Plaintiff
Cyber Promotions, Inc.
Defendant
America Online, Inc.
Plaintiff's Claim
That the defendant's blocking of e-mail advertisements sent by the plaintiffto the defendant's customers violated the plaintiff's right to free speech under the First Amendment.
Chief Lawyer for Plaintiff
Ralph A. Jacobs
Chief Defense Lawyer
Ronald P. Schiller
Judge
Charles R. Weiner
Place
Philadelphia, Pennsylvania
Date of Decision
4 November 1996
Decision
That because the defendant was a private company, rather than a public actor,its blocking of the plaintiff's e-mail advertisements did not violate the First Amendment; the First Amendment only prevents public officials from restricting freedom of speech, not private actors.
Significance
The court's decision recognized that private on-line service providers have nearly absolute power to control the information which is sent over their on-line systems, without regard to the First Amendment. Thus, on-line service providers are free to impose whatever type of restrictions they please on the dissemination of information over their systems following the court's decision.
During the late 1980s and early 1990s, the proliferation of computers and computer technologies lead to the development of the Internet. The Internet, a vast, complex network of interconnected computers, allows millions of computerusers to communicate with each other and to access information from around the world on virtually any topic. There are a number of ways to access the Internet. For example, many universities provide Internet access to students andfaculty, and some employers provide such access to their employees. However,a large number of people access the Internet through the use of private on-line companies. A person can subscribe to the on-line company and pay a monthly fee for the service. When the user connects to the on-line company, the user is given access to whatever amenities the on-line company may have. For example, the on-line company may provide electronic mail services, its own newsgroups , information services, and "chat rooms." These companies also generally provide access to the Internet.
America Online, Inc. (AOL) is one such private on-line company. Cyber Promotions, Inc., an Internet advertiser, sent unsolicited electronic mail advertisements to AOL subscribers via the Internet. On 26 January 1996, AOL sent a letter to Cyber Promotions advising it that AOL was unhappy with Cyber Promotions' dissemination of these unsolicited e-mails to AOL subscribers. When CyberPromotions refused to stop the practice, AOL sent a number of "e-mail bombs"to Cyber Promotions' Internet service providers. AOL accomplished this by sending all unsolicited e-mail messages, which were addressed to AOL subscribersbut not delivered, back to Cyber Promotions' service providers. These "bombs" disabled Cyber Promotions' service providers because their sheer bulk overwhelmed the capabilities of the service providers.
In response, Cyber Promotions filed a lawsuit in the U.S. District Court forthe Eastern District of Pennsylvania, alleging that as a result of AOL's "e-mail bombs" two Internet service providers canceled their relationship with Cyber Promotions, and thus AOL interfered with its business relationships. Thereafter, AOL filed its own lawsuit in the U.S. District Court for the EasternDistrict of Virginia, alleging various counts of computer fraud and trademarkinfringement. The Virginia court transferred the second case to the Pennsylvania court, which consolidated the two lawsuits. The Pennsylvania court thendirected the parties to file legal briefs addressing whether Cyber Promotionshas a right to send unsolicited e-mail messages to AOL subscribers, or conversely whether AOL has a right to block such e-mail.
Private Restriction on Internet Speech Is Valid
The First Amendment prohibits the government from "abridging the freedom of speech." AOL argued that, because it is a private company and not a governmentactor, it was free to prohibit Cyber Promotions' e-mails. Cyber Promotions,on the other hand, argued that although AOL is a private actor, its conduct had character of governmental, or state action. As the Supreme Court explainedin the 1974 case of Jackson v. Metropolitan Edison Co., there are three tests under which a purely private action may be deemed "state action" forpurposes of determining whether the conduct is prohibited by the Constitution. Judge Charles Weiner rejected Cyber Promotions' arguments that any of these three tests converted AOL's action into a governmental restriction on freespeech prohibited by the First Amendment.
The first test is known as the "exclusive public function" test. Under this test, conduct of a private actor may be deemed to constitute state action where the private actor is exercising powers typically exercised by the government. For example, where a state government contracts with a private company toadminister the state's prisons, then the actions of the private company willbe deemed to constitute state action because the running of prisons is normally a power exercised by the state. Judge Weiner concluded that AOL did not exercise any such powers with respect to the Internet. Indeed, he noted, no entity seems to exercise any control over the Internet. He reasoned that, although AOL opened its system to the public, which can send e-mails into the AOL system, it did not do so by exercising any traditional governmental powers. Thus, AOL's provision of Internet e-mail access did not meet the exclusive public function test.
