Internet & First Amendment horizon

Wednesday, November 20, 2002

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

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

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.