Post by Gerrard Winstanley on Jul 11, 2014 2:55:05 GMT -8
I've read a lot of muddled things in various places recently concerning the 1st Amendment to the US constitution so it thought it might be a good idea to provide some clarification.
First off I'll state categorically and unequivocally that it does not apply in privately-owned virtual worlds. As it stands - there is no right to free speech in virtual reality - and there is no possibility that this will be overturned at any time in the future.
The proof of this can be divided into three steps: the first is a very simple understanding of the actual limited scope of the 1st Amendment, the second involves comparisons with similar online entities, the third references current federal case law and binding legal precedents.
Firstly, the 1st Amendment was devised and written to limit the powers of government and its agencies to censor its citizens.
Let's quote the relevant paragraph here:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."
It was not intended, nor can it, limit the control that a property owner has over what is said or displayed on their property. These freedoms are protected under the 5th and 14th Amendments (although there are some limits to this under other legislation).
So if a guest or visitor to your property puts up John Denver posters everywhere. They cannot claim that you have violated their 1st Amendment rights when you take them down.
Now the converse obviously sounds ridiculous - that you might be obliged to display them. But this is in essence exactly what people are claiming when they say that grid owners cannot act to remove something, whether textual or visual, due to the magical imagined power of the 1st Amendment.
Secondly, I think the reason people believe it is applicable, is simply because it seems like a public 'world' to us and we assume that the law will also see it that way. The law doesn't.
This is why people invoke it 'in world' yet don't claim it when a forum post is removed - even though legally there is no valid and relevant distinction between a blog, a forum, a website or a virtual world.
What they have in common is that they are privately-owned cyber-space. The owners have the right to choose to display or remove any content created and provided by their users. The virtual 'world' being three dimensional and animated makes not one jot of difference - legally, it's just a 3D website/forum.
Regardless of the terms we use for 'buying' land, we rent it - and all the server space that it's on remains the rented property of the grid owners - and all the digital land on those servers belongs to the owners. Sim 'ownership' is an SL legacy misnomer. We don't actually own sims - we pay for a service - but even if we did, the 1st Amendment is irrelevant to a grid management take-down of anything displayed on them - because Inworldz LCC is a private company, not a government agency.
Just like someone who puts up the John Denver posters on someone else's land - no resident can claim that their 1st Amendment rights to free speech have been violated in a virtual world. We simply do not have any such rights - because we are guest users of privately-owned cyber-space.
Thirdly, this common sense interpretation and conclusion has been thoroughly tested in published federal case law; legally-binding precedents have been set. Any future challenge would have to go up to a federal Court and would have far-reaching consequences for all websites that have any user-generated content - including simple blog post replies, forum contributions and buyer reviews.
There are three widely-cited relevant cases:
Marsh v. Alabama, 326 U.S. 501 (1946)
The town of Chickasaw, Alabama was a company town, owned and run by the Gulf Shipbuilding Corporation. The defendant stood near the post office and distributed religious literature. She was warned, arrested and charged. Her defense contended that this violated her rights under the First Amendment.
This was rejected and Marsh was convicted. The Alabama Court of Appeals affirmed the conviction, on the grounds that the pavement (sidewalk) she was on was private property and had not been irrevocably dedicated to the public.
Now, the US Supreme Court actually overturned this decision 5:3. It noted that if Chickasaw had been a publicly administered municipality the defendant's right to free speech would certainly have been upheld. And although normally this decision wouldn't be made for private property - this was a special case because although all public space in the town was privately-owned, it was a 'company town' with the emphasis on town - and all US citizens had free, unregulated access and it covered a substantial geographical area.
Could virtual worlds ever be granted this particular (rather old-fashioned) status? We'll come back to that.
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
The respondents in this case distributed within a mall owned by the Lloyds Corporation, handbill invitations to a protest meeting against the draft for the Vietnam War. Security guards warned them that they would be arrested unless they stopped. They left the premises to avoid arrest and continued passing out handbills on the streets around the mall.
They later took their case to the District Court which upheld their 1st Amendment rights. Lloyds unsuccessfully appealed the decision at state level - but went on to win their case in the Supreme Court - which ruled on the basis that, unlike Marsh v Alabama, the respondents could have distributed their handbills on "any public street, on any public sidewalk, in any public park, or in any public building."
Therefore, they were not entitled to exercise their free-speech rights on the privately owned shopping-centre property.
