subjected to any First
Amendment test.[72] It upheld the law in the face of a First
Amendment challenge brought by proprietors and employees of a bar and theater
that featured nude dancing—but only after applying O’Brien-style intermediate scrutiny. One reason may be the possibility, raised by the dissent, that:
The
purpose of forbidding people to appear nude in parks, beaches, hot dog stands,
and like public places is to protect others from offense. But that could not possibly be the purpose
of preventing nude dancing in theaters and barrooms since the viewers are
exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts
is to protect the viewers from what the State believes is the harmful message
that nude dancing communicates.[73]
The Supreme Court plurality ultimately
disagreed with this analysis—concluding that the law, even as applied, served a
non-speech-related interest in protecting “morals and public order.”[74] But, perhaps recognizing that the existence
of a non-speech-related justification was the closest question in the case, the
Court refused to adopt Justice Scalia’s approach of preempting that question by
labeling the law a generally applicable rule entirely outside of the First
Amendment’s protection. The Court
recently rejected the Scalia no-scrutiny view again in Erie v. Pap’s A.M.[75]
The Supreme Court’s most recent opinions in
incidental restriction cases hardly fit together into a coherent whole.[76] But they do establish that Marsh One cases are not as futile as Marsh Two cases: The Supreme Court is almost never willing to
subject private actors to Constitutional scrutiny by analogy to Marsh; but it is willing to scrutinize
laws that restrict speech that invades private property; and it is also sometimes willing to scrutinize
generally applicable laws that incidentally burden speech. One factor that appears to trigger the later
type of scrutiny—a factor that was present in Albertini, Barnes, and Marsh itself—is the possibility that, as
applied to a particular expressive activity, the concerns that motivate the
general application of the law are not implicated. concern--it
D.
From Front Stoop to Server Space
The first two sections of this paper argued
that Marsh has two district readings,
and that confusion between the two leads some courts to stop at the state
action threshold when they should not.
The third section demonstrated that, once the state action inherent in
common law actions is recognized, the First Amendment can be implicated—as it
was in Marsh—even by
generally-applicable laws that burden speech conducted on a listener’s property--whereproperty. Courts that mistakenly get stuck at the
state action threshold fail altogether to apply that First Amendment
scrutiny. This section will argue that
confusion over the state action lesson of Marsh—and
the resulting lack of First Amendment analysis—is increasingly problematic as
generally-applicable laws are invoked to control Internet speech.
Overt, content-based statutory restrictions on
Internet speech have met with public opposition and judicial skepticism. Notably, most of the Communications Decency
Act of 1996 (“CDA”) was declared unconstitutional following a year of intense debate
and protest.[77] The CDA’s successor, the Child Online
Protection Act (“COPA”),
was recently enjoined on First Amendment grounds.[78] Several state statutes have faired no
better.[79] While these new, Internet-specific
restrictions have had little practical impact,hoary common law
torts have been brushed off andsuccessfully wielded against bothersome
speech in a number of recent cases.[80] In particular, owners of email servers have
brought actions for trespass to chattels against senders of unsolicited email
messages. The courts in which these
actions have arisen have fallen into the Marsh
muddle. For example, in Compuserve v. Cyberpromotions[81]
the defendant raised a First Amendment defense to threatened judicial
enforcement of state trespass to chattels law; but the federal district court
held that there was no state action and the First Amendment did not apply.[82] The Intel
v. Hamidi[83] court was
skeptical about the existence of state action, and summarily concluded that the
First Amendment did not apply because the email system at issue was not a
public forum—failing to recognize the second lesson of Marsh.[84] Neither case grappled with the substantive
First Amendment arguments raised by the defendants. In the real world context—where application of trespass law is
often justified by privacy concerns, and sidewalks and street corners typically
provide an alternative avenue for speech excluded from private property—those
arguments may be futile in any event.
But as the privately-controlled avenues that lead to Internet listeners
look increasingly like the privately-controlled sidewalks in Marsh, the consequences of misreading Marsh are growing.
1. The Early Examples: Intel
and Compuserve
The
Restatement of Torts defines trespass to chattels as “dispossessing another of
the chattel, or using or intermeddling with a chattel in the possession of
another.”[85] Trespass to chattels is only actionable if:
(a) [the trespasser]
dispossesses the other of the chattel, or
(b) the chattel is
impaired as to its condition, quality, or value, or
(c) the possessor is
deprived of the use of the chattel for a substantial time, or
(d) bodily harm is caused
to the possessor, or harm is caused to some person or thing in which the
possessor has a legally protected interest. [86]
The theory of the
plaintiffs in Compuserve and Intel was that the defendants were
dumping unauthorized messages onto the plaintiffs’ email servers and thereby
making the computers less valuable--anvaluable—an actionable trespass to chattels,
they argued, under 218(b) or an equivalent definition. Compuserve alleged that CyberPromotions’ mass mailings strained its server
storage and processing capacities, prompted customer complaints, and led some
subscribers to terminate their Compuserve accounts.[87] Intel alleged that as a result of Hamidi’s
messages, it “incurred expenses attempting to block or purge the unauthorized,
unrequested and unwanted messages from [its] computer system.”[88] Intel elaborated that “[t]hese e-mails by
HAMIDI are uninvited, disruptive and adversely affect employee productivity. .