Judge Weiner also rejected Cyber Promotions' claim that AOL's conduct constituted state action under the second test explained in Jackson. Under this second test, called the "symbiotic relationship" or "joint participation"test, a private actor's conduct will be deemed state action where the state has so insinuated itself into the private actor's conduct that the public andprivate actors are acting together in furtherance of a common goal. Cyber Promotions argued that, because AOL filed a lawsuit asking the court to prohibitit from sending the unsolicited e-mails, AOL and the court which was unquestionably a state actor were engaged in a joint enterprise to restrict Cyber Promotions' free speech rights. Judge Weiner rejected this argument, noting that the mere fact that a private party seeks to enforce its private rights in court does not transform its actions into state action. Cyber Promotions offered no other evidence of concerted action between AOL and a government actor.Thus, Judge Weiner concluded that AOL could not be considered a state actor under the joint participation test.
Finally, Judge Weiner rejected Cyber Promotions' claim that AOL was a state actor under the third test explained by the Jackson Court. This third test, known as the "government compulsion" test, converts private action intostate action where the state has coerced or strongly encouraged the state actor to engage in the allegedly unconstitutional conduct. Judge Weiner noted that, as with the second test, Cyber Promotions presented no evidence that anygovernmental actor encouraged or participated in AOL's e-mail bombings. Thus,AOL's conduct could not be deemed state action under the government compulsion test. Thus, Judge Weiner concluded that, because AOL is a private company,Cyber Promotions has no First Amendment right to send unsolicited e-mail over AOL's e-mail system. Therefore, AOL did not infringe on Cyber Promotions' First Amendment free speech rights by blocking these e-mails and delivering them back to Cyber Promotions.
Impact
Shortly after he issued his decision, a judge in the U.S. District Court forthe Northern District of Ohio adopted Judge Weiner's reasoning. In Compuserve Inc. v. Cyber Promotions, Inc., that court rejected a similar claim by Cyber Promotions, relying extensively on Judge Weiner's opinion. Thus, it is apparent that private on-line service providers are free to regulate the type of speech which is disseminated over their on-line systems without regardto the First Amendment. Given that other courts have struck down a number ofdifferent restrictions on Internet speech enacted by the state and federal governments, the courts are in large part coming to the conclusion that the Internet is best left alone to allow Internet users to police their own system.
Related Cases
Cyber Promotions, Inc.
Defendant
America Online, Inc.
Plaintiff's Claim
That the defendant's blocking of e-mail advertisements sent by the plaintiffto the defendant's customers violated the plaintiff's right to free speech under the First Amendment.
Chief Lawyer for Plaintiff
Ralph A. Jacobs
Chief Defense Lawyer
Ronald P. Schiller
Judge
Charles R. Weiner
Place
Philadelphia, Pennsylvania
Date of Decision
4 November 1996
Decision
That because the defendant was a private company, rather than a public actor,its blocking of the plaintiff's e-mail advertisements did not violate the First Amendment; the First Amendment only prevents public officials from restricting freedom of speech, not private actors.
Significance
The court's decision recognized that private on-line service providers have nearly absolute power to control the information which is sent over their on-line systems, without regard to the First Amendment. Thus, on-line service providers are free to impose whatever type of restrictions they please on the dissemination of information over their systems following the court's decision.
During the late 1980s and early 1990s, the proliferation of computers and computer technologies lead to the development of the Internet. The Internet, a vast, complex network of interconnected computers, allows millions of computerusers to communicate with each other and to access information from around the world on virtually any topic. There are a number of ways to access the Internet. For example, many universities provide Internet access to students andfaculty, and some employers provide such access to their employees. However,a large number of people access the Internet through the use of private on-line companies. A person can subscribe to the on-line company and pay a monthly fee for the service. When the user connects to the on-line company, the user is given access to whatever amenities the on-line company may have. For example, the on-line company may provide electronic mail services, its own newsgroups , information services, and "chat rooms." These companies also generally provide access to the Internet.
America Online, Inc. (AOL) is one such private on-line company. Cyber Promotions, Inc., an Internet advertiser, sent unsolicited electronic mail advertisements to AOL subscribers via the Internet. On 26 January 1996, AOL sent a letter to Cyber Promotions advising it that AOL was unhappy with Cyber Promotions' dissemination of these unsolicited e-mails to AOL subscribers. When CyberPromotions refused to stop the practice, AOL sent a number of "e-mail bombs"to Cyber Promotions' Internet service providers. AOL accomplished this by sending all unsolicited e-mail messages, which were addressed to AOL subscribersbut not delivered, back to Cyber Promotions' service providers. These "bombs" disabled Cyber Promotions' service providers because their sheer bulk overwhelmed the capabilities of the service providers.
