Chatting up a Storm: Noah V. AOL Time Warner and Extending Federal Civil Rights Liability to Internet Chat Rooms
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CHATTING UP A STORM° NoAH v. AOL TME WARNER ANDm EXTENDING FEDERAL CIVIL RIGHTS LIABILITY TO INTERNET CHAT ROOMS Peter M. McCamman Many people today view the Internet as an inte- tempted to sue America Online ("AOL") for vio- gral part of everyday life. Online shopping, e- lating Title II of the Civil Rights Act ("Tide II") by mailing friends, even filing electronic tax forms failing to remove hate messages in their Islamic demonstrate the Internet's growing influence in topic chat rooms. 7 The court ultimately rejected transforming societal habits around the world. As this argument,8 holding that chat rooms do not the Internet continues to break barriers in tradi- constitute a physical "place of public accommoda- tional notions of communication, disagreements tion under Title II."'9 It also found that the Com- emerge on how best to regulate this developing munications Decency Act of 1996 (the "CDA") medium.' Indeed, some of the hot communica- gave Internet Service Providers ("ISPs"), such as tions topics today (e.g., online privacy, copyright, AOL, "publisher" immunity from the potentially 2 spam) center on the debate between preserving libelous messages of its members. 10 the Internet's unfettered nature and imposing Noah raises a fundamental issue of whether In- 3 greater government oversight. One of the most ternet chat rooms should "escape" federal regula- challenging questions courts now face concerns tion simply because of their non-physical charac- the Internet's exact legal definition. 4 Does it con- teristics. Some suggest that this serves as bad pre- stitute a mere collection of wires and processors cedent, since laws like the Civil Rights Act enforce or an actual, tangible location subject to tradi- against a particularly divisive social evil-racial 5 tional federal and state laws? discrimination.' Others disagree with this inter- Noah v. AOL Time Warne,6 represents a good ex- pretation and point to our nation's traditional ample of this dilemma. Here, a plaintiff at- protection of free expression and the dangers of ' See, e.g., Reno v. ACLU, 521 U.S. 844 (1997) (evaluating Supp.2d 1312, 1315 (S.D. Fla. 2002) (discussing the question the constitutionality of certain provisions of the Communica- of whether an Internet website could be defined as a "place tions Decency Act in the Internet setting); Zeran v. Am. On- of public accommodation" under Title III of the Americans line Inc., 129 F.3d 327 (4th Cir. 1997) (holding that §230 of with Disabilities Act). the Communications Decency Act granted AOL publisher 6 261 F. Supp.2d 532 (E.D. Va. 2003). immunity from defamatory third party postings on its mes- 7 Id. at 535 ("Plaintiff alleges that although he reported sage boards). every one of the alleged violations to AOL, AOL refused to 2 See generally, Michael Totty, E-Commerce (A Special Report): exercise its power to eliminate the harassment in the 'Beliefs Taming the Frontier: The Internet Was Going to be a Place Without Islam' and 'Koran' chat rooms."). Rules, Without Borders; A Place Where Anything Goes; Well, Guess 8 Id. at 537. What?, WALL ST. J., Jan. 27, 2003, at RIO (describing how 9 Id. at 545. ("Although a chat room may serve as a vir- both the government and private sector are trying to regulate tual forum through which AOL members can meet and con- commerce and protect consumers in the "freewheeling" In- verse in cyberspace, it is not an 'establishment' under the ternet environment). plain meaning of that term as defined by the statute.") (em- 3 See Doe v. Am. Online Inc., 783 So.2d 1010, 1013 (Fla. phasis in original). 2001) (deciding whether the Communications Decency Act 10 Id. at 537-38 (holding that "while parties that post in- of 1996 pre-empts Florida law in holding an Internet Service formation in Internet forums remain accountable under all Provider liable for distributing defamatory messages). applicable federal and state laws, they cannot be reached in- 4 See e.g.,-United States v. Am. Library Ass'n Inc., 539 U.S. directly through the imposition of liability on the ISPs that 194, 204-08 (2003) (describing the difficulty in applying ei- serve as intermediaries in posting the information."). ther "traditional" or "designated" public forum analysis to In- " See id. at 539 n.5 (pointing to Mr. Noah's argument ternet access in public libraries). that granting ISPs immunity from Civil Rights Laws is "bad 5 See Access Now Inc. v. Southwest Airlines Co., 227 F. policy"). COMMLAW CO NSPECTUS [Vol. 12 imposing content discrimination to satisfy the missing Noah's complaint. Part III provides an "views of the majority. '12 Finding the balance be- analysis of the