Freedom of expression in online gaming worlds

In the offline world, we’ve seen this intersection (among other situations) in US Supreme Court cases addressing private speech in cities and private business malls. In some cases, the Supreme Court has said that certain landowners cannot prevent speakers from speaking on their private property. In other cases, however, the landlord’s property rights have trumped the speaker’s right to speak about the property, allowing the landowner to “censor” the speaker.

In the online world, the discourse/rights dichotomy raises equally complex questions. Private online actors routinely use their private property (such as computers and networks) to create virtual spaces designed for speech, although speaker access is usually controlled by contract. An online provider exercising its proprietary or contractual rights inevitably crushes a speaker’s rights. But despite the ability of online providers to exercise their rights capriciously, the courts have so far unanimously held that private online providers are not state actors for First Amendment purposes. In a representative case, AOL might refuse to deliver email messages when a spammer attempts to send spam through the AOL network. In other words, in theory, the courts could do something about providers silencing speech, but they have sided with the providers because the Constitution does not apply in these cases. But how do we distinguish between AOL’s response to spam (which seems correct) and a virtual world’s decision to kick a user out? In both cases, the online provider gets to choose, but we’re tempted to side with AOL on spam and the virtual world providers on everything else. It is that inconsistency that I am trying to address here.

The virtual world industry is flourishing. Millions of users participate in interactive spaces as complex as EverQuest, Second Life, World of Warcraft and The Sims Online. With the rise of these “virtual worlds,” we must once again consider how we balance a customer’s speech with a virtual world provider’s rights to silence speech. To strike a balance, we need to decide whether virtual worlds are more like physical world company cities or shopping malls, or just another category of online vendors.