. . Employees contact computer systems support personnel questioning why they
are receiving unrequested e-mails and asking to be blocked from further
e-mails. . . . Computer systems support personnel spend significant amounts of
time attempting to block or remove HAMIDI’s unauthorized and unrequested
e-mails from the computer systems.”[89]
In contrast to Compuserve, Intel did not allege
that Hamidi sent so many messages that its system was overloaded by their sheer
volume. And, as Intel allowed its
employees to use the email system for personal purposes, the company had little
claim to an interest in exclusive control over the system. Rather, the focus of Intel’s complaint was
that the content of Hamidi’s messages
was unwelcome, and that the company therefore had to go to the trouble of
getting rid of those messages and explaining them to Intel employees.[90]
The fact that the court’s application of
trespass to chattels law was triggered by the effect of Hamidi’s expression and not by the physical
impact of his conduct suggests that the state’s non-speech related interests
may not have been implicated. As
discussed above, Albertini, Barnes, and Marsh suggest that these are the circumstances in which it is
important to apply First Amendment scrutiny even to a law that does not appear
to target speech.
The application of trespass to chattels in a
case like Intel might survive First Amendment scrutiny even if
Hamidi’s trespass did not directly implicate the state’s non-speech-related
interest in protecting private property from physical damage. In several cases—including, most recently, Hill v.
Colorado[91]—the Supreme
Court has said that sometimes a per se rule is justified even when, in some
instances, it prohibits speech that in fact would cause no cognizable
harm. Hill was a facial challenge to a Colorado statute that makes it
unlawful to “knowingly approach” within eight feet of another person, without
that person’s consent, “for the purpose of passing a leaflet or handbill to,
displaying a sign to, or engaging in oral protest, education, or counseling
with such other person,” where the communication occurs within 100 feet of the
entrance to any health care facility.[92] The Court explained that the difficulty of
characterizing individual speech incidents in front of health care facilities
as harassing or not harassing justified a per se rule forbidding speakers from
purposefully approaching within eight feet of potential listeners—even though
“[w]e recognize that by doing so, it will sometimes inhibit a demonstrator
whose approach in fact would have proved harmless.”[93]
But Intel did not invoke a per se rule against
unsolicited email. It did not appeal to
any legislative determination (of the sort at issue in Hill and Albertini) that
a prophylactic approach was justified.
The common law rule against trespass to chattels is not a strict
liability rule. In each case the judge
has to make a fact-based determination of actual harm. In this common law case-by-case context, it
is hard to see how the state’s non-speech-related interest in preventing
physical harm to private property is served by sweeping in harm that depends entirely on the content of the speech.[94]
There is a slightly different state interest that might
be invoked to justify this novel application of trespass to chattels: promoting the editorial freedom of corporate speakers. The Court has recognized the “right to edit” as an interest protected by
the First Amendment.[95] It has sometimes alluded to this interest to
defeat First Amendment-based claims to a right of access to the media,[96]
and as an interest that government may legitimately promote—within
constitutional limits.[97]
But this is a tricky sort of interest for the government to promote
in this context. For one thing, it is
not clear that the interest is implicated when an Internet intermediary like
Intel or Compuserve
brings an action to exclude unwanted speech from its property. Both Intel and Compuserve hold themselves out as conduits
for the speech of others: Intel
authorizes employees to use its email system for personal communications and Compuserve provides that service for a
charge to its subscribers. Both
companies are obviously interested in editing content where it serves
their purposes to do so, but neither exercises the kind of control that would
lead recipients to attribute the content of unwanted email messages to
them. In Pruneyard Shopping Center v.
Robins,[98]
the Supreme Court held that the state of California did not violate the U.S.
