Revisiting Free Speech on Private Property in the New Information Environment: A
First Amendment Response to the Private Ownership Model
JoAnne Holman
Department of Communication
Purdue University
Revisiting Free Speech on Private Property in the New Information Environment: A
First Amendment Response to the Private Ownership Model
     The utility of government as regulator of telecommunications industries in
the post-Telecommunications Act era has been questioned by proponents of
deregulation and competition.  This paper argues that government has an
important role in formulating the structural policy necessary to ensure system
access to the new communications technologies.  It examines how the doctrine of
free speech on private property provides grounding for policy to ensure users
can access a diversity of information sources and disseminate their own
information to others.
 
 
Revisiting Free Speech on Private Property in the New Information Environment: A
First Amendment Response to the Private Ownership Model
     It is clear that the new information environment will be developed and
promoted by privately owned corporations rather than by publicly owned
government organizations.  The central role of the private sector as the owners
and operators of the new digital broadband networks -- with the enthusiastic
endorsement  of Congress and the White House -- has been clear during the
Clinton administration. [1]  Although the Telecommunications Act of 1996 was
intended to remove impediments to competition between communications media and
to dismantle the regulatory barriers that had prevented telephone companies and
cable television companies from entering each other's businesses, the new law's
effectiveness in achieving these objectives is as yet unproven. [2]  Its
effects, at least in the short term, seem at odds with its intentions, according
to industry analysts, resulting not in competition between industries, but in
conglomeration within industries: "What many thought would actually be
competition and convergence has actually been consolidation."[3]  This
concentration of ownership among networks decreases the opportunities for
potential speakers to find access to the new communications systems.[4]  As the
new communications landscape becomes increasingly dominated by a relatively few
large telecommunications corporations and media conglomerates, fewer voices are
likely to be heard and even less diversity is likely to result from the
traditional media players.[5]  Structural changes in the media and
telecommunications industries mean that the basic assumptions about who will
have the opportunities to create information resources and program content are
circumscribed.[6]  As one independent, public-access videographer observed:
"You're talking about the marketplace, and basically the people who compete in
the marketplace -- the people who are allowed to have access to the marketplace
-- are the people who have the resources (the money) to get them there."[7]
     At the same time that conglomeration has reduced the number of potential
outlets, digital technologies blur the previously distinct demarcations between
the traditional content providers (like broadcasters) and their traditional
audiences, and between content providers as speaker and as content providers as
conduit for the speech of others.  In this new environment, where traditional
consumers of information (audiences) can also become producers of
information,[8] the old differentiation between 'speaker' and 'listener' which
traditionally formed the basis for much First Amendment jurisprudence, is no
longer so obvious or particularly useful.  Despite the television industry's 40
year stranglehold over the means of production and distribution of programming
content, its ability to set the standards which everyone accepts is eroding.
Whereas individuals may have once assumed that only corporations could "make
television" it is now no longer inconceivable for an individual to produce his
or her own multimedia for a Web site or to shoot, edit, and market video
productions independently.[9]  Where once there existed no other models of video
communication as reasonable guidelines, the new digital information and
communications technologies now facilitate such communication.[10]
     In light of new capabilities, users are faced with a question:  Who is
going to produce our culture?  Herbert Schiller, among others maintains that
America's cultural future is in the hands of the likes of Time-Warner, Disney
and General Electric:  "Certainly these are the determining voices in the
current media scene."[11]  Are we going to produce our culture ourselves or are
we only going to consume what other people put out there?  Unfortunately as
cable public access producer Brian Springer points out, "People aren't used to
producing culture.  Culture is consumed instead of practiced . . . television
has always been the great receiver mode."[12]
     These parallel developments -- increased corporate conglomeration as a
result of structural changes in the industries and expanded individual
communications capabilities that result from multimedia and interactive digital
technologies -- have been described as constituting a "challenge to existing
First Amendment paradigms."[13]  While the position of government as
technological innovator and heavy investor in network research and development
remains critical,[14] its utility as a regulator of these new networks
(particularly in the post Telecommunications Act era) has been called into
question by proponents of deregulation and marketplace competition.[15]
     This paper argues that government does have an important and clearly
defined role with regard to structural regulation of the new communications
technologies -- a role grounded in the First Amendment and firmly rooted in the
protection of free expression for all participants in the new information
environment.[16]  The ability of government to ensure system access to the new
information and communications networks is now a primary issue for communication
policy makers and regulators, as new capabilities call into question existing
policy.[17]  "The unanswered question is [how to] balance the First Amendment
interests of the owners of the new communications networks against the interests
of the individuals, groups and organizations that will seek to access their
technology."[18]  The answer to this pressing question is unlikely to be found
in established communications policy. Existing regulatory models (premised on
the particular characteristics of a given technology or on analogy to existing
telecommunications technologies[19]) do not prove helpful in formulating new
policy for an information environment that is amorphous and changeable and
difficult to define or even describe.
     The objective of this paper is to examine how the First Amendment doctrine
of free speech on private property can provide grounding for new structural
policy in light of this new environment -- particularly for policy to ensure
that end users have access to both a variety of information sources as well as
access to the means of disseminating their own information to others.
The public sphere in the new information environment
     Jurists and scholars have repeatedly emphasized that social discourse in
the public sphere -- particularly political discourse -- is a necessary
component of a democracy:  "the vital fluid of a free, participatory
society."[20]  Certainly the need to protect freedom of speech and ensure that
opportunities exist for those who would speak to freely express their ideas is
essential.  This is necessary not only to sustain an informed electorate, but as
Thomas Emerson wrote, to provide for participation in the decision-making
process: "The right of all members of society to form their own beliefs and
communicate them freely to others must be regarded as an essential principle of
a democratically organized society."[21]  If freedom of speech can be cast as a
positive right,[22] it follows that a strong government interest exists in
protecting speech freedoms where people congregate.  Free speech rights are
illusory if people are prevented from expressing themselves and carrying on
reasonable debate where they gather.  "Unless there's some public sphere that
really is public -- which people can access easily and in which they're free to
say whatever they want to say . . . then it isn't really public access.  But if
it's possible to entertain, in this public sphere, the range of ideas that
exists in our society, then it's fine if some of it is foolish or boring, or not
particularly well edited."[23]  Perhaps Justice Thurgood Marshall summed it up
most succinctly:  "When there are no effective means of communication, free
speech is a mere shibboleth."[24]
     And while it is tempting to look back on halcyon days of robust political
debate during the eighteenth and nineteenth centuries, when voters congregated
in town halls across America, and suggest that the new information and
communications technologies will revive widespread interest and participation in
the public sphere,[25] such a conceptualization would be a mistake.  Michael
Schudson, for example, cautions that any 'golden age' of critical and rational
discourse in American political culture is less likely to be resuscitated by new
communications technologies than by a series of extraordinary political
events.[26]  This is not to say that a vibrant public sphere is undesirable or
unattainable.  However, the development of the public sphere has so far not been
well served by such external sources of political and cultural information as
the commercial media -- a model of journalism that some observers criticize for
failing to provide "mobilizing information" (information that could foster
political activity among its readers and viewers) while focusing instead on
developing a market for its products.[27]  It is perhaps in this respect that
the new communications and information technologies can make a contribution
towards reviving Tocqueville's notion of media as creators of associations or
communities, rather than creators of markets.[28]  Certainly a functioning
public sphere depends on participants being free not only to express themselves
but also to speak in a setting where others may hear their ideas and opinions.
Lawrence Tribe has aptly summed it up: "If you have free speech but you can't do
it where most people are, you don't have free speech."[29]
     At the end of the twentieth century the most familiar and convenient
location where most Americans gather in large numbers is no longer the village
green, the central marketplace, or the downtown street corners, but rather the
suburban shopping mall.[30]  As such, the status of the mall -- which generally
represents private property -- as a forum for free speech has come under
scrutiny.[31]  As one commentator points out:  "The old notions of what
constitutes a public forum are being reconsidered . . . these forums are being
'privatized' as people increasingly abandon such public places as the
traditional town square and downtown business district for privately owned or
managed venues."[32]  And if malls have eclipsed the downtowns as the locales
where most Americans spent much of their free time at the close of the twentieth
century, the newest place to congregate as we look to twenty-first century is
cyberspace.
     The judicial doctrine of free speech on private property, which has
developed out of the public forum doctrine,[33] provides policymakers with a
structural framework that does not rely on architectural or technological
characteristics that circumscribe current policy models.  As such, it offers a
means to incorporate First Amendment values and principles in communications
policy for an information environment that is undergoing rapid, far reaching
change with unforeseen results.[34]  This precedent is important during a period
of technological upheaval because it enables us to maintain continuity with both
the values of the past and with specific rules of existing legal doctrine. [35]
As Justice Breyer pointed out in Denver Area Educational Telecommunications
Consortium Inc. v. FCC, "The history of this Court's First Amendment
jurisprudence . . . is one of continual development, as the Constitution's
general command that 'Congress shall make no law . . . abridging the freedom of
speech, or of the press,' has been applied to new circumstances requiring
different adaptations of prior principles and precedents."[36]
 Free speech in the new information environment
     The social places of cyberspace provide the settings for debate,
congregation, and myriad forms of self-expression.[37]  These represent
gathering places for individuals who freely come together to create communities
and to reproduce social worlds [38] -- people with an almost unimaginable range
of political, artistic, educational, and commercial interests.[39]  The exchange
of  electronic mail messages, the continuing discussion on computer bulletin
boards, listservs, news groups and on-line fora; the diverse range of electronic
commerce; and the vast searchable collection of information resources on the
World Wide Web all embody the free-speech attributes of a traditional commons or
village green, where access to resources is available to the widest number of
individuals.[40]  For many users the virtual on-line gatherings via the Internet
supplement (or have already replaced) even the real world fora (like shopping
malls) as accessible meeting places where they can conduct political debate,
find educational opportunities, carry on commerce, and entertain themselves.[41]
Importantly these on-line fora also offer speakers new communications
capabilities that can help foster the conditions needed for a revitalized public
sphere -- one that is open to popular participation and one that encompasses
widespread and rational discourse.[42]
Free speech rights and property rights
     The First Amendment protects against governmental interference with speech.
