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CMPLAW-L  July 1997

CMPLAW-L July 1997

Subject:

Re: Editorial Control and the WWW as Public Forum -Reply

From:

Bryan Carson <[log in to unmask]>

Reply-To:

Internet and Computer Law Association <[log in to unmask]>

Date:

Thu, 31 Jul 1997 10:53:45 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (111 lines)

There was a case in Minnesota last week in which the judge
ruled that although there was no First Amendment right to
free speech in a shopping mall (the Mall of America), there
was a right guaranteed by the Minnesota constitution.
(Disclosure:  I have not seen the case, only newspaper
accounts of it.)  Part of the reasoning was that the mall
was built in part with public funds.  Whether this decision
is upheld on appeal and what its relevence is to other malls
that do not have public funding remains to be seen.

Incidently, the case involved leafleting fur protesters who
were naked.  The mall allowed leafleting for health issues
and that sort of "public service" activity.  The judge ruled
that the mall could not pick and choose what types of speech
it deemed appropriate, but that the mall could institute
valid time, place, and manner restraints.  Since the
protesters were naked, the judge retained the convictions.

For more information, see the Minneapolis Star-Tribune on
Lexis or Westlaw.  I don't know if their websight
(http://www.startribune.com/) has anything.



Bryan M. Carson, J.D., M.I.L.S.
Reference/Computer Services Librarian
Hamline University Law Library
1536 Hewitt Avenue
St Paul, Minnesota 55104
612-523-2063
[log in to unmask]

*********************************************************************
"Knowledge is of two kinds.  We know a subject ourselves,
or we know where we can find information upon it."

                 --Samuel Johnson

*********************************************************************
All opinions expressed are my own and not my employer's.
All original content (c) 1997 Bryan M. Carson.  All rights
reserved.


>>> DAY <[log in to unmask]> 07/30/97 02:41pm >>>
On Wed, 30 Jul 1997, Emily Christensen wrote:

> That is, I wonder if taking action to block a user from
the
> board for a) clearly breaking a law (i.e. invasion of
privacy or
> defamation) or b) breaking a more specific "user
agreement" (i.e.
> excessive profanity) would legally constitute "editorial
control" over
> the bulliten board. The defamation/invasion of
privacy/profanity would
> not be erased or edited, but the user would not have the
opportunity to
> contribute comments at out bulliten board again.
>
The decision in the Zeran case makes "editorial control" a
mute point. The
CDA presumably protects the ISP or forum provider as long as
those
individuals were not involved in the CREATION of the
offending material.
Relying on one case (Zeran) for protection is tenuous, but
for now its all
we've got for the Internet. I am not aware of any related
cases in
traditional media, though I'm sure there are some out there.

2) Is there any legal precedent for claiming privately owned
bulliten
> boards or chat halls as a public forum? The Supreme Court
has stated
> that private property *may be considered* a public forum
(this was over
> the shopping center case, the name of which I would have
to look up).
>
I too had heard reference to a case in which a shopping mall
was
considered a public forum. I've never been able to track
down such a case.
If anyone has a citation, please share it. My First
Amendment references
say private forums don't have to extend First Amendment
principles to
participants.

Also, public forums are created over years or decades of use
for the
purpose of public exchange of ideas. The Supreme Court has
never
automatically extended the public forum designation to new
mediums.

The Internet is a new medium. We are pioneers in this new
medium. It will
take many years of case law before a clear picture of "dos
and don'ts" is
established. Until then, we must traverse a minefield and
try not to blow
ourselves up.

+++++++++++++++++++++++++
David NL Day
[log in to unmask]
+++++++++++++++++++++++++

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