Constitution by requiring that a privately-owned shopping center permit
individuals to solicit petition signatures on the center’s property. The Court distinguished its compelled speech
cases by explaining “the
shopping center by choice of its owner is not limited to the personal use of
[the owner]. It is instead a business
establishment that is open to the public to come and go as they please. The views expressed by members of the public
in passing out pamphlets or seeking signatures for a petition thus will not
likely be identified with those of the owner.”[99] The Court has since made clear that even a “conduit” is a speaker for purposes of
the First Amendment.[100]
But it nonetheless looks to the would-be editor’s conduct—e.g. whether it generally pre-approves or
otherwise screens the speech that occurs on its property—to determine the
strength of his First Amendment interests.[101]
The Court has suggested that the strength of a claim to editorial discretion
turns on another consideration as well:
the extent of the would-be editor’s power to block competing sources of
information. The Court explained this
consideration in Turner, when it
distinguished cable television from newspapers:
Although a daily newspaper and
a cable operator both may enjoy monopoly status in a given locale, the cable
operator exercises far greater control over access to the relevant medium. A daily newspaper, no matter how secure its
local monopoly, does not possess the power to obstruct readers’ access to other competing
publications—whether they be weekly local newspapers, or daily newspapers
published in other cities. Thus, when a
newspaper asserts exclusive control over its own news copy, it does not thereby
prevent other newspaper from being distributed to willing recipients in the same
local.
The same is not true of cable.
When an individual subscribes to cable, the physical connection between
the television set and the cable network gives the cable operator bottleneck,
or gatekeeper control over most (if not all) of the television programming that
is channeled into the subscriber’s home.
Hence, simply by virtue of its ownership of the essential pathway for
cable speech, a cable operator can prevent its subscribers from obtaining
access to programming is chooses to exclude.
A cable operator, unlike speakers in other media, can thus silence the
voice of competing speakers with a mere flick of the switch.[102]
Based in part on the strength
of the cable operator’s
potential censorial power, the Turner
Court upheld a statutory requirement that cable operators carry the signals of
local broadcast stations despite the cable operators’ claim that the
requirement violated their First
Amendment right to edit.
Turner
suggests that while property owners have an interest in controlling the speech
that occurs on or via their property—an interest that is strongest when the
property owners purport to exercise editorial discretion that renders the
speech attributable to them—that interest can be outweighed by a would-be
speaker’s free expression interests when the speaker would otherwise be
silenced. This logic brings us back to Marsh.
Private control over “streets, alleys, sewers, stores, residences, and
everything else that goes to make a town”[103]
may be necessary to subject a private forum owner to direct constitutional
scrutiny under the Court’s interpretation of Marsh Two. But it was Gulf
Shipbuilding’s control of sidewalks—not sewers—that made the state’s trespass prosecution
problematic.
Both Intel and Compuserve control access to
communities of potential listeners. At
least in the Intel case, the speaker was trying to communicate specifically to
that audience—bound together for purposes of communication not by their
physical location in any one geographic place, but by their use of Intel’s
email servers. When a speaker is
targeting the employees of a multi-national company, with employees who work in
far-flung offices, at home, from the road, it is difficult to imagine an
alternative that even approaches the effectiveness of email.
Compuserve
and (especially) Intel should
have been close cases—the reasoning, and perhaps the outcome, of which would
have benefited from a clearer understanding of Marsh and the recognition that even when the prerequisites for Marsh Two state action are absent, Marsh teaches us that the First
Amendment might trump competing property interests. The Supreme Court seldom invalidates a generally-applicable
content-neutral statute or common law rule on First Amendment grounds. But the correct outcome of these cases is
surely not controlled by the absence of sewers in cyberspace.
2. The Self-Interested Sidewalk
The importance of recognizing and properly
separating the lessons of Marsh will
be of growing importance as companies vie for more comprehensive control over
the architecture of Internet speech.
ISPs—the gatekeepers
for the Internet content that reaches their subscribers—increasingly have the potential
to capture monopoly power within geographic locations. Plain old telephone service is subject to
common carrier obligations—ISPs offering dial-up service can thus compete for
the business of any potential subscriber.
But the FCC has not subjected all high speed broadband networks to those obligations or
conditioned approval of massive mergers involving broadband networks and ISPs
on open access,[104]
although at least one federal court of appeals has held that only the FCC (and not states and
localities) has the jurisdiction to do so.[105]
One fear regarding the architecture of broadband access is that increasingly powerful ISPs
who face only limited competition will prevent their subscribers from easily accessing Internet content
that competes with content offered by the ISP or its corporate affiliates, or
content that is critical of them. These fears are not far-fetched. America Online and Time Warner, now
merged, have both been accused of competitive abuses in their respective
markets. Companies that make software for Internet content filtering have been
accused of designing that software to block their critics[106]—those
companies have invoked property law in an attempt to ensure that their blocking
practices remain secret.[107]
It is difficult to imagine a legitimate state
interest served by enforcing the secret speech restrictions of intermediaries
seeking to insulate their growing market power. And adequate alternative avenues are increasingly unlikely as
single companies vie to deliver bundled packages of digital media. But courts will not even consider these
factors so long as they keep inspecting sewers instead of sidewalks.
III. Conclusion
The Intel
and Hamidi courts knew that Marsh mattered. But they examined the case from the wrong
angle. They concluded that the
demanding Marsh Two state action
theory was not satisfied but ignored both Marsh’s
alternative theory of state action and, more importantly, the lesson of Marsh and its progeny about the
substantive First Amendment problems raised by application of property law to
enforce speech restrictions imposed by property owners powerful enough to cut
off alternative avenues of communication.
