More than 15 years have passed since antilibertarianfeminists declared "pornography" a violation of women's civil rights, allegingthat it demeaned and objectified women. In the 1980s, the antiporn movementenjoyed a lot of publicity and a little local legislative success. But federalcourts quickly struck down antiporn ordinances that classified some sexuallyexplicit speech as discriminatory and offered women private rights of actionagainst the producers or distributors of non-obscene pornographic material. InAmerican Booksellers Association v. Hudnut, the U.S. Court of Appeals for the Seventh Circuit stressed that government officials cannot prohibit speech because they disapprove of its perspective: In America people have a right to suggest that the sexual subordination of women is preferable to sexual equality.
This was an important but limited victory for civil liberty. The modelantiporn law once promoted by feminists did not survive legal challenges, but itsunderlying view of pornography as a civil-rights violation has reframed debatesabout free speech. During the 1990s, the equation of offensive or hateful speechwith actual discrimination successfully infiltrated both the courts and theculture. Popular therapies confirmed that abuse could be verbal as well asphysical because people were fragile and apt to be deeply wounded bywords--especially if they were members of historically oppressed groups, according to the politically correct left. Employment-discrimination claimsinvolving allegations of verbal harassment proliferated; in one notoriousdiscrimination case, Aguilar v. Avis, the California Supreme Court upheld a prior restraint against the use of "derogatory racial or ethnic epithets" by an employee of Avis, the automobile-rental company.
So it's not surprising that a former subscriber to America Online has filed afederal lawsuit complaining that AOL violated his civil rights by not censoringhate speech in a chat room. Long before the September 11 attacks, Saad Noah, aMuslim, charged AOL with ignoring the harassment of Muslims in chat rooms devotedto discussions of Islam and the Koran. He has offered numerous examples ofmoronic epithets and obscenities directed against Muslims, all of which he claimsto have reported to AOL. Noah has a contract claim (in its terms-of-servicecontract, AOL imposes severe restrictions on "offensive" speech). He has alsofiled a complaint under the 1964 Civil Rights Act maintaining that AOL is a publicaccommodation from which he and other Muslims have been effectively excludedbecause of AOL's failure to punish anti-Muslim speech.
Noah's civil-rights complaint will resonate with liberals concerned about"inclusiveness," but it's likely to be greeted skeptically in federal court.Under the Civil Rights Act, the term "public accommodation" has generally beenconstrued to apply to physical facilities or structures. In a 1993 case, afederal appeals court declined to classify the Boy Scouts of America as a publicaccommodation; and in 1995, the U.S. Supreme Court ruled that the Saint Patrick's Day Parade in Boston was not a public accommodation (and could not be prohibitedfrom excluding gays).
Of course, the Civil Rights Act was written before anyone inCongress could even imagine cyberspace. Today, many people can't imagine lifewithout it. Distinctions between virtual and real worlds are diminishing, andit's easy to understand how an AOL chat room might be deemed the equivalent of anactual place. Indeed, this is not the first lawsuit that has tried to hold AOLaccountable as a public accommodation under federal law. In 1999 the NationalFederation for the Blind sued AOL under the Americans with Disabilities Act forfailing to provide adequate access to blind people through special software. (Thesuit was settled.) But if the concept of a virtual public accommodation makessense to denizens of cyberspace or enterprising lawyers, courts may decline toexpand federal laws quite so drastically, leaving the task of creating new civilrights in cyberspace to Congress.
In any case, advocates of Noah's civil-rights claim should note thatthe view of AOL as the proprietor of a public space could be used to expand--notrestrict--the speech rights of its inhabitants. From the perspective of many AOLusers, a chat room may seem more like a public forum than a place ofaccommodation, although current legal definitions of public forums are no morelikely to include AOL than are current definitions of public accommodations. AOLis a private entity, and the application of public-forum law to private spaces iscomplicated and controversial. The Supreme Court has declined to classifyprivately owned, publicly used spaces (like shopping malls) as public forumsunder the U.S. Constitution, although a privately owned mall may be deemed apublic forum under state law because of its public functions.
I know of no cases that have tried to extend public-forum rules to privatelyoperated sites in cyberspace, but I anticipate them. From the perspective of anindividual speaker, media giants like AOL function like bureaucracies,controlling what is effectively public space. And the more public the spacemaintained by AOL, the sharper the conflict between the alleged civil rights ofpeople offended by hate speech and the civil liberties of people speaking.Everyone has a right to walk down a public street, but no one has a right not tobe insulted there.
I imagine that AOL likes to regard this debate about speech as irrelevant. Itconsiders itself neither a public accommodation nor a public forum, and in factit would have relatively little to fear from a civil-rights suit based solely onAOL's current status under federal law. But if Noah is likely to lose on hiscivil-rights claim, he may well prevail on his contract claim. AOL's servicecontract with its users includes a speech code that would please the mostpolitically correct of college administrators. Users must agree to provisionsstating that their accounts are subject to termination if they "harass, threaten,embarrass, or do anything else to another member that is unwanted" or if they"transmit or facilitate distribution" of "racially or ethnically offensive"speech. It would be hard to devise a vaguer, more subjective rule than aprohibition on "unwanted" speech; and I can't imagine why AOL thinks it can orshould save people from ever being embarrassed. But having stupidly imposedextreme restrictions on speech, AOL may be liable for failing to try to enforcethem.
So under AOL's contract, Noah could succeed in establishing his right not tobe offended in a chat room--at the cost of his own right to offend or merelyembarrass anyone else, even unintentionally. It's hard to see this as a victoryfor civil rights. It's hard to imagine how the civil-rights movement might haveprospered with equivalent restrictions on speech. Attacks on Jim Crow laws deeplyoffended a lot of segregationists. Social change can be achieved withoutviolence, but it's rarely polite.
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