It does not preclude private abridgment of freedom of expression. [43]  But as
private property supplants public property as the base for community
activity[44] and as privatization of access to public information occurs with
increasing frequency,[45] the restriction of reasonably expressive behavior on
private property has seriously "diminished the validity of the guarantee of free
speech as set forth in the First Amendment."[46]  This is particularly true
where freedom of speech is abridged because access is restricted or denied to
property that serves as a forum for expression.
Public forum doctrine:  The public forum doctrine developed in a series of court
decisions, beginning in the late 1930s.[47]  The doctrine is typically applied
to government-owned property where expression has traditionally been allowed
such as parks and streets.  But the doctrine has also been used to limit
government restrictions on speech in places that do not have the public nature
of a street corner or park.[48]  In some cases a version of this doctrine has
been applied to private property like shopping malls.[49]  In light of private
corporate control of both the new communications networks and the increased
privatization of information provided via those networks, the latter category of
decisions provides a useful theoretical basis for a new policy framework for new
communications technologies.[50]  As the cases below illustrate, the threats to
free speech in the privately owned malls and in the privately owned information
environment are strikingly similar.  These similarities point to a need for a
policy framework that acknowledges that the new interactive, broadband
communications systems represent the new public fora -- and as such will require
safeguards to protect speech freedoms.[51]
     In one of  the first cases that the Supreme Court heard concerning an
individual's freedom to exercise First Amendment rights on private property, the
Court ruled that the owners of a company town could not prohibit the
distribution of literature on the sidewalks.  In Marsh v. Alabama[52] the court
held that a privately owned company town was the functional equivalent of a
public business district, with the same protections for speech.[53]  The
governing of a company town by private property interests was clearly a public
function, bringing the restraint upon the distribution of literature on the
streets of the company town within the framework of the First Amendment.  The
case involved a Jehovah's Witness, Grace Marsh, who was arrested for violating
state trespass laws after she had distributed religious literature in the
central business district of a company-owned town in Alabama. [54]  The Court
had to determine to what extent the owners of the town could control its
property and to what extent they could prohibit free speech on that property.
The Court ruled that since the owners of the company town were performing all
the functions of a municipality, they essentially stood in the shoes of the
state with regard to preserving freedom of speech:  "Whether a corporation or a
municipality owns or possesses the town the public in either case has an
identical interest in the functioning of the community in such a manner that the
channels of communication remain free."[55]  With Marsh, the Court initiated the
"public function" state action theory.  This rationale holds that if private
parties carry out inherently governmental functions, these functions may be
deemed public, as if the state itself had performed them.[56]  In Marsh, the
Court also set out two general principles regarding free speech on private
property:  First, when a private property owner opens his land for general
public use, his private property rights are diminished and circumscribed by the
constitutional rights of the invited public; and second, when the rights of
property owners must be balanced against the rights of individuals to exercise
free speech, the individuals' rights "occupy a preferred position."[57]  Justice
Hugo Black wrote:
     Ownership does not always mean absolute dominion.  The more an owner,
     for his advantage, opens up his property for use by the public in general,
     the more do his rights become circumscribed by the statutory and
     constitutional rights of those who use it.  Thus, the owners of privately
     held bridges, ferries, turnpikes and railroads may not operate them as
freely
     as a farmer does his farm.  Since these facilities are built and operated
     primarily to benefit the public and since their operation is essentially a
p
     ublic function, it is subject to state regulation.  And, though the issue
is
     not directly analogous to the one before us, we do want to point out by way
     of illustration that such a regulation may not result in an operation of
     these facilities, even by privately owned companies, which
unconstitutionally
     interferes with and discriminates.[58]
      The court also emphasized the need of citizens in a democracy to have
access to uncensored information in order to make informed decisions.  In
language that Michael Myerson suggests could well pertain to the users of
telecommunications networks today, Justice Black stated:
     [The residents of company towns] are free citizens of their State and
     country.  Just as all other citizens they must make decisions which affect
     the welfare of community and nation.  To act as good citizens they must be
     informed.  In order to enable them to be properly informed their
information
     must be uncensored.  There is no more reason for depriving these people of
     the liberties guaranteed by the First and Fourteenth Amendments than there
is
     for curtailing these freedoms with respect to any other citizen.[59]
Access cases:  In the intervening half century since Marsh, the shopping mall
and the corporate business complex have supplanted the company towns and the
streets and parks of municipalities as public areas where people congregate.  In
these new gathering places private property rights exist in tension with First
Amendment rights of free speech.
     In 1968, in Food Employees Union v. Logan Valley Plaza the Supreme Court
compared the shopping center to the company town and found them strikingly
similar with regard to free speech protections.[60]  The extent of the public's
invitation to the property was identical, and therefore the speakers' access to
both areas could not be denied.  The issue in this case was whether the owner of
a privately owned shopping center could prohibit certain persons from picketing
a supermarket located in the shopping center.[61]  The Court found that a state
trespass law could not be applied to prohibit picketing.   Justice Marshall
wrote in a majority opinion that such laws could not be applied on the grounds
that picketing was an invasion of private property because the shopping center
in this case was "clearly the functional equivalent of the business district of
Chickasaw involved in Marsh . . . [and] the shopping center serves as the
community business block."[62]  The state, therefore, could not exclude the
public from exercising its First Amendment rights by applying a trespass law.
     Based on the purpose and use of the property, the nature and extent of the
public's invitation to enter and shop, and the relation between speech and the
use of private property, the Court said that it was not necessary for the
shopping center to take on all the attributes of a municipality before it could
be regarded as an appropriate forum for individuals to exercise free speech.[63]
The owner, having made his property open to the public -- having invited the
general public onto his property -- could not argue that his privacy or
exclusive possession and enjoyment were impaired by an additional group of
people on his premises conducting an orderly speech activity.  However, the
Logan Valley decision narrowed Marsh by sanctioning only free speech related to
the functioning of a shopping center.[64]  The Court also concluded that there
was no alternative forum for the picketers to convey their message.[65]
     Four years later, in Lloyd Corp. v. Tanner, the Court chose not to protect
the dissemination of information at a privately owned shopping center where the
speech was unrelated to the commercial use of a the property.[66]  Protesters of
the Vietnam War tried to distribute handbills on the premises of a privately
owned shopping center against the wishes of the owners.  The federal district
court in Oregon issued a permanent injunction against the owners, restraining
them from interfering with the distribution of the leaflets.  The Ninth U.S.
Circuit Court of Appeals affirmed, but the Supreme Court reversed.  The Court
concluded that the shopping center did not have all the attributes of a
municipality.[67]  Although the dissenters had pointed out that the shopping
center had its own police force and was zoned as an integral part of the
community, Justice Powell adopted a strict "public function" test.[68]  The
Court compared its 1968 Logan Valley decision and distinguished Tanner on two
factors mentioned in Logan Valley: first, speech activity must be related to the
use of the shopping center, and second there must be no other available forum
for the communicators to convey their messages.  Lacking a close connection
between the speech and the site, a shopping center would not be considered the
functional equivalent of a company town:  "There is no open-ended invitation to
the public to use the Center for any and all purposes."[69]  The distribution of
leaflets in Tanner was declared unrelated to the public's invitation to enter
and shop.  The Court decided the protesters could have used public property to
express their views.[70]
     Justice Marshall dissented.  He pointed out that the shopping center had
its own police force and was zoned by the city of Portland to function as a
public business district.[71]  Marshall also questioned whether the owner was
unreasonably burdened by the speech activity on his property:  "It is undisputed
that some patrons will be disturbed by any First Amendment activity that goes
on, regardless of its object.  But, there is no evidence to indicate that speech
directed to topics unrelated to the shopping center would be more likely to
impair the motivations of customers to buy than speech directed to the uses to
which the Center is put."[72]  Marshall pointed out the need for balance between
the conflicting free speech rights of individuals and property rights of owners:
"We must remember that it is a balance that we are striking -- a balance between
freedom to speak, a freedom that is given a preferred place in our hierarchy of
values, and the freedom of a private property owner to control his property.
When the competing interests are fairly weighed, the balance can only be struck
in favor of speech."[73]  In language that seems to foretell the current
situation for users of the new information and communication technologies,
Marshall insisted: "For many persons who do not have easy access to television,
radio, the major newspapers, and other forms of mass media, the only way they
can express themselves to a broad range of citizens on issues of general public
concern is to picket, to handbill, or to utilize other free or relatively
inexpensive means of communication.[74]
     In 1976 the Supreme Court seemed to overturn Logan Valley.  In Hudgens v.