As Internet intermediaries continue to consolidate control over the
architecture of Internet speech, courts need to be wary of the Marsh muddle.
[1] For the most part, constitutional
limitations apply by their terms only to the federal or state governments (the
later via the Fourteenth Amendment), not to private actors. But
see U.S. Const. Am. XIII;
United States v. Kozminski, 497 U.S. 931, 942 (1988).
[2] See, e.g., Flagg Bros. Inc. v. Brooks, 436
U.S. 149, 158-60 (1978); United Auto Workers v. Gaston Festivals, Inc., 43 F.3d
902 (4th Cir. 1995); Cable Investments, Inc. v. Woolley, 867 F.2d 151, 161-62
(3d Cir. 1989).
[3] Other observers have noted this irony. See, e.g., Laurence H. Tribe,
American Constitutional Law § 18-5, 1708 (2nd ed. 1988).
[4] Marsh,
326 U.S. 501, 504 (1946).
[5] Id.
at 504-05.
[6] Id.
at 504.
[7] Id.
[8] See,
e.g., Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 639 (1991); Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974); Evans v. Newton, 382 U.S. 296, 299 (1966).
[9] Marsh,
326 U.S. at 501 (emphasis added).
[10] See,
e.g., Stanley v. Georgia, 394 U.S.
557 (1969) (reversing conviction for knowing possession of obscene matter); see also Bell v. State of Maryland, 378
U.S. 226, 257 (1964) (Douglas, J., concurring) (finding state action where
Maryland enforced segregation “with her police; her prosecutors, and her
courts,” and referring to “hundreds of cases” in which judicial action
established state action); cf.
Steffel v. Thompson, 415 U.S. 452 (1974) (mere threat of prosecution may be
subject to constitutional scrutiny).
[11] 334 U.S. 1 (1948).
[12] Id. at 19.
[13] Id. at 20.
[14] 376 U.S. 254 (1964).
[15] Technically, the defendant invoked the
Fourteenth Amendment, through which the First Amendment applies to states. See,
e.g., Fiske v. Kansas, 274 U.S. 380
(1927).
[16] Sullivan, 376 U.S. at 265 (1964) (internal citations omitted).
[17] Cohen v. Cowles Media Co., 501 U.S. 663,
667 (1991) (First Amendment defense to contract action); see also Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (First
Amendment defense to intentional infliction of emotional distress action);
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986) (First
Amendment defense to libel action); NAACP v. Claiborne Hardware Co., 458 U.S.
886, n. 51 (1982) (First Amendment defense to tort action); see also United States v. Gilbert, 920
F.2d 878, 883 (11th Cir. 1991) (“It is axiomatic that any statute or court order that restricts [the
defendant’s] activity must be consistent with the First Amendment.”); Ronald J.
Krotoszynski, Back to the Briarpatch: An
Argument in Favor of Constitutional Meta-Analysis in State Action
Determinations, 94 Mich. L. Rev.
302, 315-16 & n. 63 (1995) (collecting cases and interpreting Sullivan and Shelley as establishing that “if a party to a suit is challenging
the constitutionality of a state or federal law, state action is present, even
if a private party, rather than the state,is attempting to enforce the
particular law”); Developments in the
Law--The Law of Cyberspace, 112 Harv.
L. Rev. 1577, 1627 nn. 110 & 112 (collecting cases).
[18] This is the basis for
Herbert Wechsler’s famous criticism of the Shelley
decision. He does not question the
state action conclusion; indeed, he says “[t]hat the action of the state court
is action of the state . . . is, of course, entirely obvious.” Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 29 (1959). But Wechsler does question whether “the
state may properly be charged with the
discrimination when it does no more than give effect to an agreement that
the individual involved is, by hypothesis, entirely free to make.” Id;
see also Laurence H. Tribe, Constitutional
Choices 259 (1985) (“The problem is not seeing that state courts are
state actors--that,actors—that, surely, is
obvious. The problem is perceiving how
the Missouri courts could violate the Constitution by ‘merely’ enforcing a
private system that citizens had imposed on themselves.”); cf. Frank I.
Goodman, “Professor Brest on State Action and Liberal Theory,” 130 Pa. L. Rev. 1331, 1338 (1982) (“[T]he
fact that state law confers the right to exclude the world from one’s property
does not convert the property owner’s exercise of that right, even in a
racially discriminatory manner, into state action, though the statutory rule
that creates the right, and the judicial or executive enforcement of it,
clearly is state action.”).
[19] See United States v. O’Brien, 391 U.S. 367, 376-77 (1968)
(articulating test applicable to government regulation of conduct that
incidentally burdens speech).
