The First Amendment in Cyberspace - Unit 5
Eric B. Easton, University of Baltimore School of Law

Unit 1 | Unit 2 | Unit 3 | Unit 4 | Unit 5 | Unit 6


Limits to First Amendment Rights (B)


In the first three units, we examined the scope of First Amendment protection on the Internet, primarily through cases involving pornography. In Unit 4, we looked at the limits on the use of the First Amendment as a defense, a "shield," against punishment and suppression. In this reading, we will look at cases that arguably probe the use of the First Amendment as a "sword." In the first case, Cyber Promotions v. AOL, the plaintiff attempted to use the First Amendment to impose its speech on an unwilling recipient; in the second, AT&T v. Portland, the plaintiff relies on the First Amendment to freeze other Internet service providers out of the broadband market.


Cyber Promotions, Inc. v. America Online, Inc.
948 F. Supp. 436 (E.D. Pa. 1996)

Weiner, J. These cases present the novel issue of whether, under the First Amendment to the United States Constitution, one private company has the unfettered right to send unsolicited e-mail advertisements to subscribers of another private online company over the Internet and whether the private online company has the right to block the e-mail advertisements from reaching its members. The question is important because while the Internet provides the opportunity to disseminate vast amounts of information, the Internet does not, at least at the present time, have any means to police the dissemination of that information. We therefore find that, in the absence of State action, the private online service has the right to prevent unsolicited e-mail solicitations from reaching its subscribers over the Internet.

The cases have their genesis in a letter dated January 26, 1996, in which America Online, Inc. (AOL) advised Cyber Promotions, Inc. (Cyber) that AOL was upset with Cyber's dissemination of unsolicited e-mail to AOL members over the Internet. AOL subsequently sent a number of "e-mail bombs" (1) to Cyber's Internet service providers (ISP).

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AOL has vehemently argued throughout the brief history of these suits that Cyber has no right to send literally millions of e-mail messages each day to AOL's Internet servers free of charge and resulting in the overload of the e-mail servers. Indeed, the court has received a plethora of letters from disgruntled AOL members who object to having to receive Cyber's unsolicited e-mail whenever they sign on to AOL despite repeated attempts to be removed from Cyber's lists. Cyber, on the other hand, has contended that without the right to send unsolicited e-mail to AOL members, it will go out of business.

Recognizing that Cyber's contention that it has the right to send unsolicited e-mail to AOL members over the Internet implicates the First Amendment and therefore is a threshold issue, the Court directed the parties to brief the following issue: Whether Cyber has a right under the First Amendment of the United States Constitution to send unsolicited e-mail to AOL members via the Internet and concomitantly whether AOL has the right under the First Amendment to block the e-mail sent by Cyber from reaching AOL members over the Internet.

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In its Motion for Partial Summary Judgment, AOL contends that Cyber has no First Amendment right to send unsolicited e-mail to AOL members over the Internet because AOL is not a state actor, AOL's e-mail servers are not public fora in which Cyber has a right to speak, Cyber's right to use AOL's service free of charge does not substantially outweigh AOL's right to speak or not to speak, and that AOL's restrictions on mass e-mail solicitations are tailored to serve a substantial interest. Because we find AOL is not a state actor and none of its activities constitute state action, we need not consider AOL's remaining First Amendment contentions.

The First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." The United States Supreme Court has recognized that "the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state." Only recently, the Supreme Court has stated that "the guarantees of free speech ... guard only against encroachment by the government and 'erec[t] no shield against merely private conduct.'"

In the case sub judice, the parties have stipulated that AOL is a private online company that is not owned in whole or part by the government. The parties have further stipulated that "AOL is not a government entity or political subdivision." They have also stipulated that there has been no government involvement in AOL's business decision to institute or reinstitute a block directed to Internet e-mail sent by Cyber to AOL members or subscribers.

Despite these stipulations, Cyber argues that AOL's conduct has the character of state action. As a general matter, private action can only be considered state action when "there is a sufficiently close nexus between the State and the challenged action of [the private entity] so that the action of the latter may be fairly treated as that of the State itself." Recently, our Court of Appeals observed that the Supreme Court appears to utilize three distinct tests in determining whether there has been state action. First, we must consider whether "'the private entity has exercised powers that are traditionally the exclusive prerogative of the state.'" This test is known as the exclusive public function test. If the private entity does not exercise such powers, we must consider whether "'the private entity has acted with the help of or in concert with state officials.'" The final test is whether "'[t]he State has so far insinuated itself into a position of interdependence with ... [the acting party] that it must be recognized as a joint participant in the challenged activity.'"

