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Virtual Banishment and the First Amendment: Estavillo v. Sony Computer Entertainment of America

I saw this case in the excellent National Association of Attorneys General publication Cyber Crime e-newsletter.

Many of us host or sponsor online communities of one form or another. On occasion, this means we must engage in moderation of the discourse in that community, and, as chance may arise, on occasion, we must give some chap the boot from the community for violating the AUP or the TOS. Inevitable, the booted chap screams “First Amendment Violation,” to which we must respond, “The First Amendment restrains government actors—we are not government actors.”

Apparently, we are correct.

In the case Estavillo v. Sony Computer Entertainment of America, No. C-09-03007 (NDCA Sept. 22, 2009), Plaintiff claimed that Defendant violated Plaintiff’s First Amendment rights when Defendant excused Plaintiff from the Sony Playstation 3 Network (a gaming social network). Defendant filed a Motion to Dismiss for Failure to State a Cause of Action. Defendant is not a government and not, therefore, retrained by the First Amendment. Simple case, right?

But if I remember back to 2nd year law school (I do my best not to), there were in fact times when non-government actors might be retrained by the First Amendment. The big case in this space involved “company towns.” These are instances where a company—a mining company for instance—owns all the land, all the buildings, all the stores, and essentially has taken on all day-to-day life functions of a municipality. See Marsh v. Alabama, 326 U.S. 501 (1945). In that case the Supremes held that the company could not arrest a fellow for walking down the company town’s public side walk and handing out religious literature, even though it was against company regulations.

The Court in today’s case rejects the notion that Defendant might be considered a company town.

Sony’s Network is not similar to a company town. The Network does not serve a substantial portion of a municipality’s functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include “virtual spaces” such as virtual “homes” and a virtual “mall” that are used by a substantial number of users (Pl.‘s Reply in Supp. of Opp’n. to Dismiss 1), these “spaces” serve solely to enrich the entertainment services on Sony’s private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not “performing the full spectrum of municipal powers and [standing] in the shoes of the State.” Hudgens, 424 U.S. at 519 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69 (1972)).

Defendant’s service is an entertainment service. Defendant does not provide roads or sidewalks. Defendant is not coming to put out any fires or arresting any jay walkers. Defendant does not plow the roads when it snows (of course, recently, failure to plow a road during a snow storm by no means disqualifies you from being a municipality).

Amazingly, not everyone is convinced. Prof. Jack Balkin writes (as Rob Heverly summarizes),

Rather, those where the space is created “to form communities or create channels for general public communication” could be subject to the First Amendment’s requirements.

Really! Wow, that’s a bad idea. There are lots of communities created all the time. Churches. Youth clubs. Sports clubs. Communities for playing games. In the offline world, the question is quite clear that creating a space to form a community does not turn one into a government; indeed this activity is recognized under the Freedom of Association. And the Freedom of Association includes the freedom not to associate, to say, for example, “I don’t like your speech and I don’t want to associate with you.” It is at the core of the distinction between a restraint on government action and a restraint on private action. Private actors are allowed to not-associate based on speech issues; government actors, not so much.

Online communities, much like offline communities, form as tribes around common interests. In order to maintain and pursue the objectives of that community of interest, moderators impose TOS and AUP. Some communities are successful; some are not. The makings of a good community frequently involves the hand of a moderator who can guide discourse without deterioration to Godwin’s Law (as an online discussion becomes protracted and entrenched, it becomes ever more likely that someone implement the rhetoric skill of comparing their opponent to Nazis or Hitler). (See another good article on Speech in Virtual Worlds by Eric Goldman)

This is in praise to good moderators and good discourse. “A single conversation across the table with a wise person is worth a month’s study of books” - Chinese Proverb. No wait, this was about that case. The Court dismissed it for failure to state a cause of action; Sony, host of an online community, aint a government actor.

By Robert Cannon, Cybertelecom

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