Cyber Promotions v. America Online, 948 F. Supp. 436, 442 (E.D. Pa. 1996)
Now we come to cyber-space. Although this case was between an ISP and company using their service, so the particulars are different - in essence it also applies to grid-owners and their 'resident' users.
Cyber Promotions argued that "by providing Internet e-mail and acting as the sole conduit to its members' Internet e-mail boxes, AOL had opened up that part of its network and as such, had sufficiently devoted this domain for public use. Therefore AOL's conduct had the character of state action and could not, under 1st Amendment rights of free speech, prevent them for using the AOL service to distribute their (spam) advertising emails.
The federal court disagreed and ruled against them on the grounds that private action can only be considered state action when "there is a sufficiently close nexus between the State and the [private entity] so that the action of the latter may be fairly treated as that of the State itself."
It noted that Cyber Promotions had numerous alternative avenues of sending its advertising to AOL members - such the rest of the World Wide Web, the United States mail, telemarketing, television, cable, newspapers, magazines and even passing out leaflets. Besides which, AOL's decision to block Cyber's e-mail from reaching AOL's members did not prevent Cyber from sending its e-mail advertisements through competing internet mail service providers.
Returning to the notion of a possible exception and the possibility of a future test case declaring that 1st Amendment rights do apply to privately-owned virtual worlds - is it feasible that a future case taken to federal court would overturn these results by designating virtual worlds as special cases like 'company towns'?
The answer is a resounding NO (although in the early days there were many misguided and fanciful speculations that this would eventually be the case see, for example: digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1238&context=fss_papers).
The main reason of course is as stated above - it appears to be like a public world to us from our subjective perspective on the inside - but looked at objectively from the outside it is no different from any two-dimensional web space like a forum - where the owner's rights to control content trump the users rights to not have any post deleted (unless it can be proven that the owners are running the site in full collaboration with, and therefore acting as agents of, a government body or the US state as a whole).
On the user's side - regardless of the content of the TOS - just ticking that box is acknowledgment that you are entering a privately-owned arena of which there are many others, both 2D and 3D , and therefore you have no resource to US law in claiming the right to free speech under the First Amendment to the United States Constitution, 1791.
Further reading: www.cyberspacelaw.org/easton/easton5.html
First off I'll state categorically and unequivocally that it does not apply in privately-owned virtual worlds. As it stands - there is no right to free speech in virtual reality - and there is no possibility that this will be overturned at any time in the future.
The proof of this can be divided into three steps: the first is a very simple understanding of the actual limited scope of the 1st Amendment, the second involves comparisons with similar online entities, the third references current federal case law and binding legal precedents.
Firstly, the 1st Amendment was devised and written to limit the powers of government and its agencies to censor its citizens.
Let's quote the relevant paragraph here:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press."
It was not intended, nor can it, limit the control that a property owner has over what is said or displayed on their property. These freedoms are protected under the 5th and 14th Amendments (although there are some limits to this under other legislation).
So if a guest or visitor to your property puts up John Denver posters everywhere. They cannot claim that you have violated their 1st Amendment rights when you take them down.
Now the converse obviously sounds ridiculous - that you might be obliged to display them. But this is in essence exactly what people are claiming when they say that grid owners cannot act to remove something, whether textual or visual, due to the magical imagined power of the 1st Amendment.
Secondly, I think the reason people believe it is applicable, is simply because it seems like a public 'world' to us and we assume that the law will also see it that way. The law doesn't.
This is why people invoke it 'in world' yet don't claim it when a forum post is removed - even though legally there is no valid and relevant distinction between a blog, a forum, a website or a virtual world.
What they have in common is that they are privately-owned cyber-space. The owners have the right to choose to display or remove any content created and provided by their users. The virtual 'world' being three dimensional and animated makes not one jot of difference - legally, it's just a 3D website/forum.
Regardless of the terms we use for 'buying' land, we rent it - and all the server space that it's on remains the rented property of the grid owners - and all the digital land on those servers belongs to the owners. Sim 'ownership' is an SL legacy misnomer. We don't actually own sims - we pay for a service - but even if we did, the 1st Amendment is irrelevant to a grid management take-down of anything displayed on them - because Inworldz LCC is a private company, not a government agency.