With regard to the first test, AOL exercises absolutely no powers which are in any way the prerogative, let alone the exclusive prerogative, of the State. In ACLU [v. Reno], this Court previously found that no single entity, including the State, administers the Internet. Rather, the Court found that the Internet is a "global Web of linked networks and computers" which exists and functions as the result of the desire of hundreds of thousands of computer operators and networks to use common data transfer data protocol to exchange communications and information. In addition, "the constituent parts of the Internet ... are owned and managed by private entities and persons, corporations, educational institutions and government entities, who cooperate to allow their constituent parts to be interconnected by a vast network of phone lines." As a result, tens of millions of people with access to the Internet can exchange information. AOL is merely one of many private online companies which allow its members access to the Internet through its e-mail system where they can exchange information with the general public. The State has absolutely no interest in, and does not regulate, this exchange of information between people, institutions, corporations and governments around the world.

Cyber argues, however, that "by providing Internet e-mail and acting as the sole conduit to its members' Internet e-mail boxes, AOL has opened up that part of its network and as such, has sufficiently devoted this domain for public use. This dedication of AOL's Internet e-mail accessway performs a public function in that it is open to the public, free of charge to any user, where public discourse, conversations and commercial transactions can and do take place." Cyber therefore contends that AOL's Internet e-mail accessway is similar to the company town in Marsh v. Alabama, 326 U.S. 501 (1946), which the Supreme Court found performed a public function and therefore was a state actor.

In Marsh, a Jehovah's Witness was convicted of criminal trespass for distributing literature without a license on a sidewalk in a town owned by a private company. The Supreme Court found that since the private company owned the streets, sidewalks, and business block, paid the sheriff, privately owned and managed the sewage system, and owned the building where the United States post office was located, the company, in effect, operated as the municipal government of the town. "[T]he owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State." The Court observed that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." As a result, the Court found state action in "the State['s] ... attempt[] to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town ... " Our Court of Appeals has noted that "Marsh has been construed narrowly."

By providing its members with access to the Internet through its e-mail system so that its members can exchange information with those members of the public who are also connected to the Internet, AOL is not exercising any of the municipal powers or public services traditionally exercised by the State as did the private company in Marsh. Although AOL has technically opened its e-mail system to the public by connecting with the Internet, AOL has not opened its property to the public by performing any municipal power or essential public service and, therefore, does not stand in the shoes of the State. Marsh is simply inapposite to the facts of the case sub judice.

Cyber also argues that AOL's Internet e-mail connection constitutes an exclusive public function because there are no alternative avenues of communication for Cyber to send its e-mail to AOL members. As support for this proposition, Cyber directs our attention to the decisions of the Supreme Court in United States Postal Service v. Greenburgh Civic Ass'ns, 453 U.S. 114 (1981); Lloyd Corp v. Tanner, 407 U.S. 551 (1972) and Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308 (1968). Of these decisions, only the Lloyd decision is helpful to Cyber.

In Greenburgh, a civic association challenged a federal statue which prohibited the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service. The civic association contended that the First Amendment guaranteed them the right to deposit, without postage, their notices, circulars, flyers in such letterboxes. The Supreme Court upheld the constitutionality of the statute, finding that neither the enactment nor the enforcement of the statute was geared in any way to the content of the message sought to be placed in the letterbox. The Court also noted that the statute did not prevent individuals from going door-to-door to distribute their message or restrict the civic organization's right to use the mails. Greenburgh, however, did not involve the issue of whether there was state action. It therefore is inapplicable to the issue of whether AOL's conduct constitutes state action.

In Logan Valley, a case involving peaceful picketing directed solely at one establishment within a shopping center, the Court reviewed the Marsh decision in detail, emphasized the similarities between a shopping center and a company town and concluded that a shopping center is the "functional equivalent" of the business district in Marsh. As a result, the Court held that the picketers had a First Amendment right to picket within a shopping center. Logan Valley, however, was subsequently overruled by Lloyd, supra.