National Labor Relations Board,[75] the Court decided that reasonable restraints
imposed by a privately owned shopping center was not governmental action and
therefore not constitutionally prohibited.  Picketers at a store at a large
retail mall in suburban Atlanta filed an unfair labor practices charge against
the mall's owner when they were denied the right to picket one of the stores in
the mall.  The NLRB had based its decision on Logan Valley and ruled that the
picketers were entitled to picket because the activity was directly related to
the use of the center.  The Fifth Circuit Appeals court affirmed.
     The Supreme Court reversed.  Justice Stewart termed a "truism" the notion
that the First Amendment protects speech only against state interference.  While
statutory or common law may, in some situations, extend protection against a
private corporation or person who seeks to abridge the free expression of
others, Stewart emphasized that the Constitution itself provides no such
protection.[76]  He then stated that Logan Valley had not survived the 1972
Tanner decision.[77]  Logan Valley had permitted picketing that was related to
the purposes for which the shopping center was used.  Since speech content was
irrelevant to First Amendment decisions (and the Logan Valley decision would
seem to have permitted shopping center owners to prohibit or allow speech on the
basis of its content),[78] the key issue in Tanner had not been content --
rather it was that the Court rejected altogether the notion that a shopping
center is the functional equivalent of a municipality.  As a result the shopping
center would not be governed by the constitutional prohibition against
governmental regulation of the content of speech.[79]
Once again Justice Marshall dissented:
     In Logan Valley we recognized what the Court today refuses to recognize
     -- that the owner of the modern shopping center complex, by dedicating his
     property to public use as a business district to some extent displaces the
     'state' from control of historical First Amendment forums, and may acquire
a
     virtual monopoly of places suitable for effective communication.  The
     roadways, parking lots, and walkways of the modern shopping center may be
as
     essential for effective speech as the streets and sidewalks in the
municipal
     or company-owned town.[80]
     The changes in communications capabilities have resulted from the
implementation of new information and communication technologies along with the
concentration of ownership of telecommunications outlets and transmission
conduit make Marshall's description of mall owners in the mid-1970s germane to a
discussion of structural policy today.  His words could well apply to
telecommunications network owners in the 1990s.  Despite legislation designed to
foster convergence and competition, most residential telephone subscribers in
the U.S. continue to obtain local telephone service (and on-line access) from a
monopoly service provider.  Similarly, the vast majority of cable systems
operate without competition.  Access to these networks is no less essential for
effective speech that the access under scrutiny in  Hudgens.  Marshall
continues:
     "And while the owner of property open to public use may not
     automatically surrender any of his autonomy interest in managing the
property
     as he sees fit, there is nothing new about the notion that the autonomy
     interest must be accommodated with the interests of the public.  As this
     Court noted some time ago, albeit in another context: 'Property does become
     clothed with a public interest when used in a manner to make it of public
     consequence, and affect the community at large.  When, therefore, one
devotes
     his property to a use in which the public has an interest, he, in effect,
     grants to the public an interest in that use, and must submit to be
     controlled by the public for the common good, to the extent of the interest
     he has thus created.'"[81]
     In 1980 the Supreme Court held that the California Constitution protects
the rights of free speech and petition, reasonably exercised in privately-owned
shopping centers.  In Pruneyard Shopping Center v. Robins,[82] the Court found
that the free speech and freedom to petition provisions of the California
Constitution[83] protected a right of access in the common areas of a privately
owned shopping mall.  These fundamental rights "justified reasonable
restrictions on private property rights."[84]
     The case concerned high school students who entered the Pruneyard Shopping
Center and solicited signatures for their petition against a United Nations
resolution condemning Zionism as racist.  The owners, who had traditionally and
strictly enforced a policy prohibiting any visitor or tenant from engaging in
any publicly expressive activity that included the circulation of petition that
was not directly related to the shopping center's commercial purposes, asked the
students to leave.  They students left and brought suit.  The trial court
rejected the students' request to enjoin the owners from denying them access.
The First District Court of Appeals affirmed.  The California Supreme Court
reversed. [85]
     The California Supreme Court decided that property rights must yield to
certain public interests served by such governmental regulations as zoning and
environmental laws.  Since the state had the power to regulate private property
for the public welfare, it could also require shopping center owners to provide
public fora for individuals to exercise free speech.[86]  The court stated that
free speech was a goal at least as compelling as those interests served by
zoning and environmental regulations.  The court also concluded that because of
the importance of the shopping center as a potential public forum, prohibiting
speech activity as a shopping center impinged on constitutionally protected
speech rights.  In the court's view access to privately owned shopping centers
would serve the purposes of enhancing and securing free speech -- a valid state
interest. [87]
     The court then balanced the state's interest in free speech for the public
against the shopping center's owners' interests in controlling use of their
property.  The court concluded that when an owner invites the general public to
enter his property, his interests in exclusive possession and enjoyment of his
property diminish.  On the other hand, the shopping center provides an essential
forum for those exercising free speech rights.  The court ruled that the Tanner
decision had not defined any federally protected property rights; and even if it
had recognized these types of rights, the state of California was free to
regulate shopping malls for the valid state purpose of enhancing and protecting
free speech rights.  The California Supreme Court maintained that it could
interpret the state constitution as requiring public access to shopping center
property for free speech purposes without contravening the Federal Constitution.
     The court did however limit its holding to large shopping centers,
attracting large crowds: "It bears repeated emphasis that we do not have under
consideration the property rights of an individual homeowner or the proprietor
of a modest retail establishment.  As a result of advertising and the lure of a
congenial environment, 25,000 persons are induced to congregate daily to take
advantage of the numerous amenities offered by [the shopping center]." [88]
Further, the public's right to exercise free speech on private shopping center
property was subject to the owner's "reasonable regulations" of time, place and
manner of the protected speech activities.
     The shopping center owners contended that their property rights were
infringed upon under the First, Fifth and Fourteenth Amendments.  They appealed
to the Supreme Court.[89]  The Court rejected these arguments, pointing out that
there was no evidence that the First Amendment activity interfered with the
mall's normal business operations.[90]  The Court also rejected the argument
that Tanner prevented the state of California from requiring the owners of the
shopping center to provide access to persons exercising their state
constitutional rights of free speech and petition if adequate alternative fora
were available.  Since the mall, "by choice of its owner" was not used for
purely personal use but opened to the public, the expressed views of the public
are entitled to protection.[91]
     The Court acknowledged that the right to exclude others is "one of the
essential sticks in the bundle of property rights," but that not every
"destruction or injury to property by governmental action has been held to be a
'taking' in the constitutional sense."[92]  The test for determining whether a
state has unlawfully infringed on a landowner's rights under the 'takings
clause' is whether the restrictions "force some people alone to bear the public
burdens which in all fairness and justice should be borne by the public as a
whole."[93]  In this case, Justice Rehnquist concluded that the owners had not
shown that their right to exclude others was essential to the use or economic
value of the shopping center, so the restrictions imposed by the California
Supreme Court was not a taking.  The owners of the shopping center were free to
establish time, place and manner restrictions on expressive activities.
     The Supreme Court found that California's interest in securing free speech
and petition rights at shopping centers was as fundamental as the owner's rights
to control the use of his property.  It applied a rational basis test:  "Neither
property rights nor contract rights are absolute . . . Equally fundamental with
the private right is that of the public to regulate it in the common interest .
. . the guaranty of due process, as has often been held, demands only that the
law shall not be unreasonable, arbitrary or capricious, and that the means
selected shall have a real and substantial relation to the objective
sought."[94]
     The owners claimed that their constitutional right to free speech would be
impaired if they were compelled by the state to make their property available to
others for the purposes of speech and petition.  They cited cases that proved
that the government could not compel individuals to affirmatively express ideas
against their will[95] or participate in the expression of an ideological
message which they opposed.[96]  The Supreme Court rejected this contention.  By
requiring a shopping center to provide a forum for members of the public to
express themselves, the decision does not require that the shopping center owner
affirm those expressions on its property.  No government-approved view was being
forced on the owners.  The owners were free to disclaim endorsement of any
opinion or idea expressed by members of the public.  Because the shopping center
was open to the public, it was deemed unlikely that any views expressed by a
leafleteer would be confused with those views of the owners.[97]
 Implications of the "access cases" for communications policy
     The Pruneyard decision relied on the government's power to regulate
property for legitimate purposes.  There existed a compelling state interest in
strengthening First Amendment rights.  The state court balanced these rights
against the asserted property rights of the owner of the shopping center and
concluded that property may be regulated by requiring the owners to permit
reasonably exercised speech and petitioning activity on their property.  States
may thus interpret their own constitutions to permit access to speakers on
private property so long as the property owners are neither deprived of due
process of law, nor have their property "taken" without just compensation.[98]
     As a result of Pruneyard, speech in privately owned shopping malls is
protected by the provisions of individual state constitutions.  These
state-level guarantees of free speech can be much broader than federal
guarantees under the First Amendment.  Since 1979 more than a dozen state
appellate courts have confronted the issue of free speech on private property.