[20] Marsh,
326 U.S. at 507.
[21] This reading of Marsh is one of the sources of the “exclusive public function”
principle of state action. As the
Supreme Court explained in Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 352 (1974), in which it held that a
regulated utility was not a state actor: “[w]e have, of course, found state
action present in the exercise by a private entity of powers traditionally
exclusively reserved to the State” (citing Marsh).
[22] See,
e.g., Flagg Bros. Inc. v. Brooks, 436
U.S. 149, 158-60 (1978) (applying Marsh
analysis to § 1983 claim against private actor).
[23] Craig Bradley makes a similar distinction
but concludes that only on the second reading could the Marsh plaintiffs
make out a constitutional violation. See
Craig Bradley, Untying the State Action
Knot, 7 J. Contemp. Legal Issues
223, 229-30 (1996). I disagree with his assertion that the state
rule that a person cannot distribute unwanted handbills on private property is
“patently constitutional,” id. at
230. See Martin v. City of Struthers, 319 U.S. 141, 147-49 (1943); supra text accompanying notes ___; see also Arcara v. Cloud Books, 478 U.S.
697, 706 n. 3 (1986) (approving characterization of Marsh as a case striking down a generally applicable statute that
unduly penalized speech); Tribe, supra n. ___ (American Constitutional
Law), § 12-25, at 999; Harold W. Horowitz, The
Misleading Search for “State Action” Under the Fourteenth Amendment, 30 S. Cal. L.Rev. 208, 217 (1957) (“Is it
necessary to attempt to equate the company town with the state, either as an
agency of the state or as performing state functions, in order to reach the
result reached by the Court? It would
seem not.” ).
[24] See, e.g., Fred Meyer,
Inc. v. Casey, 67 F.2d 1412 (9th Cir. 1995); United Auto Workers v. Gaston
Festivals, Inc., 43 F.3d 902 (4th Cir. 1995); Cape Code Nursing Home Council v.
Rambling Rose Rest Home, 667 F.2d 238 (1st Cir. 1991); Cable Investments, Inc.
v. Wolley, 867 F.2d 151 (3d Cir. 1989); Illinois Migrant Council v. Campbell
Soup Co., 574 F.2d 374 (7th Cir. 1978); Associacion de Trabajadores Agricolas
de Puerto Rico v. Green Giant Co., 518 F.2d 130 (3d. Cir. 1975); Citizens to
End Animal Suffering and Exploitation, Inc. v. Faneuil Hall Marketplace, Inc.,
745 F. Supp. 65 (D. Mass. 1990).
[25] 407 U.S. 551 (1972).
[26] 424 U.S. 507 (1976).
[27] Hudgens,
424 U.S. at 519 (quoting Lloyd, 407
U.S. at 568-69).
[28] Amalgamated Food Employees Union v. Logan
Valley Plaza, 391 U.S. 308, 330-31 (1968) (Black, J., dissenting), quoted in Hudgens, 424 U.S. at 513; Lloyd,
407 U.S. at 563.
It is not entirely clear from the Lloyd and Hudgens opinions that they were decided on the basis of the state
action doctrine. See, e.g., Brian Stryker
Weinstein, In Defense of Jeffrey Wigand:
A First Amendment Challenge to the Enforcement of Employee Confidentiality
Agreements Against Whistleblowers, 49 S.C.
L. Rev. 129, 136-37 (1997) (interpreting cases as resting on substantive
First Amendment grounds--i.e., even assuming state action, the speakers had no
right to speak on the mall owners’ private property). But the Court has since implied that they were state action
decisions; see, e.g., Hurley v. Irish-American Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 566 (1995); Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 159
(1978); see also, e.g., Pleasant v. Lovell, 876 F.2d 787,
796 n.1 (10th Cir. 1989); Cable Investments, Inc. v. Woolley, 867 F.2d 151, 162
(3d Cir. 1989); Hoyt v. St. Mary’s Rehabilitation Center, 711 F.2d 864, 865
(8th Cir. 1983); Cape Cod Nursing Home Council v. Rambling Rose Rest Home, 667
F.2d 238, 241 (1st Cir. 1981); Tribe, supra
note ___, at s. 18-5. But see
International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 698
(1992) (Kennedy, J., concurring) (apparently interpreting Hudgens as public forum case); Kreisner v. City of San Diego, 1
F.3d 775, 786 (9th Cir. 1993) (similar); City of Watseka v. Illinois Public
Action Council, 796 F.2d 1547, 1569-70 (7th Cir. 1986) (Coffey, J., dissenting)
(similar).
[29] See
Bradley, supra note ___, at 232
(discussing other varieties of state action confusion and conflation).
[30] 589 N.W.2d 793 (Minn.
1999).
[31] Fardig v. Municipality of
Anchorage, 785 P. 2d 911, 914 (Alaska 1990).
[32] 597 N.E.2d 208 (Ill. App.