Just like someone who puts up the John Denver posters on someone else's land - no resident can claim that their 1st Amendment rights to free speech have been violated in a virtual world. We simply do not have any such rights - because we are guest users of privately-owned cyber-space.
Thirdly, this common sense interpretation and conclusion has been thoroughly tested in published federal case law; legally-binding precedents have been set. Any future challenge would have to go up to a federal Court and would have far-reaching consequences for all websites that have any user-generated content - including simple blog post replies, forum contributions and buyer reviews.
There are three widely-cited relevant cases:
Marsh v. Alabama, 326 U.S. 501 (1946)
The town of Chickasaw, Alabama was a company town, owned and run by the Gulf Shipbuilding Corporation. The defendant stood near the post office and distributed religious literature. She was warned, arrested and charged. Her defense contended that this violated her rights under the First Amendment.
This was rejected and Marsh was convicted. The Alabama Court of Appeals affirmed the conviction, on the grounds that the pavement (sidewalk) she was on was private property and had not been irrevocably dedicated to the public.
Now, the US Supreme Court actually overturned this decision 5:3. It noted that if Chickasaw had been a publicly administered municipality the defendant's right to free speech would certainly have been upheld. And although normally this decision wouldn't be made for private property - this was a special case because although all public space in the town was privately-owned, it was a 'company town' with the emphasis on town - and all US citizens had free, unregulated access and it covered a substantial geographical area.
Could virtual worlds ever be granted this particular (rather old-fashioned) status? We'll come back to that.
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
The respondents in this case distributed within a mall owned by the Lloyds Corporation, handbill invitations to a protest meeting against the draft for the Vietnam War. Security guards warned them that they would be arrested unless they stopped. They left the premises to avoid arrest and continued passing out handbills on the streets around the mall.
They later took their case to the District Court which upheld their 1st Amendment rights. Lloyds unsuccessfully appealed the decision at state level - but went on to win their case in the Supreme Court - which ruled on the basis that, unlike Marsh v Alabama, the respondents could have distributed their handbills on "any public street, on any public sidewalk, in any public park, or in any public building."
Therefore, they were not entitled to exercise their free-speech rights on the privately owned shopping-centre property.
Cyber Promotions v. America Online, 948 F. Supp. 436, 442 (E.D. Pa. 1996)
Now we come to cyber-space. Although this case was between an ISP and company using their service, so the particulars are different - in essence it also applies to grid-owners and their 'resident' users.
Cyber Promotions argued that "by providing Internet e-mail and acting as the sole conduit to its members' Internet e-mail boxes, AOL had opened up that part of its network and as such, had sufficiently devoted this domain for public use. Therefore AOL's conduct had the character of state action and could not, under 1st Amendment rights of free speech, prevent them for using the AOL service to distribute their (spam) advertising emails.
The federal court disagreed and ruled against them on the grounds that private action can only be considered state action when "there is a sufficiently close nexus between the State and the [private entity] so that the action of the latter may be fairly treated as that of the State itself."
It noted that Cyber Promotions had numerous alternative avenues of sending its advertising to AOL members - such the rest of the World Wide Web, the United States mail, telemarketing, television, cable, newspapers, magazines and even passing out leaflets. Besides which, AOL's decision to block Cyber's e-mail from reaching AOL's members did not prevent Cyber from sending its e-mail advertisements through competing internet mail service providers.
Returning to the notion of a possible exception and the possibility of a future test case declaring that 1st Amendment rights do apply to privately-owned virtual worlds - is it feasible that a future case taken to federal court would overturn these results by designating virtual worlds as special cases like 'company towns'?
The answer is a resounding NO (although in the early days there were many misguided and fanciful speculations that this would eventually be the case see, for example: digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1238&context=fss_papers).
The main reason of course is as stated above - it appears to be like a public world to us from our subjective perspective on the inside - but looked at objectively from the outside it is no different from any two-dimensional web space like a forum - where the owner's rights to control content trump the users rights to not have any post deleted (unless it can be proven that the owners are running the site in full collaboration with, and therefore acting as agents of, a government body or the US state as a whole).
On the user's side - regardless of the content of the TOS - just ticking that box is acknowledgment that you are entering a privately-owned arena of which there are many others, both 2D and 3D , and therefore you have no resource to US law in claiming the right to free speech under the First Amendment to the United States Constitution, 1791.
Further reading: www.cyberspacelaw.org/easton/easton5.html