A scorecard indicates that advocates for the autonomy of mall owners currently
prevail over supporters of free speech.[99]
     This erosion of rights at the state level is troubling, particularly as new
information and communication technologies expand the individual's potential for
expressive activities.  If, as the access cases described above seem to
indicate, expressive activity can be so readily curtailed by property owners in
shopping malls -- the very locations described by many as the natural sites for
co-mingling and public discourse, as this century's 'new' public fora[100] --
where can free expressive activity safely exist in an era of increased
privatization of formerly public places?  If people do not tend to frequent
traditional public fora, it is reasonable to expect that First Amendment
interpretation ought to adapt to reflect the new circumstances.  In a democratic
society if we wish to avert the atrophy and eventual demise of public
discourse,[101] and prevent its agenda from being set solely by media
conglomerates,[102] it also seems reasonable to ensure that a public forum is
open to all ideas, whether or not those ideas are welcomed by property
owners.[103]
     While private property is said to reflect the social fabric of our society
(and the absoluteness of ownership has long been modified to serve the
collective needs of society at large),[104] there also exists an equally
compelling need to preserve opportunities for free expression and social
discourse, particularly political discourse at the grassroots level.  In an
environment where places and resources (both physical and virtual) that had
previously been seen as public are now privately owned, a new balance would seem
essential.  Andrew Shapiro argues that if the speech that has been largely
silenced on the street corners is not to disappear entirely, private interests
must be prevented from controlling "every square inch of the Net."  Shapiro
articulates his vision of cyberspace using metaphors of community, congregation,
and public spaces, where government intervention to provide a balance is
necessary:  "In the context of censorship [no government interference] sounds
right.  But in the context of ownership, it is wrong." [105]  Curtis Berger
concurs.  He maintains that if social discourse in privatized space is to
survive, self regulation will not suffice.  New law is needed to maintain equity
between conflicting pressures:  "The law's choice becomes apparent: it must
either allow new fora for political expression despite recalcitrant private
ownership or remain silent as the traditional realm for grassroots political
activity withers away."[106]
     A vital public sphere cannot exist in cyberspace if the only discourse that
will enjoy First Amendment protections is that which represent the functional
equivalent of existing 'real world' fora.[107]  If, as in Tanner, speakers in
cyberspace are free to leaflet, but not on private property, where does that
leave them in this privately owned and operated information environment?  Joshua
Meyrowitz observed more than a decade ago that the traditional electronic media
had already lessened the importance of physical space to social discourse.[108]
In the 1990s, logging on to the Internet has been described as the equivalent of
"throwing on a coat and walking to the town square."[109]  The relative
importance of physical fora to public discourse is likely only to continue to
diminish with the emergence of multimedia, interactive information and
communications technologies.  The need for policy, grounded in First Amendment
principles, that both reflects this new sense of place and promotes access to
the systems necessary for participation in that place is obvious.[110]
A doctrine revisited
     In spite of the "mercurial"[111] nature of the judicial decision making
involved, the doctrine of freedom of speech on private property, as manifested
in the shopping center access cases contains useful precedent for policy
designed to protect freedom of expression for both the owners and the users of
the new information technology and communications networks. With respect to the
conditions that would foster First Amendment protections over private property
rights, cyberspace shares many of the same features as the shopping malls,
particularly when viewed in a communications context.  The Internet, for
example, is already a common gathering place that serves multiple purposes for
individual users.  It is without a doubt the functional equivalent of a vast
range of 'real world' information sites.  On-line communities can now provide
the information resources and communication capabilities one would find in any
real world community -- libraries, museums, post offices, clubs, cafes, and
places for debate and discussion.[112]  When examined from this perspective, the
privately owned networks of cyberspace take on many of the fundamental
characteristics necessary for public discourse that were described as essential
in Marsh, and emphasized by Justice Marshall in Logan Valley, and Tanner.
Moreover the similarities between the uses and capabilities of cyberspace and
the uses to which private property "clothed with the public interest" are put
point to new interpretations of the First Amendment -- principally because these
new resources and interactive communications capabilities offer more than simply
new channels for communication, more convenient venues for group meetings, or
old content in a new formats.  These capabilities have the potential to extend
the opportunities for participation in the public sphere to individuals and
groups that were previously absent and traditionally silent.
     Privatization of information and the increasing concentration of ownership
among network providers and Internet service providers[113] brings into sharp
focus the need to protect public fora in the new information commons.  Using an
analogy that is particularly germane to a discussion of access and First
Amendment principles on private property, videographer Chris Hill argues if
there is no public place set aside -- "a kind of electronic public park where
people can say whatever they want and which they can access for free" -- what
will result are 'information malls' which will be developed on the same model as
the shopping mall. [114]  These will look like a lot of  open space, but anyone
who wishes to use these locations is going to have to pay to get into the mall
in the first place, and once there continue to pay to be a vendor.
     Compared to the myriad expressive uses that are possible in the new
information environment, the 'information mall' scenario is extremely
restrictive.  Such an approach limits not only the potential uses of the new
communications capabilities by predicating all activity from a commercial basis,
it also severely constrains who will gain entrance to the environment.  Other
public interest groups have recognized the threat posed by such privatization.
Libraries for the Future, a group dedicated to the preservation of public
libraries, advocates the preservation of an on-line information commons:
"Library advocates have an opportunity to demonstrate the full meaning of the
term 'public space.'  As libraries adapt to new information technologies,
providing users with resources over phone lines, through satellite
transmissions, and by other new means of conveying information, it's important
to fight to preserve space for this non-commercial and educational content.
Public library advocates, who fight to preserve one of the most important public
physical spaces, must also lead the fight for public virtual spaces as
well."[115]
System access:  Access to the traditional mass media systems by potential
speakers has historically been constrained by frequency scarcity [116] and by
economic monopoly.[117]  In an analog world the limited availability of
broadcast frequencies and cable channels meant that not everyone who wished to
speak could have the opportunity to speak.  Audiences had to content themselves
with a limited and pre-sorted selection of programming content.  Owners of the
traditional mass media networks, like cable, have historically protested
requirements that other speakers have access to their systems;[118] and there is
reason to believe that owners of new services, like open video systems, will
resist these requirements as well.[119]  Network owners have argued that they
should remain free to carry programming or other content of their own choosing.
They have further pointed out that access requirements create a favored class of
speakers -- those who have access to the communications media.[120]  It is clear
however that the new digital information technologies and communication
capabilities overcome both these objections to systems access requirements.  The
enormous bandwidth that characterize digital, broadband networks will alleviate
the capacity bottleneck.  On fully switched, interactive communications systems
there will be sufficient 'room' for everyone who wishes to speak.[121]  And
although this expansion greatly increases the number of potential voices that
may be heard in the new information environment, the free speech benefits of the
new communications technologies will largely depend on the widest possible
access for individual speakers to these technologies. [122]  While channel or
frequency scarcity may no longer represent an impediment for potential speakers,
absent policy that ensures that users have access to the system, scarcity of
access opportunities are bound to become a serious barrier to participation in
the new information environment.
     Network owners have also resisted system access requirements on the basis
that such rules resulted in compelled speech.  Owners are unwilling to carry the
messages of a particular speaker or group with whom they disagree; they maintain
it is their right to deny access to their systems for the dissemination of such
messages.  In the history of at least one ubiquitous telecommunications network
however -- the telephone network -- there is no automatic association or
identification in the minds of the general public with the speech carried by a
given network.  At least one commentator points out that a universal access
requirement would further reduce any connection between message and carrier, in
much the same way that the telephone company now is removed from the messages
carried in private telephone conversations.[123]
     By inviting the public to use their property, the owners of
telecommunications networks, to an even larger extent than the mall owners in
the access cases, open their property for the purposes of communication. [124]
The notion of inviting the public to use a telecommunications network, to
subscribe to a communications service, to browse, to retrieve programming
content and other information, to shop on line -- but not to express opinions,
exchange ideas, and debate differences -- is patently absurd, particularly in
light of the new interactive communications capabilities.  Requiring that
speakers use only public property to carry out their expressive activities in a
privately owned environment seems to be the on-line equivalent of an eighteenth
century 'let them eat cake' philosophy.  The public has been invited to use the
nation's telegraph and telephone systems since their inception; communication
has been the very purpose of these networks.  An access requirement simply
extends this purpose.  If the information commons is to flourish, it cannot
exist solely for the personal use of the network owners.
Two-tiered approach:  The solution to the tension between system access for
individuals and an owner's ability to control property lies not in a choice, as
some would characterize it, between totalitarian control or absolute
laissez-faire.[125]  A better approach might be a model that seeks first to
ensure access to the new technologies for the largest possible number of users,
and second to retain "a common space devoted to citizens' speech," [126] while
recognizing the property rights of the private sector.  Allen Hammond sees the
dangers inherent in the prevalence of property rights over speakers' rights:  If
access is continued to be denied on the basis of property, individuals with
"insufficient wealth or [with] an unpopular message may be effectively precluded
from speech."[127]  Without policy and regulatory efforts to alleviate the
imbalance, "small users and individuals would have access and speech rights
solely at the sufferance of the network owner . . . the specter of private
censorship unmediated by government becomes quite real."[128]  Hammond suggests
that regulatory and judicial preoccupation with access to private property by
non-property owners when viewed solely in its non-communications context
obscures the relevant issue with regard to free speech -- particularly the
detrimental effects that the exercise of property rights have on the realization
of free speech rights.  The answer to owners' reluctance to guarantee systems
access lies in a regulatory approach that revisits the doctrine of free speech
on private property -- an approach that combines property rights with a
guarantee of a public forum for individual users.