Ct. 1992).
[33] Id. at 213-14 (emphasis added).
[34] 886 F.2d 1391 (1989).
[35] Id. at 1398.
[36] Alliance for Community Media v. FCC, 56
F.3d 105 (D.C. Cir. 1995).
[37] See
id. at 113-21; see also Gannett
Satellite Information Network v. Berger, 894 F.2d 61 (3d Cir. 1990) (applying
similar analysis).
[38] 518 U.S. 727 (1996).
[39] Id.
at 737.
[40] Id.
[41] CITE AND DISTINGUISH SCHAUER.Indeed, at least one
commentator reads Hudgens v. NLRB as
implicitly rejecting the Marsh One
theory of state action. See Frederick F. Schauer, Hudgens v. NLRB and the Problem of State
Action in First Amendment Adjudication, 61 Minn. L. Rev. 433, 444-51 (1977).
[42] See, e.g., Cincinnati v. Thompson, 643 N.E.2d 1157 (Ohio Ct. App. 1994);
Gibbons v. State of Texas, 775 S.W.2d 790 (Tx. 1989).
[43] See generally
Mark Cordes, Property and the First
Amendment, 31 U. Richmond L. Rev. 1, 52-63 (1997).
[44] 512 U.S. 43 (1994).
[45] Id.
at 58.
[46] United States v. Grace, 461 U.S. 171, 177
(1983) (sidewalk outside Supreme Court); see
also Hague v. CIO, 307 U.S. 496, 515 (1939); see generally Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983) (collecting cases).
In contrast, where the Court determines that
government property has not been dedicated to First Amendment activity at all,
it examines regulation of speech activity there only for reasonableness. See
International Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 689-85
(1992) (airport terminal); United States v. Kokinda, 497 U.S. 720, 726-31
(1990) (post office sidewalk); Perry,
460 U.S. at 46-50 (school mailboxes); U.S. Postal Serv. v. Greenburgh Civic
Ass’ns, 453 U.S. 114, 128-34 (1981) (mailboxes); Lehman v. City of Shaker
Heights, 418 U.S. 298, 302-04 (1974) (city bus advertising space).
[47] See
Perry, 460 U.S. at 45-46 (collecting cases).
[48] See
FCC v. Pacifica Found., 438 U.S. 726, 731 n. 2 (1978); Rowan v. U.S. Post
Office Dep’t, 397 U.S. 728, 737 (1970).
[49] Schaumburg v. Citizens for Better Environ.,
444 U.S. 620, 633 (1980) (citing Hynes v. Mayor of Oradell, 425 U.S. 610, 616
(1976)).
[50] 319 U.S. 141 (1943).
[51] Id.
at 147.
[52] See
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460
U.S. 575, 587 n. 9 (1983).
[53] See
Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 633 (1980); Hynes v.
Mayor of Oradell, 425 U.S. 610, 616 (1976).
[54] 518 U.S. 727 (1996).
[55] See, e.g.,
City of Watseka v. Illinois Public Action Council, 796 F.2d 1547, 1568-70 (7th
Cir. 1986) (Coffey, J., dissenting); see
also Cornelius v. NAACP Legal Defense & Education Fund, Inc., 472 U.S.
788, 801 (1985) (“[A]s an initial matter a speaker must seek access to public
property or to private property dedicated to public use to evoke First
Amendment concerns . . . .”); Minneapolis
Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 587
n. 9 (1983) (questioning continued validity of Martin). Note that Justice
Breyer’s plurality opinion and Justice Thomas’ dissenting opinion in Denver Area Educational Telecommunications
Consortium, Inc. v. FCC, 518 U.S.
727 (1996), appear to interpret the cited language from Cornelius as defining the outer bounds of the public forum
doctrine, not the outer bounds of the First Amendment. See
Denver at ___.
[56] Denver
at ___.
[57] Denver
at ___.
[58] Denver
at ___.
[59] United States v.
Albertini, 472 U.S. 675, 687-88 (1985) (quoting United States v. O’Brien, 391 U.S. 367, 377 (1968)); cf. Employment Division, Dept. of Human
Resources of Oregon v. Smith, 494 U. S. 872, 901 (1990) (O’Connor, J.,
concurring in judgment) (“There is nothing talismanic about neutral laws of general
applicability . . . . “).
[60] Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 640 (1994) (emphasis added); see
also Rodney A. Smolla, “The Free Exercise of Religion After the Fall: The Case for Intermediate Scrutiny,” 39 Wm. & Mary L. Rev. 925, 939-40
& n. 80 (noting tension and arguing that O’Brien test should have applied in Cohen); Srikanth Srinivasa, “Incidental Restrictions of Speech and
the First Amendment,” 12 Const. Comment.
401 (1995) (attempting to reconcile incidental impact decisions).
[61] 478 U.S. 697 (1986).