In Lloyd, a group of individuals sought to distribute handbills in the interior of a privately owned shopping center. The content of the handbills was not directed at any one establishment in the shopping center but instead was directed at the Vietnam War. The Court noted that, unlike the situation in Logan Valley where the protestors had no other alternative to convey their message at the single establishment in the shopping center, the protesters in Lloyd could distribute their message about the Vietnam war on any public street, sidewalk or park outside the mall. The Court therefore found that "[i]t would be an unwarranted infringement of property rights to require [the protesters] to yield to the exercise of First Amendment under circumstances where adequate alternative avenues of communication exist." The Lloyd Court went on to reject the individuals' functional equivalency argument, finding that the private shopping center neither assumed the full spectrum of municipal powers nor stood in the shoes of the state, as did the private company in Marsh. The Court held that, "[t]he First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only."

Cyber has numerous alternative avenues of sending its advertising to AOL members. An example of another avenue Cyber has of sending its advertising to AOL members over the Internet is the World Wide Web which would allow access by Internet users, including AOL customers, who want to receive Cyber's e-mail. Examples of non-Internet avenues include the United States mail, telemarketing, television, cable, newspapers, magazines and even passing out leaflets. Of course, AOL's decision to block Cyber's e-mail from reaching AOL's members does not prevent Cyber from sending its e-mail advertisements to the members of competing commercial online services, including CompuServe, the Microsoft Network and Prodigy.

Having found that AOL is not a state actor under the exclusive public function test, we evaluate whether AOL is a state actor under the remaining two tests, i.e., whether AOL is acting with the help of or in concert with state officials and whether the State has put itself in a position of interdependence with AOL such that it must be considered a participant in AOL's conduct. These tests actually overlap one another.

In its Memorandum, Cyber does not specifically argue that AOL is acting in concert with state officials. * * *

Rather, Cyber relies on the "joint participation" doctrine and contends that "AOL's use of the Court to obtain injunctive relief and/or damages [which it seeks in its prayer for relief in its counterclaim] and its assertions of federal and state statutory law, which if applicable to Cyber's activities, would violate Cyber's First Amendment rights."

In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court refined the joint participation test by announcing that courts must ask "first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority; and second, whether the private party charged with the deprivation could be described in all fairness as a state actor." Under the first prong, the inquiry is "under what authority did the private person engage in the allegedly unlawful acts."

In the case sub judice, the parties have stipulated that "[t]here has been no government involvement in AOL's business decisions with respect to e-mail sent by Cyber nor in any AOL decision to institute or reinstitute a block directed to Internet e-mail sent by Cyber to AOL members or subscribers." As a result, Cyber is unable to satisfy even the first prong of the joint participation test.

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Perhaps recognizing the futility of its argument, Cyber contends in its Reply Memorandum that "[i]t is not Cyber's position that the mere filing of an action provides a party with the requisite state action to assert a First Amendment violation. Rather it is the Court's participation with the litigant in issuing or enforcing an order which impinges on another's First Amendment rights. Grandbouche v. Clancey, 825 F.2d 1463, 1466 (10th Cir. 1987)." In Grandbouche, the United States Court of Appeals for the Tenth Circuit stated that the first Amendment "may be applicable in the context of discovery orders, even if all of the litigants are private entities." The Court found government action present as a result of a magistrate's order compelling discovery and the trial court's enforcement of that order.

We are troubled by the Grandbouche decision because it has the effect of creating government action every time a magistrate simply signs, and a trial judge enforces, a discovery order. Therefore, even if this Court had enforced a discovery order (which we have not), we would not follow the Grandbouche decision.

In sum, we find that since AOL is not a state actor and there has been no state action by AOL's activities under any of the three tests for state action enunciated by our Court of Appeals ..., Cyber has no right under the First Amendment to the United States Constitution to send unsolicited e-mail to AOL's members. It follows that AOL, as a private company, may block any attempts by Cyber to do so.

Footnotes:

1. In past submissions, Cyber has stated that AOL's "e-mail bombs" occurred when AOL gathered all unsolicited e-mail sent by Cyber to undeliverable AOL addresses, altered the return path of such e-mail, and then sent the altered e-mail in a bulk transmission to Cyber's ISPs in order to disable the ISPs.


