Online Terms of Service: A Shield for First Amendment Scrutiny of Government Action

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. …