“Censorship! You’re violating my First Amendment Rights!”
Students of online communities joke that most online debates eventually devolve into either comparisons to Hitler or allegations of violation of free speech rights. The person or people raising cries of censorship and assertions of the right to free speech are usually testing or pushing the envelope of the acceptable boundaries within the community — going off topic, profanity, flame wars, and so on.
Is free speech an absolute right within online communities? Can an online community, regardless of its size and membership requirements, establish and enforce a more restrictive code of conduct?
There is a long, well-established precedent for moderation/governance in online communities — both ones that are open to the public and private ones. Online communities have for years been in the practice of having codes of conduct that were far more restrictive than constitutional protections. Even large, open membership communities have moderators who are able to edit or delete posts and suspend or eject members who violate those codes of conduct. To say that the boundaries of constitutionally protected free speech are applicable to any privately-owned online community is to go contrary to decades of business practices.
Do blogs change this? What about sites like Youtube, Ecademy, or AlwaysOn, in which individual blogs or channels are aggregated or displayed in the front page and other pages? One could make the argument that blogs are somehow different because of the fact that they are an individual voice rather than a community space. However, the aggregation of them on the front page and the nature of the threaded comments we believe negates any such argument. The site may call them blogs, but if they’re aggregated and allow comments, they’re still really just one big threaded discussion forum. We doubt a court would see a substantial difference simply based on the slight technical difference.
Even so, most hosting companies, including blog hosting companies, also have terms of service that are more restrictive than free speech limits, typically restricting hate speech and pornography, among other things. For example, WordPress prohibits the use of PayPerPost (a service which allows advertisers to pay bloggers to post about their product) on blogs hosted on its service. Is that a violation of a blogger’s right to free speech?
Under the Uniform Commercial Code, we all have the right to voluntary restrict our free speech by contract, and when we join an online community we are doing just that — subject to whatever the terms of service are. In fact, the contract doesn’t even have to be explicitly signed in order to be in effect. Consider that when you walk into a theater or restaurant, you give up some of your free speech rights. Do anything that is significantly unpleasant to other patrons — talk too loudly, let your kids run wild, etc. — and you’ll be warned and eventually ejected.
Why would anyone expect an online community to be any different?
You do have the right of free speech, but the owners of a community also have the right to establish and enforce codes of conduct within the community. In fact, the very same First Amendment jurisprudence that allows free speech allows the community owners not to be forced to “carry” that free speech. Further, by joining that community, your right of contract supersedes your right of free speech.
Many of these issues were ironed out in the early days of the Internet with the 1995 Stratton Oakmont v. Prodigy decision and its subsequent reversal by the U.S. Congress as part of the Communications Decency Act. The end result of this was two-fold: first, it grants online community providers a near-blanket immunity from liability for content posted by users, whether the community attempts to control the content or not. Secondly, under this legal protection, communities have been allowed to exercise control over content they consider objectionable in order to best serve the needs of the particular community.
However, the emergence of virtual worlds like The Sims Online and Second Life has brought the issue to the forefront again with several much-publicized cases. Santa Clara University Assistant Professor Eric Goldman has covered this in his 2005 paper, “Speech Showdowns at the Virtual Corral”, in which he writes:
Neither free speech rights nor private property and contract rights are absolute. Where they intersect in the physical world, confusing legal doctrines usually emerge, such as the U.S. Supreme Court cases addressing private speech at privately-owned company towns and shopping centers. Though a bright-line rule has emerged—the First Amendment pertains only to state actors—the rule provides little prospective guidance because private actors can be characterized as state actors in some circumstances.
In the online world, the speech/rights dichotomy also raises complex issues. Online private actors routinely use their private property (such as computers and networks) to create virtual spaces designed for speech, though speaker access is usually controlled by contract. An online provider exercising its property or contract rights inevitably squelches a speaker’s rights. Nevertheless, 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.
So when you find yourself bumping up against the boundaries of behavior in an online community, you might want to consider whether that community is really the right community for you. If so, then you can either adapt your behavior to the code of conduct or you can use persuasive means to try to change the code of conduct. But don’t make cries of “Censorship!” — you gave up that right when you joined.