The Southern District of California District Court held last week that the First Amendment does not apply to stop Sony from removing people from its "Playstation 3 Network" based on their speech. Erik Estavillo sued Sony seeking $55,000 in damages, alleging that (among other claims) the First Amendment's guarantee of free speech precluded Sony from kicking him off of the Network. The District Court held that because Sony was not the government (and thus was not a state actor for First Amendment purposes), nor a "company town" (an exception to the state action requirement of the
First Amendment), nor maintained a sufficient structural or functional nexus to the government (a second "exception" to the state action requirement of the first amendment), the plaintiff could not maintain an action against Sony based on a claim of infringement of free speech rights. [note: the case is
Estavillo v. Sony Computer Entm't Am. Inc., 2009 U.S. Dist. LEXIS 86821; as of this writing I cannot locate either a Westlaw version or a free online version; it seems the Southern District of California does not publish its opinions online]
The result really isn't too surprising, as the "company town" exception to a private property owner's ability to control speech unhindered by the First Amendment relies on the notion that the company not only owns the land in question, but takes over the responsibilities usually associated with a municipality (according to the U.S. Supreme Court in Marsh v. Alabama, 326 U.S. 501 (1945)). The Supreme Court has refused to extend the doctrine to cover shopping malls in many situations, for example, though some state courts and legislatures have done just this (and it is consistent with Supreme Court precedent in the area).
Even given its rather brief rejection by the District Court, however, the argument is not entirely without merit. It has also been made (though not in this precise context) in a 2004 law review article [pdf] by Yale Law Professor (and Balkinization blogger) Jack Balkin:
“Although [the online community owner] does not take over “the full spectrum of municipal powers” in real space, it does exercise all of those functions in the virtual world. If any private entity could be regarded as a company town, it would be a virtual world. This is especially so because the whole point of the virtual world is to create community (or communities), and action in the virtual world occurs through the exchange of ideas.”
Balkin points out that not every attempt at creating an online "space" (my word, not his) will end up creating a space to which the First Amendment should apply. 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. Whether Sony's Playstation 3 Network meets this criteria would involve much more discussion about how it functions and what its purpose is (knowing what I do about it I doubt it does), but I see another problem that isn't explicitly addressed in the case or in Balkin's article.
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