     A dual-tiered topology for communications media that turns on access
opportunities (from the perspective of the individual user) rather than on the
specific medium and its technical characteristics is one such approach.  Under
this schema the various telecommunications media would be regulated as public
fora, or as private fora that may be opened to the public, or both, depending on
their degree of accessibility and economic dominance.  The amount of industry
competition present would be another useful determinant as to whether a given
medium should be considered a public or private forum.  These designations would
exist apart from the media's actual private or public ownership status.  For
example, where the owner has monopoly control over the network (as with the
telephone network), or where the owner has the economic clout to censor messages
of others seeking access to the means of communication (as with cable networks
and possibly broadcast television), public fora would be designated.  Private
fora would consist of companies that use dedicated or leased facilities to
provide services to specialized users.  These non-dominant companies would
maintain full control over access to their systems and full editorial control of
any speech conducted on their facilities.  The public switched telephone
network, for example, by virtue of its traditional common carrier status -- open
to the pubic on a non-discriminatory basis -- would be regulated like a public
forum, while on-line subscription services which elect to open their services to
the public (but are not required to do so) would be treated as private fora open
to the public.[129]
     This framework also permits owners of networks that have been designated
public fora to operate as information providers over their own facilities (or
those of any other public forum) through a wholly owned but separate subsidiary.
While some observers express skepticism over whether the courts would accept
such a "multifaceted regulatory strategy" -- an arrangement that distinguishes
the role of a network owner as conduit of speech for others and as a provider of
information services (i.e., deeming the same firm a speaker for one purpose but
not for others)[130] -- this reasoning does appear in Justice O'Connor's dissent
in the 1994 Turner decision[131] and in the open video systems rules in the 1996
Telecommunications Act.[132]  While a network provider would be deemed a speaker
when functioning in its proprietary role, its monopoly status might invoke
sufficient governmental interest in providing public access to overcome the
owner's First Amendment interest in asserting editorial control.[133]  In a
setting of near infinite capacity, this would not amount to restricting some
voices in order to enhance others.[134]
Conclusion
     If freedom of speech or expression is important in a democracy, then
speakers must have access to places where people congregate so that the right
may be exercised.  Streets, sidewalks, parks, and other public places have in
the past been readily available as public fora.  In the twentieth century,
socioeconomic changes have shifted the focus of community life from these
traditional meeting places to privately owned fora such as shopping centers and
corporate office complexes.  As we enter the next century, the newest forum for
congregation and debate is the new information environment -- a setting owned
and controlled by the private sector.
     Just as the privatization of public information resources jeopardizes the
tangible and intangible assets of this nation's common resource pool, the
privatization of public space represents a threat to social discourse in the
public sphere.  A vital public sphere requires that speakers are free to express
ideas that are not necessarily compatible with the views of the owners of a
given forum.  If corporations are not to be permitted absolute free rein to set
our social, cultural, and economic agenda, individuals must be free to express
themselves freely and to exchange their ideas and opinions.  The new information
technologies offer this potential.  Policy is needed to extend the opportunity
to participate to everyone who wishes to -- not just those who can afford the
fee or those who are willing to deliver an acceptable and profitable message.
The need for policy to ensure system access to the new information commons is
paramount as more of the information resources citizens need to participate in a
democratic society are made available in digital format and distributed via
privately owned networks.  A participant in the new information commons cannot
simply use public property to carry on a discussion, as the hapless leafleteers
in Tanner were advised to do.
     The Supreme Court has ruled that the rights of free speech and petition on
privately owned property can be protected by individual state constitutions.
The Court has also made clear that private property that performs a substantial
public function nonetheless retains its private characteristics.  In the
conflict between speech rights and property rights, the doctrine of free
expression on private property offers courts a means to balance the rights of
property owners with the right to freedom of expression of individuals.  As many
observers have pointed out, however, when private property bears virtually all
the characteristics and functions of public property, a vital public sphere
depends on the balance being weighted in favor of freedom of expression.
     Despite those who maintain the government should get out of the way and let
the free market system develop the new information environment, government
intervention is essential in any endeavor to ensure the widest possible access
to the information environment. [135]  Even a well-functioning market is subject
to government controls; obviously the government's role is circumscribed with
regard to regulations on speech.  The state may not, for example, restrict
speech on the basis on content.  But a requirement of universal access would not
involve the government dictating a specific message.  The responsibility is
incumbent upon government to regulate the new information environment in a
sufficiently neutral way, to ensure universal access to the new information and
communications systems -- not only to promote a well-functioning democratic
regime, but to ensure that the new communications capabilities succeed in
empowering all segments of society to find, retrieve, create, and disseminate
content in a variety of formats.
 Notes
 
   [1]  See for example, William J. Clinton and Albert Gore, Jr., A Framework
for Electronic Global Commerce, (1 July 1997) at
http://www.iitf.nist.gov/eleccomm/ecomm.htm: "Though government played a role in
financing the initial development of the Internet, its expansion has been driven
primarily by the private sector. For electronic commerce to flourish, the
private sector must continue to lead. Innovation, expanded services, broader
participation, and lower prices will arise in a market-driven arena, not in an
environment that operates as a regulated industry."
   [2]  Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat 56 (1996)
(hereafter Telecommunications Act)..  See for example, Eben Moglen, "The
Invisible Barbecue," Columbia Law Review 97 no. 4 (May 1997): 945; Monroe Price
and John F. Duffy, "Technological Change and Doctrinal Persistence:
Telecommunications Reform in Congress and the Court," Columbia Law Review 97 no.
4 (May 1997): 976).
   [3]  Price Waterhouse, EMC Technology Forecast: 1998. New York: Price
Waterhouse World Firm Services BV, Inc. 1997, quoting Paul Goodstat, EMC Price
Waterhouse Global MCS Co-Leader.
   [4]  See for example, David S. Hilzenrath, "Judge Rules AOL Can Block
Direct-Marketing Firm's Ads," Washington Post (5 November 1996): C01.  The
decision (in U.S. District Court) permits America Online to block unsolicited
electronic mail on its system.  "The decision mean that AOL . . . can enforce
restrictions on speech and behavior when users are communicating over its
computer network."
   [5]  Lance Leibman, "Forward:  The New Estates,"  Columbia Law Review 97 no.
4 (May 1997): 832.
   [6]  The question of whether or not everyone will have equal access has been
described as "the civil rights issue of the twenty-first century."  See Howard
Bryant, "Will There be Redlining in Cyberspace? Black Enterprise 25 no. 12 (July
1995): 47,  quoting Jeffrey Chester, executive director of the Center for Media
Education, Washington D.C.
   [7]  Rick Szykowny, "The Threat of Public Access: An Interview with Chris
Hill and Brian Springer," The Humanist, 54 no. 3 (May 1994): 16, quoting Chris
Hill.  See also Eric L. Richard, "The Jurisprudential Sin of Treating Differents
Alike: Emergence of Full First Amendment Protection for Corporate Speakers,"
Memphis State University Law Review 17 (1987): 218-219 (discussing likelihood
that the speech of individuals will be "reduced to insignificance" by
corporations with the economic resources necessary to communicate in the
political realm.)
   [8]  Reed Hundt, "The Internet: From Here to Ubiquity," Address before the
Institute of Electrical and Electronics Engineers, The Symposium on Hot Chips,
26 August 1997: http://www.fcc.gov/Speeches/Hundt/spreh742.html.  Chairman Hundt
uses the term, 'computer persons' to describe these individuals.
   [9]  The ability to carry multimedia formats on a single broadband conduit is
expected to spur the development of a host of interactive products and services.
See for example Roger Levy, "A-T-M Spells Switching Success," America's Network,
15 November 1994, 68,70.  Levy observes that while fiber optics and better
digital transmission systems have improved network quality, the asynchronous
transfer mode (ATM) switching protocol is ideal for transmitting time-dependent
information such as video and voice, and the broadband signals needed for
multimedia program delivery.  Levy suggests that while entertainment products
such as movies and interactive games may be the initial offerings, this capacity
will ultimately be used for advanced telecommuting.  As information packaging
and delivery become more flexible, small entrepreneurs will find means to add
value to their products and services by tailoring both format and content to
suit groups of users and individual end-users.  See Cyntia N. James Catalano,
"Hit the Malls," Internet World, 7 no. 12 (December 1996): 34,36.
   [10]  For example, multimedia formats make new types of education possible.
Students from elementary school through graduate school now take part in
collaborate learning projects using electronic fora on the Internet, homepages
on the World Wide Web, and video teleconferences.  Eighth-graders in New Jersey
talked with Zlata Filipovic, author of Zlata's Diary: A Child's Life in
Sarajevo, through a real-time Internet relay chat.  See Carol Holzberg,
"Worldwide Encounters," Internet World, 7 no. 9 (September 1996): 81.
   [11]  Herbert I. Schiller, "Challenging the Global Cultural Factories," in
Bill Horrigan and Jason Simon, eds., ROAR:  The Paper Tiger Guide to Media
Activism, (New York: Paper Tiger Television Collective, 1991):
http://www.papertiger.org/roar/chap2.html
   [12]  Szykowny, 17 - 21, quoting Brian Springer.
   [13]  Norman Redlich and David R. Lurie, "First Amendment Issues Presented by
the 'Information Superhighway,'" Seton Hall Law Review 25 (1995): 1448.
   [14]  Office of the Press Secretary, The White House, Background on
Clinton-Gore Administration's Next-Generation Internet Initiative, (10 October
1996) at http://www.iitf.nist.gov/documents/press/internet.htm
   [15]  Andrew L. Shapiro, "Street Corners in Cyberspace: Free Public Forums
Must be Preserved on the Internet," The Nation, 261 no. 1 (3 July 1995): 10.
