In the offline world, we’ve seen this intersection in (among other situations) U.S. Supreme Court cases addressing private speech at privately owned company towns and shopping centers. In some cases, the Supreme Court has said that certain landowners cannot prevent speakers from speaking on their private property. However, in other cases, the landowner’s property rights have trumped the speaker’s right to speak on the property, allowing the landowner to “censor” the speaker.
In the online world, the speech/rights dichotomy raises equally complex issues. Online private actors routinely use their private property (such as computers and networks) to create virtual spaces designed for speech, although speaker access is usually controlled by contract. An online provider exercising its property or contract rights inevitably squelches a speaker’s rights. But despite online providers’ capacity to exercise their rights capriciously, courts so far have unanimously held that private online providers are not state actors for First Amendment purposes. In one representative case, AOL could refuse to deliver email messages when a spammer tried to send spam through AOL’s network. In other words, in theory, courts could do something about providers squelching speech, but have sided with providers because the Constitution doesn’t apply in these cases. But how do we distinguish between AOL’s response to spam (which seems right) and a virtual world’s decision to kick off a user? In both cases, the online provider can choose, but we’re tempted to side with AOL on spam and side against virtual world providers on everything else. It’s that inconsistency that I’m trying to address here.
The virtual world industry is burgeoning. Millions of users participate in such complex interactive spaces as EverQuest, Second Life, World of Warcraft, and The Sims Online. With the emergence of these “virtual worlds,” we must once again consider how we balance a customer’s speech against a virtual world provider’s rights to squelch speech. To strike a balance, we must decide whether virtual worlds are more like physical world company towns or shopping centers, or are just another category of online providers.