Internet service providers such as America Online have a great deal of control over online expression. These ISPs can regulate their subscribers’ expression and remove speech that violates the companies' policies. ISPs also can revoke subscribers' access altogether. This phenomenon raises the question of whether an individual subscriber could mount a successful First Amendment lawsuit, claiming that the ISP had violated her free-speech rights.

So far, such claims have fallen on deaf ears. Courts have applied the state-action doctrine, holding that the First Amendment protects individuals only from government curtailments of speech, not those by private entities. Because the ISPs are private companies they are not state actors. Thus, the First Amendment claims fail.

In Noah v. America Online (2003), a federal district court in Virginia rejected the First Amendment claim of a subscriber who said AOL had violated his free-speech rights by censoring his pro-Islamic statements. The court wrote:

“Yet, even assuming the truth of plaintiff’s allegations, the First Amendment is of no avail to him in these circumstances; it does not protect against actions taken by private entities, rather it is a guarantee only against abridgment by government, state or federal.”

A federal appeals court rejected a similar claim against AOL filed by a man who argued that AOL’s Community Guidelines violated his free-speech rights. The court summarily rejected the claim in Green v. America Online (2003), writing:

“We are unpersuaded by Green’s contentions that AOL is transformed into a state actor because AOL provides a connection to the Internet on which government and taxpayer-funded websites are found, and because AOL opens its network to the public whenever an AOL member accesses the Internet and receives e-mail or other messages from non-members of AOL.”

More recently a federal district court in Delaware heard the case Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007) which reinforced the principle that the First Amendment does not apply to ISPs. The court wrote:

“Defendants (Google, Yahoo! and Microsoft) are private, for profit companies, not subject to constitutional free speech guarantees … . Plaintiff’s position that Google is a state actor because it works with state universities is specious.”

The court also noted that the ISPs had their own First Amendment rights. The plaintiff, Langdon, sued the ISPs because they refused to run requested ads on his Web sites. Google argued that being forced to run the ads would require them to speak in a manner deemed appropriate by Langdon and would prevent Google from speaking in ways Langdon disliked.

The court agreed that compelling the defendants to run the ads would infringe on their First Amendment rights. It wrote:

“The First Amendment guarantees an individual the right to free speech, a term necessarily comprising the decision of both what to say and what not to say.”

Robert O’Neil, author of The First Amendment and Civil Liability, discusses the possibility that an ISP could be treated as tantamount to government in his book:

“Will the time come when courts will view the largest and most powerful of the Internet service providers in much the same way? The case for protecting a subscriber’s freedom of expression against a large Internet service provider is at least plausible and awaits a proper test case.”

It's anyone's guess when such a case might arise.

Updated October 2008. Bill Kenworthy contributed to this article.