[62] Id.
at 706-07; see also Laurence H.
Tribe, supra note ___, § 12-7, at
831-32 (“When the acts that trigger a rule’s enactment and that occasion its
invocation in the case at hand are both intended to express, and understood by
their audience to express, a particular message, it is necessary to subject the
rule and its enforcement to some degree of first amendment scrutiny.”).
[63] 501 U.S. 663 (1991).
[64] See Srinivasan,
supra, at 419-20; Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 108-14 (1987).
The Court concluded simply that “generally
applicable laws do not offend the First Amendment simply because their
enforcement against the press has incidental effects on its ability to gather
and report the news.” Cohen, 501 U.S. at ___. Justice Souter, in dissent, criticized the
Court’s failure to weigh the government’s interests against the restriction of
expression. Id. At 676-79 (Souter, J., dissenting).
[65] Marsh,
326 U.S. at 506.
[67] Albertini,
at ___.
[68] Albertini,
at ___.
[69] Albertini,
at ___.
[70] Albertini,
at ___.
[71] 501 U.S. 560, 566 (1991).
[72] Barnes,
501 U.S. 572-581 (Scalia, J., concurring in judgment).
[73] Barnes,
501 U.S. at 590-91 (White, J., dissenting).
Judge
Posner’s concurring opinion below expressed the same concern. He argued not only that the Indiana statute
should be subject to First Amendment scrutiny, but that, unlike the statute
examined in Albertini and Clark v. Community for Creative Non-Violence,
U.S. 288, 293 (1984), the statute as applied should not survive that
scrutiny. He reasoned that:
[T]he harm to the policies behind
the regulations [in Albertini and Clark] was unaffected by the expressive
character of the activities affected by them.
In Clark for example, the damage
to the parks was the same whether the sleepers were camping out for fun, were
in fact homeless, or wished by sleeping in the park to make a symbolic
statement on behalf of the homeless. In
contrast, whatever interest Indiana is trying to safeguard by banning public
displays of nudity is not harmed by theatrical—perhaps not even by
nightclub—performances featuring nudity.
The harm done to public order by a performance of Salome in which Salome
ends the Dance of the Seven Veils clad only in a transparent body stoking and
therefore nude under Indiana Law . . . is not of the same order of magnitude as
the harm (in fright, disgust, or embarrassment), slight as it may be, caused by
a person who runs down the middle of a busy street stark naked or urinates in
an alley. Only in the latter cases does
the concept of public decency supply a persuasive rationale for punishment.
Miller v. South Bend, 904 F.2d 1081, 1102-03
(7th Cir. 1990) (Posner, J., concurring).
[74] Barnes,
501 U.S. at 568-70 (Rhenquist, J., plurality opinion). Justice Souter’s concurrence offered other
justifications, e.g., preventing “secondary effects” such as prostitution and
other criminal activity. Id. at 581-87 (Souter, J., concurring).
[75] 120 S. Ct. 1382 (2000).
[76] For a more comprehensive treatment of the
problem of incidental speech restrictions, see, e.g., Michael C. Dorf, Incidental Burdens on Fundamental Rights,
109 Harv. L. Rev. 1175 (1996);
Srinivasa, supra note ___.
[77] Reno v. ACLU, 512 U.S. 844 (1997).
[78] ACLU v. Reno, No. 99-1324, 2000 WL 801186
(affirming district court order issuing preliminary injunction).
[79] See,
e.g., Cyberspace Communications, Inc.
v. Engler, 55 F. Supp. 2d 737 (E.D. Mich. 1999); American Libraries Ass’n v.
Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).
[80] Cf.
Bruce P. Keller, Condemned to Repeat the
Past: The Reemergence of
Misappropriation and Other Common Law Theories of Protection for Intellectual
Property, 11 Harv. J.L. & Tech.
401 (1998).
[81] 962 F. Supp. 1015 (S.D. Ohio, 1997).
[82] Id.
at 1025-27.
[83] No. 98AS05067, 1999 WL 450944 (Cal. Super
Apr. 28, 1999) (unpublished tentative summary judgment ruling).
[84] Id.
at *2-3.
[85] Restatement
(Second) Torts § 217 (YEAR).
[86] Restatement
(Second) Torts § 218; see also Compuserve, 962 F. Supp. at 1021 (citing
Restatement); Intel, 1999 WL at *1
(defining tort as “unauthorized interference with possession of personal
property which causes injury”).
[87] Compuserve,
962 F. Supp. at 1019, 1023.
[88] Complaint, Intel v. Hamidi, available at
<http://cyber.law.harvard.edu/msvh/hamidi/complain.html>.
[89] Memorandum in Support of Motion for Summary
Judgment, Intel v. Hamidi, available at
<http://cyber.law.harvard.edu/msvh/hamidi/sjmemo.html>.