   [16]  Cass Sunstein terms this the Madisonian tradition which he explains
culminated in New York Times v. Sullivan, 376 U.S. 254 (1964), and the
reaffirmation of the fairness doctrine in Red Lion Broadcasting v. FCC, 395 US
367 (1969).  In Red Lion the Supreme Court suggested that the government's
efforts to encourage diverse views and attention to public issues were
compatible with the free speech principles --- even if they resulted in
regulatory controls on the owners of speech sources.  This tradition has also
received sustained attention in the writings of Alexander Meiklejohn. Cass
Sunstein, "First Amendment in Cyberspace," Yale Law Journal 104 (1995): 1762;
.Moglen, 945; Price and Duffy, 976.
   [17]  Steven Helle, "Essay on the Bill of Rights: Whither the Public's Right
(Not) to Know?  Milton, Malls, and Multicultural Speech," University of Illinois
Law Review (1991): 1086; Steven Miller, Civilizing Cyberspace: Policy, Power,
and the Information Superhighway (New York: ACM Press,, 1996), 259; Allen S.
Hammond, "Regulating Broadband Communication Networks," Yale Journal on
Regulation 9 no. 1 (Winter 1992): 218; Note, "The Message in the Medium:  The
First Amendment on the Information Superhighway," Harvard Law Review 107 (1994):
1093; Redlich and Lurie, 1453.
   [18]  Redlich & Lurie, 1453.
   [19]  New communications technologies tend to be regulated (at least
initially) like the existing technology they most closely resemble.  See Ithiel
de Sola Pool, Technologies of Freedom (Cambridge, MA: Harvard University Press,
1983), 231-248. Using the analogy approach, courts have distinguished telegraph
and telephone, Chesapeake and Potomac Telephone Co. V. Baltimore and Ohio
Telegraph Co. 66 Md.339 (1887), broadcasting and print, Red Lion Broadcasting v
FCC 395 US 367, 388 (1969), cable television and broadcasting, Quincy Cable TV v
FCC 768 F.2d 1434 (D.C. Cir. 1985), and broadcasting and common carriage, FCC v
Midwest Video Corp. 440 U.S. 689, 702 (1979).
   [20]  Berger, 637.  See also Craig Calhoun, ed., "Introduction," Habermas and
the Public Sphere (Cambridge MA: MIT Press, 1992).
   [21]  Thomas I. Emerson, Toward a General Theory of the First Amendment, (New
York: Random House, 1966), 9.
   [22]  In the classical, liberal free speech tradition, typified by the
writings of John Milton, Thomas Jefferson, and John Stuart Mill, the First
Amendment is regarded as a necessary check on government's ability to interfere
with an individual's choice to speak or to receive whatever information he or
she desires.  Thus, the First Amendment has been described as an example of a
"negative freedom" the "freedom from, not a freedom to."  Threats to free speech
might come from many sources, but historically government has represented the
most potent threat to free expression. The concept of "negative freedom" is
described by Isaiah Berlin, Two Concepts of Liberty (London: Oxford University
Press, 1958), 7.  For an explanation of its application to the First Amendment,
see generally and Matthew D. Bunker and Charles N. Davis, "The First Amendment
as a Sword: The Positive Liberty Doctrine and Cable Must-Carry Provisions,"
Journal of Broadcasting & Electronic Media, 40 (Winter 1996): 77-95.  However,
new information and communications technologies are forcing a significant
reorientation involving the First Amendment.  The classic liberal tradition is
challenged, perhaps because it leaves us with a "blind spot" when applied to the
new information environment: "The new media are changing both the movement of
information and the meaning of information in our society.  They do not promise
to restrict communication, but they do threaten the communications environment
that fostered the idea of a law to protect expression.  We may, for example,
have both more freedom, and a more explicit system of regulation.  These are not
necessarily contradictory or undesirable states of affairs, but they are also
not wholly consistent with the way the First Amendment has been considered in
the past." See M. Ethan Katsh, The Electronic Media and the Transformation of
Law (New York: Oxford University Press, 1989), 118 (footnotes omitted).
   [23]  Szykowny, 22, quoting Chris Hill.
   [24]  Lloyd Corp. v. Tanner, 407 U.S. 551, 586 (1972) (Marshall dissenting).
   [25]  Michael Schudson, "Was There Ever a Public Sphere?" in Craig Calhoun,
ed. Habermas and the Public Sphere, 146-147.  Schudson emphasizes Jurgen
Habermas' notion that it is not sufficient to simply vote in a democracy.  A
functioning public sphere requires its participants to also engage in critical
discourse.  Habermas characterized a public sphere as encompassing both
widespread and rational participation.
   [26]  Schudson, 150-160.  Schudson harbors no romantic illusions:  "The
politically oriented riot was a more familiar form of political activity than
learned discussion of political principles."
   [27]  James Lemert, "News Context and the Elimination of Mobilizing
Information: An Experiment," Journalism Quarterly (1984): 243-249, 259., quoted
by Schudson, 152.
   [28]  David Nord, "Tocqueville, Garrison, and the Perfection of Journalism,"
Journalism History 13 (1986); 56-63, quoted by Schudson, 153.
   [29]  John Biewen, "Lawrence Tribe: Public forum and First Amendment
Interview," Morning Edition, (Washington, D.C., National Public Radio, 14 July
1997).
   [30]  Witold Rybcynski, "The New Downtowns: Shopping Malls," The Atlantic,
271 no. 5 (May 1993): 98; James Podgers, "Free Speech in the New Downtowns,"
American Bar Association Journal 81 (April 1995): 54.
   [31]  See below footnotes 43-93.
   [32]  Podgers, 54.
   [33]  Although the actual term "public forum" was not used by the Supreme
Court until 1961 in International Association of Machinists v. Street, 367 U.S.
740, the evolution of the notion of a public place being opened to the public
for speech purposes began in 1897 with Davis v. Massachusetts, 167 U.S. 43
(1897).  The Court unanimously decided that a city was under no obligation to
makes its areas available for use, unless it chose to do so.  In Lovell v. City
of Griffin, 303 U.S. 444 (1938), the Court seemingly reversed its opinion by
striking down an ordinance that would require government permission before
permitting expressions.  By 1939, in Hague v. CIO, 307 U.S. 496, 515 (1939) the
Supreme Court choose to protect speech in public places, pointing out that free
expression requires protection of the means of distribution, as well as the
protection of publication.  See also, Dom Caristi, Expanding Free Expression in
the Marketplace: Broadcasting and the Public Forum, (New York: Quorum Books,
1992), 30-32 and 65-66, and Hammond, "Regulating Broadband Communication
Networks," 235.  While a public forum (e.g., a sidewalk, public streets, or a
park) is one historically associated with free speech. a quasi-public forum is
one created for purposes other than free expression but which has a close
relationship to expressive activity (e.g., libraries Concerned Women for America
v. Lafayette County, 883 F. 2d 32 (5th Cir. 1989).and schools ( Lamb's Chapel v.
Center Moriches Union Free School District, 113 S. Ct. 2141 (1993)).  A private
forum is one where speech can be restricted.  A public forum can also be created
when private property is intentionally opened for public discourse.  See also
Warren Freedman, Freedom of Speech on Private Property, (New York: Quorum Books,
1988), 37.
   [34]  Carl Berger cautions that the slow pace of judicial change might make
common-law solutions to problems of access less appropriate than regulatory
efforts to extend the public forum doctrine, undertaken at the state level.  But
while legislation within each state allows for "custom-tailoring," it also risks
perpetuating the unwieldy regulatory environment that currently characterizes
common carrier regulation in the U.S.  See Berger, 671.
   [35]  Price and Duffy, 996, footnote 79, citing Lawrence Lessig, on the
importance of identifying the values of "pre-existing" doctrine for use in the
context of cyberspace.
   [36]  Denver Area Educational Telecommunications Consortium Inc. v. FCC, 116
S. Ct. 2374, 2384 (1996).
   [37]  Roger A. Lohman, The Commons: New Perspectives on Nonprofit
Organizations and Voluntary Action, (San Francisco: Jossey-Bass Publishers,
1992), 62.
   [38]  See for example, Howard Rheingold, The Virtual Community: Homesteading
on the Electronic Frontier, (Reading, MA: Addison-Wesley, 1993), 39-64.
   [39]  Numerous, diverse and varied fora exist on-line.  See for example,
Austin Texas' Fiber City, a public forum designed to provide information about
the municipality's telecommunications infrastructure at
http://www.88net.net/fibercity/; Vancouver B.C.'s Spectacular State: Fascism and
the Modern Imagination, a public forum which brings together artists, activists,
and scholars to generate critical discussion about the various characteristics
and consequences of fascism in its historical and contemporary contexts at
http://hoshi.cic.sfu.ca/~spec-state/; Alamouna, an Arab Webzine dedicated to
providing a forum for intellectual and uncensored thought at
http://leb.net/alamouna/; the Boston Women's Web, a networking forum designed to
facilitate communication between women living in the Boston area and the
nonprofit organizations that serve them at http://www.bostonwomen.com/; Alaska
Forum for Environmental Responsibility, dedicated to holding industry and
government accountable to the laws designed to safeguard Alaska's environment,
worker safety, and public health at http://www.accessone.com/~afersea/; Voices
of Youth, a site from UNICEF that includes pictures, writings, discussion groups
and interactive resources to provide a forum for youth and educators around the
world to explore global issues such as children's rights, urbanization, war and
on-line learning at http://www.unicef.org/voy/; the Solidarity Network,
(SoliNet) a resource and meeting place for unionists and supporters of the labor
movement. Among the sections available here are international labor news,
documents in the library, and several interactive discussion forums at
http://www.solinet.org/; Solart an on-line gallery designed to give artists who
have difficulty getting showings in traditional galleries a forum for exposure
and feedback.  All artists have world exposure for their work, the opportunity
to sell their pieces, and there is no cost to the artist at
http://www.solart.com/; Religions and Spirituality Forum, a place to share and
explore subjects related to the world's religious and spiritual traditions at
http://www.talkcity.com/religions/; Queer Arts Resources a nonprofit
Internet-based forum for the display and discussion of lesbian and gay content
in the visual arts at http://www.queer-arts.org/; National Network for Immigrant
and Refugee Rights (NNIRR), a national organization composed of local coalitions
and immigrant, refugee, community, religious, civil rights and labor
organizations and activists that serves as a forum to share information and
analysis, to educate communities and the general public, and to develop and
coordinate plans of action on important immigrant and refugee issues at
http://www.nnirr.org/; Military Women, a forum for women in the military to
share their experiences of military  life.  Links to areas such as "What's it
like where you're stationed?" and live conferences at
http://www.Militarywoman.org/.