AT&T Corp. v. City of Portland
43 F. Supp. 2d 1146 (D. Ore. 1999)

Panner, J. Plaintiffs AT&T Corp., Tele-Communications Inc. (TCI), TCI Cablevision of Oregon, Inc., and TCI of Southern Washington, bring this action for declaratory relief against defendants City of Portland and Multnomah County, and intervener-defendants U.S. West Interprise America, Inc., GTE Internetworking Inc., Oregon Internet Service Provider Association, and OGC Telecomm, Ltd. Plaintiffs challenge a City ordinance and a County resolution requiring that AT&T allow Internet service providers (ISPs) not affiliated with AT&T to connect their equipment directly to AT&T's cable modem platform, bypassing @Home, AT&T's proprietary cable ISP. Plaintiffs claim that the open access requirement is preempted by federal statutes regulating cable television; violates the First Amendment, Commerce Clause, and Contract Clause of the United States Constitution, and the contract clause of the Oregon Constitution; and breaches the parties' franchise agreements.

The parties file cross-motions for summary judgment. The parties agree that I should treat intervenor-defendants' motion to dismiss as a motion for summary judgment. I grant defendants' motions and deny plaintiffs' motion.

Background

In other communities, plaintiffs offer @Home, a service that gives residential cable subscribers high-speed access to the Internet. "The @Home service comprises a private broadband network and interactive on-line service distributed in part though existing cable infrastructure, using the @Home Network's high-speed national backbone and a cable modem."

The @Home private network transmits to the cable operator's "headend," which is where the operator runs its transmitting equipment. If the open access requirement goes into effect, the headend is where unaffiliated ISPs would install their own equipment to access the cable modem platform.

From the headend, the cable operator transmits through fiber optic cable to fiber nodes, which serve local networks of several hundred houses linked by coaxial cable. Each subscriber receives a two-way cable connection to the @Home network through a cable modem attached to the subscriber's personal computer.

Cable allows much higher transmission speeds than conventional telephone lines:

The cable industry's broadband platform makes cable an optimal medium for transmitting large amounts of digital information - data, graphics, and video - at high speeds. Upgraded cable systems can, depending upon usage conditions, carry data up to 1000 times faster than transmission using dial-up modems over ordinary copper twisted-pair phone lines, and 100 times faster than ISDN (integrated services digital network) phone lines.

According to defendants, a file that would download in about 15 minutes with a 28.8 kilobits-per-second modern could download in about 1 second with a cable modem. Internet connections through cable modems are active whenever a subscriber's personal computer is on, without tying up phone lines.

In June 1998, AT&T and TCI announced their intent to merge in 1999. TCI would become a wholly owned subsidiary of AT&T. As required by TCI's three cable franchise agreements with the City and County, plaintiffs requested approval for the change of control to AT&T.

The Mt. Hood Cable Regulatory Commission (the Commission), which advises the City and County, evaluated plaintiffs' requested change in control. The Commission held public hearings about the mergers effect on local cable service. Representatives of plaintiffs and intervenor-defendants, among others, spoke at the hearings.

Representatives of unaffiliated ISPs told the Commission that the ISPs couldn't compete with @Home's higher speed, wide availability, and relatively low cost. Cable subscribers could access unaffiliated ISPs only through the @Home service at the full retail rate. Few subscribers would pay twice for similar services. The ISPs claimed that they would be driven out of business, eliminating several hundred jobs and costing the local economy $ 20 million.

The Commission found that @Home had no viable competitors in the local retail market for residential Internet access services. The Commission recommended that the City and County regulate AT&T's cable modem platform as an "essential facility" to protect competition. "Essential facility" is a term of art in antitrust law, meaning a facility that competitors cannot practically duplicate and that is otherwise unavailable. A business that controls an essential facility may not exclude competitors without a "legitimate business reason for the refusal."

The Commission intended that the open access requirement allow customers of unaffiliated ISPs to "obtain direct access to their [ISP] of choice without having to pay the full @Home retail rate." Unaffiliated ISPs would not get a free ride on the cable modem platform. They would pay AT&T for access.

On December 17, 1998, the City and County adopted mandatory access provisions:

Non-discriminatory access to cable modem platform. Transferee [i.e., AT&T] shall provide, and cause Franchisees to provide, nondiscriminatory access to Franchisees' cable modem platform for providers of internet and on-line services, whether or not such providers are affiliated with Transferee or Franchisees, unless otherwise required by applicable law. So long as cable modem services are deemed by law to be "cable services," as provided under Title VI of the Communications Act of 1934, as amended, Transferee and Franchisees shall comply with all requirements regarding such services, including, but not limited to, the inclusion of revenues from cable modem services and access within the gross revenues of Franchisees' cable franchises, and commercial leased access requirements.

On December 29, 1998, AT&T rejected the mandatory access provision. On January 7 and 8, 1999, the County and City stated that AT&T's rejection "resulted in a denial, effective December 29, 1998, . . . of AT&T's request for a change in control in the TCI franchises." Plaintiffs then filed this action.