In response, Cyber Promotions filed a lawsuit in the U.S. District Court forthe Eastern District of Pennsylvania, alleging that as a result of AOL's "e-mail bombs" two Internet service providers canceled their relationship with Cyber Promotions, and thus AOL interfered with its business relationships. Thereafter, AOL filed its own lawsuit in the U.S. District Court for the EasternDistrict of Virginia, alleging various counts of computer fraud and trademarkinfringement. The Virginia court transferred the second case to the Pennsylvania court, which consolidated the two lawsuits. The Pennsylvania court thendirected the parties to file legal briefs addressing whether Cyber Promotionshas a right to send unsolicited e-mail messages to AOL subscribers, or conversely whether AOL has a right to block such e-mail.
Private Restriction on Internet Speech Is Valid
The First Amendment prohibits the government from "abridging the freedom of speech." AOL argued that, because it is a private company and not a governmentactor, it was free to prohibit Cyber Promotions' e-mails. Cyber Promotions,on the other hand, argued that although AOL is a private actor, its conduct had character of governmental, or state action. As the Supreme Court explainedin the 1974 case of Jackson v. Metropolitan Edison Co., there are three tests under which a purely private action may be deemed "state action" forpurposes of determining whether the conduct is prohibited by the Constitution. Judge Charles Weiner rejected Cyber Promotions' arguments that any of these three tests converted AOL's action into a governmental restriction on freespeech prohibited by the First Amendment.
The first test is known as the "exclusive public function" test. Under this test, conduct of a private actor may be deemed to constitute state action where the private actor is exercising powers typically exercised by the government. For example, where a state government contracts with a private company toadminister the state's prisons, then the actions of the private company willbe deemed to constitute state action because the running of prisons is normally a power exercised by the state. Judge Weiner concluded that AOL did not exercise any such powers with respect to the Internet. Indeed, he noted, no entity seems to exercise any control over the Internet. He reasoned that, although AOL opened its system to the public, which can send e-mails into the AOL system, it did not do so by exercising any traditional governmental powers. Thus, AOL's provision of Internet e-mail access did not meet the exclusive public function test.
Judge Weiner also rejected Cyber Promotions' claim that AOL's conduct constituted state action under the second test explained in Jackson. Under this second test, called the "symbiotic relationship" or "joint participation"test, a private actor's conduct will be deemed state action where the state has so insinuated itself into the private actor's conduct that the public andprivate actors are acting together in furtherance of a common goal. Cyber Promotions argued that, because AOL filed a lawsuit asking the court to prohibitit from sending the unsolicited e-mails, AOL and the court which was unquestionably a state actor were engaged in a joint enterprise to restrict Cyber Promotions' free speech rights. Judge Weiner rejected this argument, noting that the mere fact that a private party seeks to enforce its private rights in court does not transform its actions into state action. Cyber Promotions offered no other evidence of concerted action between AOL and a government actor.Thus, Judge Weiner concluded that AOL could not be considered a state actor under the joint participation test.
Finally, Judge Weiner rejected Cyber Promotions' claim that AOL was a state actor under the third test explained by the Jackson Court. This third test, known as the "government compulsion" test, converts private action intostate action where the state has coerced or strongly encouraged the state actor to engage in the allegedly unconstitutional conduct. Judge Weiner noted that, as with the second test, Cyber Promotions presented no evidence that anygovernmental actor encouraged or participated in AOL's e-mail bombings. Thus,AOL's conduct could not be deemed state action under the government compulsion test. Thus, Judge Weiner concluded that, because AOL is a private company,Cyber Promotions has no First Amendment right to send unsolicited e-mail over AOL's e-mail system. Therefore, AOL did not infringe on Cyber Promotions' First Amendment free speech rights by blocking these e-mails and delivering them back to Cyber Promotions.
Impact
Shortly after he issued his decision, a judge in the U.S. District Court forthe Northern District of Ohio adopted Judge Weiner's reasoning. In Compuserve Inc. v. Cyber Promotions, Inc., that court rejected a similar claim by Cyber Promotions, relying extensively on Judge Weiner's opinion. Thus, it is apparent that private on-line service providers are free to regulate the type of speech which is disseminated over their on-line systems without regardto the First Amendment. Given that other courts have struck down a number ofdifferent restrictions on Internet speech enacted by the state and federal governments, the courts are in large part coming to the conclusion that the Internet is best left alone to allow Internet users to police their own system.
Related Cases
- Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
- Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).
- Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
- Turner Broadcasting Systems, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994).
- Reno v. American Civil Liberties Union, 514 U.S. 844 (1997).
- Compuserve Inc. v. Cyber Promotions, Inc., 962 F.Supp. 1015 (1997).
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