   [40]  Ason Chervokas and Tom Watson, "New-Media Pamphleteers Revisit The
Roots of the First Amendment, New York Times on the Web: Cybertimes: Digital
Nation (10 October 1997): at
http://www.nytimes.com/library/cyber/nation/101097nation.html.  "All over the
Web there are 'news' sites springing up, some national but many local in nature.
These sites provide local gadflies, government critics and people sympathetic to
their causes an alternative outlet.  Taken together, they paint a picture of a
previously marginalized community of Americans.  While some take an adversarial
stance to the mainstream press, others aim to tell stories that are merely
overlooked -- often community news of an extremely local nature." (emphasis
added).
   [41]  See for example, the National Gallery of Art at http://www.nga.gov/;
Web Museum at http://sunsite.unc.edu/wm/; Callahan's Saloon at
http://www.delphi.com/callahan/; Virtual-Valley, Western Massachusetts' On-line
Community at http://virtual-valley.com/; Virtual Sidney/Shelby County, Ohio at
http://www.erinet.com/sidney/; the Virtual Center Of The Sephardic Community at
http://www.bsz.org/; the Virtual Community of Associations of greater Washington
D.C. at http://www.vcanet.org/vca/abtvca.htm; Virtual Jerusalem at
http://www.virtual.co.il/; Virtual Fest, a self-described virtual community
consisting of "a merry band of crafters, musicians, storyspinners, artisans,
wordsmiths, and magicians," at http://www.VirtualFest.com/; Virtual Film
Festival at http://www.virtualfilm.com/; College Station, Texas, at
http://www.cstx.gov/; Live World, featuring "Talk City," a site for interactive
chat at http://www.liveworld.com/; Elder Web, an on-line community of older
adult computer users, at http://www.elderweb.org/; Phoenix Tea House, the
"virtual Asian American community," at http://www.phoenixteahouse.com/; Virtual
Commons, cyber caf_ production specialists at http://vcommons.com/;  West Ed's
Technology in Education, K-12 distance education examples at
http://www.fwl.org/edtech/k12de.html;  Cyber High School, a private, college
preparatory high school serving students worldwide.  Instruction takes place
over the Internet, using a curriculum specifically designed for students who are
motivated to work independently toward entrance to college, at
http://www.webcom.com/~cyberhi/welcome.html.
   [42]  Calhoun, "Introduction," 4.
   [43]  Michael Meyerson suggests that while the high level of government
involvement in funding telecommunications network research and with the
interconnected characteristics of most privately owned and publicly financed
networks could invoke state action, the state action doctrine is "labyrinth of
competing policies and analyses."  Myerson quotes Laurence Tribe: 'Viewed
doctrinally, state action cases are a conceptual disaster area.'"  Meyerson,
135.
   [44]  Rybczynsky, 101.
   [45]  Miller, 226
   [46]  Freedman, 3.
   [47]  Hague v. CIO, 307 U.S. 496 515 (1939) ("Wherever the title of streets
and parks may rest, they have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.")
   [48]  International Society of Krishna Consciousness v. Lee, 505 U.S. 672
(1992) (A 5-4 decision finding that an airport terminal is a nonpublic forum.)
   [49]  Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035
(1980).
   [50]  For an ironic example of privatization of the Supreme Court's own
materials, see Carl S. Kaplan, "Company Limits Net Access to Supreme Court
Rulings," New York Times on the Web: Cybertimes: Cyber Law Journal:  (17 July
1997) at http://www.nytimes.com/library/cyber/law/071797law.html.  In a
paradoxical footnote to the Communications Decency Act decision which declared
the Internet represented a "new marketplace of idea," Alderson Reporting Co.
Inc., the company that has an exclusive contract to tape-record Supreme Court
oral arguments and prepare and sell official transcripts, has decided to
restrict buyers of the transcripts from posting them on the Web.
   [51]  See for example, Michael I. Meyerson, "Virtual Constitutions: The
Creation of Rules for Governing Private Networks," Harvard Journal of Law &
Technology, 8 no. 1 (Fall 1994): 138; Comment, "The Message in the Medium: The
First Amendment on the Information Superhighway," Harvard Law Review 107 (1994):
1093; Miller, 243-244; Helle, 1093; Redlich & Lurie, 1453; Shapiro, 10;
Rybcynski, 98.
   [52]  326 U.S. 501 (1946)
   [53]  Marsh v. Alabama, 326 U.S. 501, 503, 508 (1946).
   [54]  Prior to Marsh, the Court had stated  that the government could not
absolutely ban free speech activity on public streets or sidewalks.  Hague v.
CIO, 307 US 496 (1939). In Marsh, however, the streets, sidewalks and everything
else in the town was privately owned.
   [55]  Marsh v. Alabama, 326 U.S. 501, 507-508 (1946).
   [56]  Some activities have been held by the Court to be inherently public,
and therefore state action, regardless of who performed them. See for example,
Evans v. Newton, 382 US 296 (1966) where the character of a privately owned park
makes it subject to the Fourteenth Amendment prohibition against racial
segregation.
   [57]  Marsh v. Alabama, 326 U.S. 501, 509 (1946).
   [58]  Id., 506
   [59]  Id., 508-509, quoted by Michael Meyerson, "Virtual Constitutions: The
Creation of Rules for Governing Private Networks," Harvard Journal of Law &
Technology 8 no. 1 (Fall 1994).  The large number of citizens living at that
time in company towns and the preferred position of speech (see U.S. v. Carolene
Products Co, 304 US 144 (1938) at 152-153) made it imperative that the First
Amendment rights be fully guaranteed.
   [60]  Food Employees Union V. Logan Valley Plaza, Inc., 391 U.S. 308, 317
(1968).
   [61]  Id., 315.
   [62]  Id., 318-319.
   [63]  Id., 319.
   [64]  Id., 320, footnote 9.
   [65]  Id., 322.  This conclusion is curious, because to deny a person the
right to speak in one place because they can speak freely elsewhere seems to beg
the question of free speech.  In Schneider v. State 308 US 147, 163 (1939) the
Supreme Court held "one is not to have the exercise of his liberty of expression
in appropriate places abridge on the plea that it may be exercised in some other
place."  Quoted by Justice Marshall in Logan Valley.
   [66]  Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
   [67]  Id., 568-569.
   [68]  The Tanner Court reasoned that the company town in Marsh had possessed
all the characteristics of a municipality.  In Logan Valley the holding was not
dependent on a shopping center being the functional equivalent of a
municipality. Lloyd Corp. v. Tanner, 563.
   [69]  Id., 565.
   [70]  Id., 564-565.
   [71]  Id., 571.
   [72]  Id., 581-582.
   [73]  Id., 580.
   [74]  Id., 580-581.
   [75]   424 US 507 (1976).
   [76]  Hudgens v. National Labor Relations Board 424 US 507, 513 (1976).
   [77]  For a discussion of the access cases as examples of classical liberal
and neoliberal decisions, see Helle, 1092-1093.
   [78]  Justice Stewart stated: "If a large self-contained shopping center is
the functional equivalent of a municipality, as Logan Valley held, then the
First and Fourteenth Amendments would not permit control of speech within such a
center to depend upon the speech's content."  Hudgens v. National Labor
Relations Board 424 US 507, 520 (1976).
   [79]  However as Steven Helle points out, this represents a superficial
reading of state action.  The Court in Marsh v. Alabama 326 U.S. 501, 507
(1946), for example, had noted that the state is not passive if the rights of
property owners are given priority over the alleged rights of speakers desiring
access.  Helle also points out the inconsistency of this decision vis a vis the
1968 Logan Valley decision.
   [80]  Hudgens v. National Labor Relations Board 424 US 507, 539 - 540 (1976).
   [81]  Hudgens v. National Labor Relations Board 424 US 507, 542 - 543 (1976),
quoting Munn v. Illinois 94 U.S. 113, 126 (1877).
   [82]  447 U.S. 74 (1980).
   [83]  California Constitution, art. I, sec. 2: "Every person may freely
speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right.  A law may not restrain or abridge
liberty of speech or press."
   [84]  Pruneyard Shopping Center v. Robins 447 U.S. 74, 87 (1980).
   [85]  Robins v. Pruneyard Shopping Center 592 P. 2d 341 (1979).
   [86]  Id., 347.
   [87]  Id., 347-348.
   [88]  Id., 347-348.
