53 Pages Posted: 30 Jul 2007

Abstract

The Internet has been conceptualized as a forum for free expression with near limitless potential for individuals to express themselves and to access the expression of others. But that potential is in danger of being seriously hampered as a result of the privatization of Internet forums for expression. During the Clinton Administration, the government undertook measures to turn over many aspects of the Internet to private entities. The end result of this increased private control is that, in contrast to real space, speech in cyberspace occurs almost exclusively within privately-owned places. The public/private balance that characterizes real space and renders the First Amendment meaningful within real space is all but absent in cyberspace. As a result, private regulation of speech on the Internet has grown pervasive, and is substantially unchecked by the Constitution's free speech protections. Under earlier First Amendment jurisprudence, such private speech regulation might have been subject to meaningful First Amendment checks under the state action doctrine, but the Supreme Court has substantially limited the application of the state action doctrine in recent years, and courts have been unwilling to extend this doctrine to treat private regulators of Internet speech as state actors for First Amendment purposes. This shift in First Amendment jurisprudence is consistent with the negative conception of the First Amendment, under which free speech values are understood as best advanced by facilitating a proliferation of private speech decisions without intervention or control by the government. This negative conception of the First Amendment conceptualizes the sole function of the free speech guarantee as checking government restriction of speech. This conception fails to incorporate the important affirmative role the government plays in facilitating freedom of speech and correcting imperfections in the market for free expression, particularly through providing public forums for expression and protecting speech from censorship within such forums.

Under the public forum doctrine, the government is affirmatively obliged to dedicate property to the public's use for free speech purposes, and within such public forums free speech rights are accorded their greatest protection. In real space, the existence of such public forums ameliorates the inequalities that disparities in private property ownership would otherwise impose on individuals' free speech rights. Public forums subsidize the speech of those who otherwise would not be able to express themselves effectively. However, there are essentially no such "public forums" on the Internet because the places within which expression occurs are overwhelmingly privately owned. As a result, there are essentially no places on the Internet where speech is constitutionally protected against censorship. The lack of public forums in cyberspace augurs the absence of meaningful protection for free speech.

In this Article, I describe the scope and extent of private ownership of the Internet and private regulation of Internet forums for speech. I then analyze the important role served by public forums within our system of democratic self-government. Next, I analyze the recent Supreme Court public forum decision in United States v. American Library Association, in which the Court declined to apply meaningful First Amendment scrutiny to the government speech restrictions within Internet forums. Finally, I set forth several ways in which courts and legislatures should act to reintroduce the values of the public forum into cyberspace. I argue that the absence of true public forums in cyberspace brings with it the erosion of important First Amendment values. Courts and legislatures should act to remedy this problem and faithfully translate First Amendment values to render these values meaningful in the new technological age.