On Wed, 30 Jul 1997, Tim Jacobson wrote:
> I don't know where the idea came from that the First Amendment
> doesn't apply to forums created by private entities. The First
> Amendment does apply to such situations. However, the First
> Amendment is designed to protect individuals from being silenced
> by the government. The issue of whether an operator of a private
> bulletin board can or should exercise some control over messages
> being posted is an entirely separate matter. Moderators of
> "moderated" listservs exercise control over the messages being
> posted all the time.
I'd love to see any cases that you can provide in which a private
organization was obligated to adhere to First Amendment principles when
creating or operating a private forum.
> On the other hand, I think there has been
> litigation over the issue of a forum provider of some sort taking
> on the duty to keep certain inappropriate materials off of that
> service or forum and the consequences of failing to do so on
> some occassions. I'm sure there's someone else out there better
> qualified to discuss that point than me.
There have been three such cases that I am aware of; CompuServe v. Cubby,
Prodigy v. Stratton Oakmont and the third I mentioned earlier, Zeran v.
America Online. All three are libel cases.
CompuServe and Prodigy cases were both decided prior to passing of the
Communications Decency Act. In the CompuServe case, the ISP was not held
responsible for libel because there was no indication that CompuServe
exerted any editorial control over content. Prodigy, on the other hand,
did exert editorial control over content and was found responsible for
libelous comments made by a third party. The Prodigy case was eventually
settled out of court during the appeals process.
In Zeran, the court ruled that the Communications Decency Act preempted
any action against the ISP for libel statements made by a third party. The
U.S. District Court ruling was made in March 1997. I don't know whether
its been appealed. The CDA seems to specifically protect ISPs that are not
involved in creation of disputed content.
David NL Day
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