The Internet as a Public Forum

In Wednesday’s class’s discussion, we talked briefly about the Internet as a public forum. While we agreed (for the most part) that the Internet as accessed from a library was not protected by public forum principles, it may deserve such protection under other circumstances. According to US v. American Library Association, Inc., a traditional public forum is a resource which has

… immemorially been held in trust for the use of the public and, time out of mind, … been used for purposes of assembly, communication of thoughts between citizens, and discussing public questions.

where a designated public forum requires that

the government … make an affirmative choice to open up its property for use as a public forum … The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional form for public discourse.

Since our discussions on trespass to chattels in regard to Internet servers, we have been plagued by the question of whether a website is a chattel or a piece of real property. While we never completely settled this dichotomy, the fact that the servers on which sites are hosted are physical objects seemed to override any claims to trespassing in cyberspace (a term which seems to carry little legal credence). It seems obvious that a chattel cannot serve as a forum, as a chattel offers no location at which to carry out actions appropriate for a forum. However, while the servers which comprise the Internet may be insufficient to be considered a forum, the Internet as a whole may be considered greater than the sum of its parts by virtue of its ability to act as an publicly accessible means of communication.

Before considering this application of the term forum to the Internet, several issues need to be resolved. First, one must consider that the Internet is highly commercialized, and a large portion of Internet servers and service providers are privately owned, thus making them unsuitable as elements of a public forum; however, the information distributed by those servers (if not restricted by some affirmative means of entry control) is publicly available, and thus expression by way of the Internet becomes a public resource. Additionally, the Internet has not necessarily … immemorially been held in trust for the use of the public (US v. ALA). This requirement for classification as a public forum may be inappropriate when applied to the Internet, as the sheer number of individuals who are able to make their voices heard via the Internet seems to outweigh the need for a longstanding tradition of forum-specific activity. I feel quite confident in presuming that the Internet has been more …used for purposes of assembly, communication of thoughts between citizens, and discussing public questions… (US v. ALA) than some real public forums. Finally, the fact that the Internet is not government property may make it difficult for it to attain forum status. But while the government may not own the Internet as a whole, it has displayed a significant interest in the Internet’s continuation (such as in the continuing contract between ICANN and the D.o.C.) and is directly involved with the Internet in its maintenance of government administered web servers. The Internet may not be government property, but the government’s contributions to the Internet may suffice to allow the application of forum status.

The growing number of blogs and ease by which users may host websites through which they express (and discuss) their opinions on public questions seems to make the Internet an ideal public forum. Take as an example of forum-like activity occurring currently the Frist Filibuster - this protest has been accompanied by a live web cast, and, by publicizing information on the demonstration through the Internet, has been able to gain attention in other forms of media. The Internet has provided a means by which members of the Princeton community can draw attention to this particular question of public interest (i.e. the filibuster preventing certain republican judicial nominations from being approved) so it can be widely can be widely heard and discussed. As such, should free speech on the Internet not be protected as if it were a public forum?

While it is understandable that the locality of an Internet access point (i.e. a library) and the interests pertaining thereto may override protection of free speech (it may be best that rights of a forum accessed from a place which is explicitly not a forum give way to the welfare of the non-forum), it is important to recognize that the Internet has, in an incredibly short period of time, taken on this role, and deserves all possible protection for free speech.

Leave a Reply

You must be logged in to post a comment.