The first few words of the First Amendment are "Congress shall make no law . . . ." The Bill of Rights was originally meant to apply only to the federal government, not to the states or to private organizations.
The Fourteenth Amendment, which says that "No State shall . . . deny any person . . . liberty . . . without due process of law," has been interpreted to apply the protections of the First Amendment equally to state governments. (There's a hot debate about whether this is a historically sound interpretation, but we'll set this aside here.) And courts have also read the First Amendment as applying to executive agencies and the federal courts as well as Congress.
But absent really exceptional circumstances, the First and Fourteenth Amendments do *not* constrain private entities: Private employees, private university, private dinner party hosts, private businesses.
There can be nothing unconstitutional about a private list moderator rejecting your posting to a discussion list, Prodigy editing out your dirty words, or a service provider refusing to let its users put up Nazi-themed Web pages. Only "state action" (which actually includes all government action, including federal action) implicates the constitutional protections.
What if the speech restrictions are imposed by a private actor who is in some way related to the government - for instance, subsidized or employed by a government agency? The rule is that "state action" is present only when the speech restriction is dictated or influenced by the government. Thus,
- GOVERNMENT FUNDING ISN'T ENOUGH: If a private employer restricts what his employees may e-mail, there's no state action, even if the employer gets all its business from government contracts.Qualification: This relates only to rights under the U.S. Constitution. Some state constitutions and state statutes do provide protection against some private speech restrictions. A California law, for instance, generally bans many restrictions imposed on students by private universities.- GOVERNMENT OWNERSHIP OF THE COMPUTER ISN'T ENOUGH: If a public university lets someone set up a moderated discussion list on its computer, and the moderator excludes certain messages, there's no state action, even though the list is on a public computer.
- GOVERNMENT EMPLOYMENT OF THE MODERATOR ISN'T ENOUGH: The fact that a list moderator is employed by the government is not by itself enough: If a public university lets a faculty member set up a moderated discussion list, there's almost certainly no state action, so long as the faculty member's decisions are his own and not dictated by the government.
- GOVERNMENT DICTATION OF SPEECH RESTRICTION IS ENOUGH: But if a public entity has an employee set up a moderated list, and *instructs* the employee to reject any, say, profane or bigoted messages, there is state action (though conceivably, as we'll see below, the government's action might still be constitutional).
authors:
| Larry Lessig | David Post | Eugene Volokh |
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