This article considers the tension between free speech rights and private property/contract rights. Neither free speech rights nor private property and contract rights are absolute. Where they intersect in the physical world, confusing legal doctrines usually emerge, such as the U.S. Supreme Court cases addressing private speech at privately owned company towns and shopping centers. Though a bright-line rule has emerged-the First Amendment pertains only to stateactors-the rule provides little prospective guidance because private actors can be characterized as state actors in some circumstances.
In the online world, the speech/rights dichotomy also raises complex issues. Online private actors routinely use their private property (such as computers and networks) to create virtual spaces designed for speech, though speaker access is usually controlled by contract. An online provider exercising its property or contract rights inevitably squelches a speaker's rights. Nevertheless, despite online providers' capacity to exercise their rights capriciously, courts so far have unanimously held that private online providers are not state actors for First Amendment purposes.
With the emergence of virtual worlds, we must once again consider the speech/rights balance. To strike the balance, we must decide if virtual worlds are more like physical world company towns or shopping centers or just another category of online providers. Some commentators, most prominently Professor Jack Balkin of Yale Law School, believe that virtual worlds are different and have argued for limits to a virtual world provider's ability to regulate speech by its participants? This article rejects these arguments, using a recent incident involving Sims Online and Peter Ludlow, to show that virtual worlds are not distinguishable from other online providers. As a result, this article concludes that we should not create special speech rules for virtual worlds.
Speech Showdowns at the Virtual Corral
, 21 Santa Clara Computer & High Tech. L. J. 845
Available at: https://digitalcommons.law.scu.edu/facpubs/73