[90] Intel did not object to all outside
email. Hamidi’s opposition to Intel’s
summary judgment motion pointed to admissions by Intel that its employees were
permitted to send and receive personal email messages. See Memorandum in
Opposition to Motion for Summary Judgment, Intel v. Hamidi, No. 98AS05067,
(Cal. Super. 1999), available at <http://cyber.law.harvard.edu/msvh/hamidi/antisjmemo.html>.
[91] No. 98-1856, 2000 WL 826733 (June 28,
2000).
[92] Colo. Rev.
Stat. 18-9-122(3) (1999); Hill,
2000 WL at *___.
[93] Hill,
2000 WL at ___; see also Albertini, ___; FTC, ____.
[94] See
generally Cantwell v. Connecticut, ___ U.S. ___ (1940).
[95] See, e.g., Turner Broad. Sys. v. FCC, 512
U.S. 622, 636 (1994); Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). But cf. Red Lion Broad.
Co. v. FCC, 395 U.S. 367 (1969).
“[T]he editorial function itself
is an aspect of ‘speech,’ and a court’s decision that a private party
. . . is a ‘censor,’ could itself interfere with
that private ‘censor’s’ freedom to speak as an editor.” Denver Area Educational Telecommunications Consortium v. FCC, 116
S. Ct. 2374, 2383 (1996) (“DATEC”) (citations omitted).
[96] See, e.g., DATEC, 116 S. Ct. at 2385-86; CBS v. Democratic Nat. Committee, 412
U.S. 94, 124-25 (1973). Compare DATEC, 116 S. Ct. at 2415 (Kenndy, J., concurring in part and
dissenting in part) (arguing that “any governmental interest in restoring operator
discretion over indecent programming on leased access channels is too minimal
to justify the law,”
in part because “the
transmission of indecent programming over leased access channels is not forced
speech of the operator” (citing Turner
and PruneYard)), with DATEC, 116 S. Ct. at
2421-22 (Thomas, J., concurring in part and dissenting in part) (contending
that Turner “recogniz[ed] the general
primacy of the cable operator’s editorial rights over the rights of programmers
and viewers”); see also Turner Broad. Sys., Inc. v. FCC
(1997) (“Turner II”) (Breyer, J., concurring in
part) (balancing First Amendment burden of cable must-carry rules with
legitimate First-Amendment-related purpose).
[97] See, e.g., Harper & Row, Publishers, Inc.
v. Nation Enterprises, 471 U.S. 539, 559 (1985) (explaining that Copyright Act
serves, inter alia, First Amendment “right not to speak”).
Professors Schauer and Tribe both suggest
that this editorial component of property ownership may justify the Court’s
rejection of shopping mall picketers’ claimed right of access in Hudgens v. NLRB. See Tribe, supra n. ___, § 12-25, at 1000; Frederick F. Schauer, Hudgens v. NLRB and the Problem of State
Action in First Amendment Adjudication, 61 Minn. L. Rev. 433, 458 n. 109 (1977).
[98] 447 U.S. 74 (1980).
[99] Pruneyard,
447 U.S. at 88.
[100] See Denver, ___; Turner, ___.
[101] See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557, 575-76 (1995).
[102] Turner Broad. Sys. v. FCC, 512 U.S. 622, 656
(citing I. De Sola Pool, Technologies of Freedom 168 (1983)).
[103] Amalgamated Food Employees Union v. Logan
Valley Plaza, 391 U.S. 308, 330-31 (1968) (Black, J., dissenting), quoted in Hudgens, 424 U.S. at 519; Lloyd, 407 U.S. at 563; see discussion infra p. 9.
[104] See In re Applications for Consent to the Transfer of
Control of Licenses and Section 214 Authorizaion from MediaOne Group, Inc.,
Transferor, to AT&T Corp., Transferee, CD Docket No. 99-251, 2000 WL 725472
(June 6, 2000). The FTC did
impose conditions on the merger, however.
See http://www.ftc.gov/opa/2000/12/aol.htm.
[105] AT&T Corp. v. Portland, No. 99-35609,
2000 WL 796708 (9th Cir. 2000).
[106] Consider the filtering techniques of
Cybersitter, a popular Internet filtering software. When I tested the software in 1998, I found that it blocked the
National Organization for Women home page; sites that alerted the public to the
fact that NOW was being blocked; Cybersitter’s most vehement critic, a student
anti-censorship organization called Peacefire; and webpages such as “The
Censorware Search Engine,” “Blocked,” “If Cybersitter Were Marketed Honestly,”
“Ban Cybersitter,” “Cybersitter—We Take
the Freedom Out of Freedom of Choice,” “Cybersitter Censored Pages” and “Why
Censorship is Making a Comeback.”
[107] See
Microsystems Software, Inc. v. Scandinavia Online AB, 98 F.Supp.2d 74 (D. Mass.
2000).