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The issue is whether the City and County have the power to require access to the cable modem platform as a condition of approving AT&T's takeover of the cable franchises.

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First Amendment

Plaintiffs contend that the mandatory access provision violates their First Amendment rights. There is no free speech violation, however, because AT&T volunteered to give cable subscribers access to competing ISPs.

The open access requirement is an economic regulation. It does not force plaintiffs to carry any particular speech. Plaintiffs have not presented evidence that cable subscribers accessing the Internet through AT&T's cable modem platform would associate AT&T with the speech of unaffiliated ISPs.

Even if the open access requirement could be said to affect plaintiffs' free speech rights, the requirement passes the Supreme Court test for reasonableness. See United States v. O'Brien, 391 U.S. 367, 377 (1968); Chicago Cable Communications v. Chicago Cable Com'n, 879 F.2d 1540, 1548 (7th Cir. 1989) ("O'Brien is an appropriate standard-bearer for dealing with questions of local regulation of cable television."). The open access provision is within constitutional power of the City and County, it furthers the substantial governmental interest in preserving competition, the governmental interest is unrelated to the suppression of free speech, and the incidental restriction on free speech is no greater than necessary.


Notes to Unit 5

1. Does the "sword" versus "shield" metaphor really apply here? Could not Cyber Promotions also be characterized as using the First Amendment to shield commercial speech from private censorship, and AT&T as shielding the integrity of a private communicator from government-compelled speech? Is it merely coincidence that neither Cyber nor AT&T prevailed, or is there a principle that connects these two cases?

2. Suppose state action - perhaps a regulation like the one you studied in the previous module on spam - had been found in the Cyber Promotions case. Such a regulation might have been analyzed under the Commercial Speech doctrine, which asks whether the speech in question is false or misleading. If not, the regulation can only withstand First Amendment scrutiny if (1) the government's interest is substantial, (2) the regulation directly advances that interest, and (3) there is a reasonable fit between the regulation and the government's interest. See Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980), and State University of New York v. Fox, 492 U.S. 469 (1989). Would the anti-spam statutes and regulations that you considered earlier withstand that "intermediate" level of scrutiny?

3. Judge Weiner found that AOL had "technically opened its e-mail system to the public by connecting with the Internet," but was not a state actor because it had "not opened its property to the public by performing any ... essential public service." If e-mail is not an essential public service now, might it become so two years from now? AOL has about 17 million subscribers; how large does it have to get to before it can said to be delivering an essential public service?

4. Once Judge Weiner found that AOL was not a state actor, it was not necessary to consider any other First Amendment arguments. If, as suggested earlier, the Supreme Court declared the Internet a public forum, would it change the outcome of this case? What is the relationship between AOL and the Internet for First Amendment purposes?

5. Judge Weiner suggests that, as an alternative avenue for reaching AOL subscribers, Cyber might have posted its advertising on the World Wide Web. How does that compare with unsolicited e-mail as to effectiveness? Must the available alternatives be comparably effective for purposes of First Amendment analysis?

6. In New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court found state action in a civil lawsuit between private parties where "the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press...." Could Cyber show state action on appeal?

7. In Intel Corp. v. Hamidi, the unsolicited e-mail is political, not commercial speech, but the outcome is the same. Indeed, the court expressly follows Cyber Promotions v. AOL in its public forum analysis:


Intel Corp. v. Hamidi

No. 98AS05067 (Cal. App. Dep't Super. Ct. April 28, 1999)

Plaintiff's motion for summary judgment is granted.

Plaintiff has produced evidence that, on six occasions during 1996, 1997 and 1998, defendant Hamidi sent e-mail messages concerning Intel employment practices to over 30,000 Intel employees at their e-mail addresses on Intel's proprietary computer system. Intel has requested that Hamidi stop sending the messages, but Hamidi has refused, and has employed surreptitious means to circumvent Intel's efforts to block entry of his messages into Intel's system.

Intel's e-mail system is part of its general proprietary computer system affording access to the internet. The e-mail system is dedicated for use in conducting business, including communications between Intel employees and its customers and vendors. Employee e-mail addresses are not published for use outside company business. An inference arises from Intel's evidence that Hamidi has been using an outdated employee e-mail address list not released for public use.

