Online terms of service: a shield for First Amendment scrutiny of government action.

• Author: Fradette, Jacquelyn E.

INTRODUCTION

In Red Lion Broadcasting Co. v. FCC, (1) the Supreme Court of the United States declared that the purpose of the First Amendment of the United States Constitution is "to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail." (2) Broadly speaking, courts have understood that they were preserving this marketplace of ideas primarily in the face of government interference. (3) The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." (4) That language invokes the colloquial image of the quintessential speaker in America: a person standing on a soap box in the town square speaking her mind into a megaphone with Congress restrained by the text of the First Amendment and unable to interfere. Partnered with this image is the idea of common, public, and shared spaces where people are concentrated and, thus, become the audience for the paradigmatic speaker.

Advances in technology have shaped the way that citizens "speak," both to the polity at large and to one another individually. As each development in media technology arises, it brings with it many benefits, such as expanding the scope of one's audience and the ability to target a narrow, yet specific, audience more precisely. The move to new media platforms for speech--Twitter, (5) Facebook, (6) BlogSpot, (7) YouTube, (8) and others--has changed the legal landscape that protects such speech because speakers are largely no longer operating in public or in publicly owned spaces. Instead, by using Internet forums for their expression, modern speakers are communicating in a forum that is governed by contract. (9)

Internet users, however, by and large still have the impression that they have the same constitutional protections when speaking on the Internet that they do in the proverbial town square. (10) In some circumstances that intuition is correct. The government cannot pass legislation limiting speech on the Internet, without such legislation being subject to constitutional scrutiny. (11) In addition, government actors cannot escape scrutiny for firing someone in retaliation for speech made on the Internet. (12) Many of the same limitations on government action that exist in real space also exist on the Internet. (13) But those popular intuitions are incorrect in two main ways. First, many consumers and media commentators believe that when an Internet speech forum provider, like Google or Twitter, interferes with or limits their speech, the forum provider has infringed upon their First Amendment rights. (14) Second, users believe that Terms of Service agreements only affect their relationship to the Internet speech forum provider. (15) While it may be formalistically true that a contract only affects the rights of the two contracting parties, in practice these Terms of Service contracts may have wider reaching consequences. Users by and large do not contemplate that Terms of Service contracts can affect their ability to redress some types of government action against some of their speech acts online.

Part I of this Note will canvas popular opinions and perceptions about First Amendment rights on the Internet using examples of public outcry over recent instances of speech limitation. It will also discuss the state action doctrine generally and how the presence of this doctrine most likely renders certain popular public constitutional intuitions about the First Amendment erroneous.

Part II will provide an overview of how courts have taken an expansive and protective view of private ordering between online parties. It will discuss how courts have developed a robust freedom to contract jurisprudence in the Internet context. Because courts essentially have a presumption in favor of the enforceability of the contract so long as it meets basic formal requirements, it is difficult for users to challenge the Terms of Service between themselves and an Internet speech forum provider substantively or procedurally. Coupled with this doctrinal presumption is an ideological inclination in favor of private ordering on the Internet as the best way for parties to organize themselves to reduce bargaining and transaction costs.

Part III will examine how this robust freedom to contract has affected online speech. Particularly, this Note will discuss the rise of government take-down requests made to Internet speech forum providers regarding non-copyrighted material. This Note will contend that Internet Terms of Service contracts effectively shield the government from constitutional scrutiny of its take-down requests. The fact that users and the government now have to act through the intermediary of both the Internet speech forum provider and its Terms of Service has limited speakers' ability to challenge government action concerning their speech directly.

Part IV will focus on the lasting implications of the Terms of Service regime on speech rights. First, it will argue that the government's use of the Terms of Service as a potential shield from constitutional scrutiny puts the Internet speech forum provider in the position of having to vindicate users' rights on their behalf. Given that the ratifiers of the Constitution likely did not contemplate that one day citizens would need to rely on private companies for this function, this Note will examine whether there are sufficient market incentives in place to ensure that an Internet speech form provider will execute this newly developed responsibility with sufficient transparency and to the extent that users desire. Second, it will argue that the Terms of Service regime in the speech context has created the rough equivalent of the third party doctrine in the privacy context, but with significantly fewer formal limitations on government action. Finally, this Note will propose two solutions to this problem: (1) a statutory regime requiring more legal process in order for the government to make a take-down request to an Internet speech form provider regarding a private citizen's speech; and (2) greater scrutiny of contract terms which will consider the free speech implications of some Terms of Service provisions.

In addressing these arguments, this Note will not focus on Internet speech acts that are subject to copyright law and the Digital Millennium Copyright Act (DMCA). (16) Rather, this Note will consider user-generated speech that does not implicate copyright claims. Additionally, this Note does not focus on speech content that is on a website an individual builds and maintains for herself since in that circumstance there is unlikely to be a Terms of Service contract. It will instead focus on speech such as an originally composed posting on Twitter ("tweet") or Facebook ("status update" or "newsfeed post" or "wall post") or a blog posting hosted by a central blog site such as BlogSpot, etc. The reason for this limitation is to focus on the kinds of speech that the average, technically unsophisticated speaker engages in using popular Internet speech platforms. Most commonly these are social media sites, blogs, and search engines. While copyright issues and speech issues overlap, this Note exclusively focuses on speech issues that do not raise substantial or controlling copyright issues in order to examine the effect of a site's Terms of Service contract on ordinary Internet speech.

1. STATE ACTION DOCTRINE AND PUBLIC FIRST AMENDMENT NORMS

   1. YouTube and the White House Inquiry

      In mid-September 2012 a trailer for a movie entitled "Innocence of Muslims," which was posted to the video sharing website YouTube, sparked some anti-American protests abroad. (17) As reports that the video's anti-Islamic content was inciting these protests increased, the White House contacted YouTube to determine whether the video violated YouTube's Terms of Service. (18) Google, which owns YouTube, responded that the video "was clearly within [YouTube's] guidelines" and thus "will stay on YouTube." (19) YouTube took steps to block access to the video in several countries, most notably India, Indonesia, Egypt, and Libya. (20)

      In the United States, many news outlets picked up the report of the White House's request to have the validity of the video's posting and content reviewed under the Terms of Service. An article on the Politico website reported that many speech activists were deeply troubled by the White House's inquiry. (21) In the article, Eva Galperin of the Electronic Frontier Foundation expressed concern that asking YouTube if the video violated its Terms of Service "sends a message and has a certain chilling effect." (22) Ben Wizner of the American Civil Liberties Union recognized that although "[there is] no indication that the government is questioning the right of these idiots to make that repellent film ... it does make us nervous when the government throws its weight behind any requests for censorship." (23)

      These quotations focus on the symbolic statement of such a request, rather than the legal validity of the government's inquiry. Nevertheless, even a brief look at the user comments section of the various Internet articles on this story reveals a very different sense of the speech implications resulting from the White House's inquiry. Rather than being concerned about a "chilling effect" the inquiry could have, some commenters remarked that the inquiry itself was a limit on free speech. (24) Others thought that so long as the government only inquired into the validity of the video posting under YouTube's Terms of Service, but did not demand that the video be removed, no speech infringement had occurred. (25) Many other commenters were outraged at what they identified as the government's double standard in asking about the validity of this video, but not requesting that other similarly offensive videos targeted at other religious or ethnic groups be reviewed. (26) Some disagreed altogether with YouTube's assessment that the video was permissible under...