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--turning its lessons 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 is’ often invoked when
civil rights actions are brought on constitutional grounds against private
parties. The analysis typically entails determining
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.
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. 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.
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.” She was convicted by an Alabama trial court despite this defense; the state appeals and supreme courts affirmed.
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. 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.
That a criminal prosecution establishes state action is so clear as to escape mention in most cases. 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. 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.
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.
[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.
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. 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.
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
interest--the protection of private property.
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--regardless of the
application of the state law of 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.” 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. 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.
then, 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. 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.
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 and Hudgens v. NLRB, 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.” 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.”
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. Several recent state court decisions illustrate the problem.
of Minnesota v. Wicklund,
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
mall--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.” 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.
of Illinois v. Yutt,
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.” Again, Marsh
have been enough to clear the state action hurdle and bring the merits of the
First Amendment challenge before the court--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, 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.” 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
basis. 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--according to,
inter alia, the exclusive public function test that grew out of Marsh Two. Reversing in part, Justice Breyer wrote for
a plurality in Denver Area Educational
Telecommunications Consortium v. FCC,
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.” 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
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, 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. 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--where both free
expression and property interests are in his favor. For example, in City of Ladue v. Gilleo,
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.”
The Court has also been especially
protective of speech in “public fora"--public” property of the
type “historically associated with the free exercise of expressive activities,
such as streets, sidewalks, and parks,”
or property that the government has chosen to dedicate to expressive activity.
Speech restrictions tend to fair better when
they operate vis a vis
involuntary listeners’ property--at least where
the state can invoke its strong interest in protecting residents’ homes and
privacy. 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.” In Martin
v. City of Struthers,
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.”
The Supreme Court has occasionally questioned
the holding in Martin,
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. Furthermore, Justice Breyer’s recent
plurality opinion in Denver Area
Educational Telecommunications Consortium v. FCC, 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.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. 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.
It 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. This despite Justice Thomas’ argument in
dissent that the petitioners had no
First Amendment interest in speaking via the networks of the private cable
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.” 
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.” 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 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.
rule does not explain at least one subsequent case, Cohen v. Cowles Media Co.,
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--publication ( of the
informant’s name--that) triggered the legal remedy. 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.”
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. 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.
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. The Court ultimately upheld Albertini’s conviction, but only after subjecting it to First Amendment scrutiny 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.
This apparent concern with rules that needlessly impose an incidental burden on speech could explain Barnes v. Glen Theatre, Inc. 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. 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.
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.” 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.
The Supreme Court’s most recent opinions in
incidental restriction cases hardly fit together into a coherent whole. 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.
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--where. 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. The CDA’s successor, the Child Online
Protection Act (“COPA”)
was recently enjoined on First Amendment grounds. Several state statutes have faired no
better. While these new, Internet-specific
restrictions have had little practical impact,
hoary common law
torts have been brushed off and wielded against bothersome
speech in a number of recent cases. 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
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. The Intel
v. Hamidi 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. 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.” 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. 
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--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. 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.” 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.”
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.
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—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. 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.”
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.
There to justify this novel application of trespass to chattels“”s
strength of a’
’ 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” 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 — the FCC has not subjectedall or conditioned approval of massive mergers involving broadband networks and ISPs on open access, 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.
the architecture of s who face only limited competition easily that competes with content offered by the ISP or its corporate affiliates, or content that is critical of them. -and Time Warner, now merged, have both been accused of competitive abuses in their respective markets. CInternet —those companies have invoked property law in an attempt to ensure that their blocking practices remain secret.
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.
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.
 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).
 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).
 Other observers have noted this irony. See, e.g., Laurence H. Tribe, American Constitutional Law § 18-5, 1708 (2nd ed. 1988).
 Marsh, 326 U.S. 501, 504 (1946).
 Id. at 504-05.
 Id. at 504.
 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).
 Marsh, 326 U.S. at 501 (emphasis added).
 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).
 334 U.S. 1 (1948).
 Id. at 19.
 Id. at 20.
 376 U.S. 254 (1964).
 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).
 Sullivan, 376 U.S. at 265 (1964) (internal citations omitted).
 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).
 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
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.”).
 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).
 Marsh, 326 U.S. at 507.
 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).
 See, e.g., Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 158-60 (1978) (applying Marsh analysis to § 1983 claim against private actor).
 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.” ).
 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).
 407 U.S. 551 (1972).
 424 U.S. 507 (1976).
 Hudgens, 424 U.S. at 519 (quoting Lloyd, 407 U.S. at 568-69).
 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).
 See Bradley, supra note ___, at 232 (discussing other varieties of state action confusion and conflation).
 589 N.W.2d 793 (Minn. 1999).
 Fardig v. Municipality of Anchorage, 785 P. 2d 911, 914 (Alaska 1990).
 597 N.E.2d 208 (Ill. App. Ct. 1992).
 Id. at 213-14 (emphasis added).
 886 F.2d 1391 (1989).
 Id. at 1398.
 Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995).
 See id. at 113-21; see also Gannett Satellite Information Network v. Berger, 894 F.2d 61 (3d Cir. 1990) (applying similar analysis).
 518 U.S. 727 (1996).
 Id. at 737.
CITE AND DISTINGUISH SCHAUER.
 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).
 512 U.S. 43 (1994).
 Id. at 58.
 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).
 See Perry, 460 U.S. at 45-46 (collecting cases).
 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).
 Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 633 (1980) (citing Hynes v. Mayor of Oradell, 425 U.S. 610, 616 (1976)).
 319 U.S. 141 (1943).
 Id. at 147.
 See Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 587 n. 9 (1983).
 See Schaumburg v. Citizens for Better Environ., 444 U.S. 620, 633 (1980); Hynes v. Mayor of Oradell, 425 U.S. 610, 616 (1976).
 518 U.S. 727 (1996).
; 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 ___.
 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 . . . . “).
 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).
 478 U.S. 697 (1986).
 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.”).
 501 U.S. 663 (1991).
 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).
 Marsh, 326 U.S. at 506.
   
 501 U.S. 560, 566 (1991).
 Barnes, 501 U.S. 572-581 (Scalia, J., concurring in judgment).
 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).
 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).
 120 S. Ct. 1382 (2000).
 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 ___.
 Reno v. ACLU, 512 U.S. 844 (1997).
 ACLU v. Reno, No. 99-1324, 2000 WL 801186 (affirming district court order issuing preliminary injunction).
 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).
 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).
 962 F. Supp. 1015 (S.D. Ohio, 1997).
 Id. at 1025-27.
 No. 98AS05067, 1999 WL 450944 (Cal. Super Apr. 28, 1999) (unpublished tentative summary judgment ruling).
 Id. at *2-3.
 Restatement (Second) Torts § 217 (YEAR).
 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”).
 Compuserve, 962 F. Supp. at 1019, 1023.
 Complaint, Intel v. Hamidi, available at <http://cyber.law.harvard.edu/msvh/hamidi/complain.html>.
 Memorandum in Support of Motion for Summary Judgment, Intel v. Hamidi, available at <http://cyber.law.harvard.edu/msvh/hamidi/sjmemo.html>.
 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>.
 No. 98-1856, 2000 WL 826733 (June 28, 2000).
 Hill, 2000 WL at ___; see also Albertini, ___; FTC, ____.
 See generally Cantwell v. Connecticut, ___ U.S. ___ (1940).
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).
 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.
 AT&T Corp. v. Portland, No. 99-35609, 2000 WL 796708 (9th Cir. 2000).
 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.”
 See Microsystems Software, Inc. v. Scandinavia Online AB, 98 F.Supp.2d 74 (D. Mass. 2000).