Reasonable personal use of the e-mail access to the internet by employees is permitted, but is subject to various restrictions, and communications are expressly not private. The company guidelines regarding e-mail internet and computer use expressly provide that employees have no proprietary interest in any part of the system or its use.

The intrusion by Hamidi into the Intel e-mail system has resulted in the expenditure of company resources to seek to block his "mailings," and to address employee concerns about the mailings. Given Hamidi's evasive techniques to avoid blocking, the self help remedy available to Intel is ineffective.

Trespass to chattels is defined as the unauthorized interference with possession of personal property which causes injury. It can include unauthorized use of personal property. The above referenced evidence is sufficient to meet Intel's initial burden of establishing entitlement as a matter of law to summary judgment. The burden shifts to Hamidi to produce evidence sufficient to raise a triable issue of material fact. As the following analysis indicates, he has not met that burden.

Hamidi, without any explanation as to his source or use of the employee e-mail list, asserts that he is not trespassing because he sends his messages (addressed to individual employees) to "an internet server." However, a trespass may be committed through an agency. Hamidi's employment of someone or something else to gain unauthorized access to Intel's e-mail system does not shield him.

Hamidi further contends that his e-mail messages have caused no injury to Intel's e-mail system. Physical harm to the system is not required. Rather, any impairment in the value to Intel of its e-mail system is sufficient to show injury. Here, the evidence establishes (without dispute) that Intel has been injured by diminished employee productivity, and in devoting company resources to blocking efforts and to addressing employees about Hamidi's e-mails. These injuries, which impair the value to Intel of its e-mail system, are sufficient to support a cause of action for trespass to chattels.

Hamidi finally contends that his messages are protected by the constitutional guarantees of freedom of speech. The federal guarantee of free speech operates against governmental entities, not private parties. Lloyd Corp. v. Tanner, (1972) 407 U.S. 551, 556. Intel is not a governmental entity, and there is no evidence that Intel exercises powers that are traditionally the exclusive prerogative of the state, or that it shares any of the attributes of a company-owned town. Cf. Marsh v. Alabama, 326 U.S. 501 (1946).

Contrary to Plaintiff's contention in its reply papers that Hamidi has abandoned his claim of violation of the California Constitution, the Court finds that his argument (albeit ambiguous in this respect) relies upon both federal and state constitutions. Hence, the Court must rule on the state issue as well. The state guarantee of free speech is broader than the federal. It, for example, protects access to large retail shopping centers that are the functional equivalent to the traditional town center, being open to the general public and having a largely public character. Under the California doctrine, access may be denied where an establishment does not share the characteristics of a large retail shopping center. Thus, constitutional protection is denied where a facility is open only for specific purposes and does not provide an opportunity for the general public to congregate.

The mere connection of Intel's e-mail system with the Internet does not convert it into a public forum. Cyber Promotions v. AOL (E.D.Penn.1996) 948 F.Supp. 436, 442. Hamidi argues that, by allowing some reasonable internet access for employee personal use, Intel has converted its e-mail system into a public forum. But, under both federal and state constitutional law, limited access for specific purposes does not convert private property to a public forum. Nothing about Hamidi's statement that his messages are initially sent to "an internet server" affects this analysis. There is no evidence that the "internet server" to which Hamidi refers functions as a public postal service.

The Court finds that Hamidi's e-mails are not (under either federal or state constitutions) protected speech. (Thus, Hamidi's argument as to state action involved in the issuance of injunctive relief is a non-issue.) Hamidi has made it clear that, unless restrained he will persist in his mass mailings to Intel employees via Intel's proprietary computer system. It is clear that Intel's self-help remedies are insufficient to the task of protecting Intel's property. Intel has met the requirements for issuance of a permanent injunction.


8. Did it matter that Hamidi's e-mail messages about Intel were hostile? Should it matter?

9. In AT&T v. Portland, the court held that the Portland ordinance did not require AT&T to carry any particular speech because there was no evidence that subscribers would associate AT&T with the speech of unaffiliated ISPs. Does that eliminate the compelled speech problem?

9. O'Brien is said to be the appropriate standard for questions of local regulation of cable television. Does that necessarily mean that it is the appropriate standard for a cable company providing Internet access? Does it matter that federal law defines cable modem services as "cable services" for purpose of calculating cable operators' revenues?

10. O'Brien provides for intermediate scrutiny of regulations that only incidentally burdens speech while serving some important, non-speech-related governmental interest. Is that the same as a "reasonableness" standard? Continue to next unit of this module
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