Inc. v. America Online Cyber Promotions Inc.

The First Amendment prohibits the government from "abridging the freedom of speech." AOL argued that, because it is a private company and not a government actor, 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 explained in the 1974 case of Jackson v. Metropolitan Edison Co., there are three tests under which a purely private action may be deemed "state action" for purposes 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 free speech 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 to administer the state's prisons, then the actions of the private company will be 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 and private actors are acting together in furtherance of a common goal. Cyber Promotions argued that, because AOL filed a lawsuit asking the court to prohibit it 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 into state 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 any governmental 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.