court's argument and demonstrates tween these two competing arguments poses a dif- how public accommodation law, the CDA, and ficult challenge, especially when applying this First Amendment principles all prevent Title II li- problem to the metaphysical chat room environ- ability. Finally, Part IV concludes by offering both 13 ment. predictions and possible solutions to the ongoing This Note argues that the Noah opinion cor- debate. rectly refrained from applying Title II to the chat room environment. Although chat rooms closely I. STATUTORY AND LEGAL resemble traditional Title II outlets of societal in- DEVELOPMENTS PRIOR TO NOAH teraction, they still do not adequately fit into the statutory definition of a physical "place of public Understanding Noah v. AOL Time Warner re- accommodation."1 4 In addition, applying tradi- quires a basic knowledge of the three main issues tional Civil Rights laws in this particular case may presented in the case. Section A begins this over- be inappropriate.1 5 Since Congress passed Title II view by describing Title II of the Civil Rights Act in a different place and time,1 6 lawmakers could and the subsequent legal interpretations of a never account for the development of new, freely "place of public accommodation." Section B ana- accessible platforms like Internet chat rooms or lyzes the CDA and illustrates how its language grants ISPs a broad liability loophole regarding the1 7 subsequent legislation designed to protect it. the online chat room postings produced by its More importantly, imposing hate speech cen- members. Finally, Section C examines the legal sorship duties on ISPs raises freedom of speech history of hate speech and how the First Amend- concerns, as chat rooms now represent a valuable ment affects the government's ability to censor forum for the public exchange of ideas."' While these statements. private ISPs are free to censor postings on their 19 own, forcing them to do so through government A. Title II of the Civil Rights Act regulation may amount to an unconstitutional 20 form of content regulation. In 1964, Congress passed Title II of the Civil Part I of this Note summarizes the relevant legal Rights Act, which attempted to stop the wide- history leading to Noah's decision and describes spread practice of excluding African-Americans the statutory interpretations applying to chat from access to public areas. 21 Daniel v. Pau2 2 best rooms. Part II gives a brief overview of Noah v. summarized Title II's purpose by recalling Con- AOL Time Warner and the court's rationale for dis- gress's intent of "remov[ing] the daily affront and 12 See R.A.V. v. City of St. Paul, 505 U.S. 377, 391-392 17 See id; see also discussion infra Part III.B, which de- (1992) (holding that a facially overbroad hate speech ordi- scribes how the Internet's open accessibility to anyone with nance could not overcome the First Amendment's provisions Internet access tends to disprove the "discriminatory intent" simply because it enforced the majority's disapproval of ra- necessary for a valid Title II claim and how the CDA grants cially discriminatory hate speech). ISPs immunity from suits dealing with third party postings. 13 See Noah, 261 F. Supp.2d at 544-45 ("Although a chat 18 See Noah, 261 F. Supp.2d at 540 (citing Zeran v. Am. room or other online forum might be referred to metaphori- Online Inc., 129 F.3d 327 (4th Cir. 1997) by discussing the cally as a 'location' or 'place,' it lacks the physical presence CDA's role in balancing free speech with the enforcement of necessary to constitute a place of public accommodation federal laws); see also R.A.V. v. City of St. Paul, 505 U.S. 377, under Title II."). 391 (1992) (holding a municipal "fighting words" ordinance 14 See id. at 540-45 (discussing the statutory language and facially invalid since it served as an impermissible form of subsequent case law, all requiring a "physical" facility for a content regulation). valid Title II claim). 19 See Cyber Promotions, Inc. v. Am. Online Inc., 948 F. 15 See Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1270 Supp. 436, 437 (E.D. Pa. 1996) (holding that a private ISP (7th Cir. 1993) (holding that Title II did not apply to mem- did not violate a plaintiff's free speech rights by restricting bership organizations not associated with physical facilities their e-mails because ISPs were not State actors). and that the statute was not designed to "regulate a wide 20 See discussion infra Part III.C.1 (arguing that the spectrum of consensual human relationships"). forced censorship of protected hate speech not meeting 16 See David Hudson, AOL Wins in Chat Room Suit, 2 Chaplinsky's "fighting words" test may be an inappropriate No.22 A.B.A. J. E-REPORT 2 (2003) (quoting Robert O'Neil, form of government-sponsored content regulation).