   [89]  James W. McCauley, "Comment: Transforming the Privately Owned Shopping
Center into a Public Forum: Pruneyard Shopping Center v. Robins," University of
Richmond Law Review 15 (1981): 715.
   [90]  Pruneyard Shopping Center v. Robins 447 US 74, 83 (1980).
   [91]  Id., 87.
   [92]  Id., 82.
   [93]  Id., 83.
   [94]  Id., 84-85, (quoting Nebbia v New York, 291 US 502, 523 (1934)).
   [95]  Wooley v. Maynard 430 US 705 (1977) (The 'live free or die' motto on
vehicle license plates can be covered up.)
   [96]  Miami Herald v. Tornillo 428 US 241 (1974) (State cannot tell a
newspaper what to print.)
   [97]  Pruneyard Shopping Center v. Robins 447 U.S. 74, 87 (1980).
   [98]  There would be no constitutional difficulty if one state imposed more
rigorous regulation on property rights than another state, as long as the
supremacy of federal law is recognized, and the state interpretation does not
impinge on a countervailing federal right. Freedman, 39.
   [99]  Besides California, supporters of free speech have prevailed in
Massachusetts: Batchelder v. Allied Stores International 445 NE 2d 590 (Mass.,
1983); New Jersey :New Jersey Coalition Against War in the Middle East v. J.M.B.
Realty Corp., 650 A. 2d 757 (N.J. 1994); Washington Alwood Associates v.
Washington Environment Council 635 P 2d 108 (Wash. 1981); Oregon: State v.
Cargill 786 P. 2d 208 (Ore. 1990); and Colorado: Bock v. Westminster Mall Co.
891 p. 2d 55 (Colo. 1991).  Private property supporters have prevailed in
Arizona: Fiesta Mall Venture v. Mecham Recall Committee 767 P. 2d 719 (1988);
Connecticut: Cologne v. Westfarms Associates 469 A. 2d 1201 (Conn. 1984);
Michigan: Woodland v. Michigan Citizens Lobby 378 N.W. 2 d 337 (Mich. 1985); New
York: SHAD Alliance v. Smith Haven Mall 488 N.E. 2 d 1211 (N.Y. 1985); North
Carolina: State v. Felmet 273 S.E 2d 708 (N.C. 1981); Pennsylvania: W. Penn.
Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Co. 515 A.
2d 1331 (Penn. 1986); Wisconsin: Jacobs v. Majors 407 N.W. 2 d 832 (Wis. 1987);
and Illinois: People v. DiGuida 604 N.E. 2d 336 (Ill. 1992).But see Lance S.
Davidson, "Guidelines for Free-Speech Activity at Shopping Centers," Practical
Real Estate Lawyer (September 1989): 42-43. "Probably one half of the nation's
large shopping malls (guardedly) permit access for defined noncommercial
purposes but under strict controls."
   [100]  See for example, "Demonstrators Have Right to Protest, Leaflet in New
Jersey Shopping Mall," News Media and the Law, 19 no. 1 (winter 1995); Boorstin,
269-273; Berger, 656; Podgers 54; Rbyczynski, 101.
   [101]  Even Schudson, with his iconoclast perspective on history, takes pains
not to discount the importance of a public sphere in a democratic society.
Schudson, 160.
   [102]  "A lot of people don't understand how really limited is the range of
information they're currently getting from television.  They might think they're
getting all the different angles on any particular topic, but that's just a
misconception they have from watching so much television." Szykowny, 22, quoting
Chris Hill.
   [103]  Helle, 1090, Shapiro, 10; Szykowny, 20-21, quoting Chris Hill.
Rybczynski, 101 points out that the owners of shopping malls are usually large
corporations, not individuals.
   [104]  Munn v. Illinois 94 U.S. 113, 126 (1877).  See also Freedman, 38.
   [105]  Shapiro, 10.
   [106]  Berger 661.
   [107]  For a discussion of cyberspace and location, see David R. Johnson,
"Traveling in Cyberspace," Legal Times, (3 April 1995): 26.  See also Comment,
"The Message in the Medium:  The First Amendment on the Information
Superhighway," Harvard Law Review 107 (1994): 1087 for a discussion of discourse
and privacy.  "The balance between speakers' rights and listeners' privacy
depends largely on the forum in which the speech takes place.  The Pacifica
Court (FCC v. Pacifica Foundation, 438 U.S. 726, 765) pictured broadcasting as
an activity that occurs inside the homes . . . however the dissent in Pacific
noted that, 'because the radio is undeniable a public medium [turning on the
radio is] more properly viewed as a decision to take part, if only as a
listener, in an ongoing public discourse.'  Thus, unlike the majority, the
dissent accepted that public discourse can take place outside a physical public
space." (footnotes omitted).
   [108]  See generally, Joshua Meyrowitz, No Sense of Place: The Impact of
Electronic Media on Social Behavior, (New York: Oxford University Press, 1985).
   [109]   "The Message in the Medium:  The First Amendment on the Information
Superhighway," 1087; See also Barry Forbes, "Oxymoron of 'Free' Speech," From
the Town Meeting to the World Wide Web: Creating and Maintaining Democracy in
the Telecommunications Age (31 August 1997) at
http://www.alliancecm.org/acmtaa.htm:  "The days of strolling down to a town
meeting for a spirited debate on public issues is long past. Today, we get
soundbites on entertainment television, thirty-second commercials on complex
issues, call-in talk show harangues, flashy commercial web pages, and flaming
e-mail attachments. In the near future, media and telecommunications will
continue to converge."
   [110]  Access to the new information environment alone, of course, is not the
whole answer.  The need for policy to address questions of universal service,
access to government information, access to information on health care,
employment and education is perhaps even more critical in light of the new
deregulatory language of the Telecommunications Act of 1996, Pub. L. No.
104-104, 110 Stat. 56 (1996).  The issue of universal service is one example of
an area that will require new policy guidelines in a competitive marketplace.
See for example, Kevin Taglang, "Public Interest Advocates, Universal Service
and the Telecommunications Act of 1996," published on-line by the Benton
Foundation, (February 1996), at
http://www.benton.org/Library/Advocates/advocates.html See also Barry Forbes, at
http://www.alliancecm.org/acmtaa.htm:  "Those who believe that open public
discourse continues to be the basis of the American democracy face a dilemma:
how to advance the theory and practice of 'free speech' from the town meeting of
the past to the commercially-driven and technologically-advanced
telecommunications networks of the present?  In order to make this cultural
leap, three basic problems must be solved: Access: People must be connected to
whatever forum provides open public discourse. However, this connection must
provide symmetrical interaction --  allow people to participate in a dialogue
rather than be passive recipients of information and entertainment.Economics:  A
cost-free stroll to the public street corner or public library has been replaced
by buying expensive electronic equipment and telecommunications services.
Although inexpensive to some people, the cost of participating in the new
electronic marketplace of ideas is prohibitive to most people.Knowledge: People
need to know how to use the equipment and telecommunications service, as well as
to understand how to get the most benefit from the 'electronic street corner.'"
   [111]  Helle, 1092.
   [112]  See above, footnotes 31 and 32.
   [113]  Jared Sandberg, "How One Company is Quietly Buying up the Internet,"
Wall Street Journal 99 September 9, 1997): B1.
   [114]  Szykowny, 18, quoting Chris Hill.
   [115]  Libraries for the Future: "Library Advocates Guide to
Telecommunications - Update" (23 July 1997) at
http://www.lff.org/technology/update.html.
   [116]   "Where there are substantially more individuals who want to broadcast
than there are frequencies to allocate, it is idle to posit an unbridgeable
First Amendment right to broadcast comparable to the right of every individual
to speak, write, or publish."  Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
390 (1969); FCC v. League of Women Voters, 468 U.S. 364, 377 (1984): "The
fundamental distinguishing characteristic of the new medium of broadcasting . .
. is that broadcast frequencies are a scarce resource [that] must be portioned
out among applicants."
   [117]  "Even in communities with two or more cable systems, in the typical
case each system has a local monopoly over its subscribers . . . Cable operators
thus exercise 'control over most (if not all) of the television programming that
is channeled into the subscriber's home. . . . [and] can thus silence the voice
of competing speakers with a mere flick of the switch.'" Turner Broadcasting
System Inc. v. FCC 117 S.Ct. 1174, 1190 (1997), quoting Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622, 656 (1994).
   [118]  See for example, Quincy Cable v. FCC 768 F.2d 1434 (1985); Century
Communications v. FCC 835 F 2d. 292 (1987); Turner Broadcasting System, Inc. v.
FCC 819 F. Supp 32 (1993); Turner Broadcasting System, Inc. v. FCC, 114 S. Ct.
2445 (1994); Turner Broadcasting System Inc. v. FCC 117 S.Ct. 1174 (1997).
   [119]  The Benton Foundation and other public interest advocacy groups are
concerned about how the 1996 Telecommunications Act will treat access
requirements: "While operators of 'open video systems' officially would have to
make channels available to competing video programmers and local government and
educational institutions, they effectively could escape this obligation by
charging rates that these groups would find prohibitively high, according to
Barry Forbes, executive director of the Alliance for Community Media.  The law
merely requires that operators of open video systems charge all programmers
rates that are 'not unjustly or  unreasonably discriminatory,' but says nothing
about rates that are excessive."  Benton Foundation, "Seeking Open Video
Platforms," The Telecom Environment: What's at Stake (undated) at
http://www.benton.org/Library/Stake/telecom/platforms.html
   [120]  Turner Broadcasting System Inc. v. FCC 114 S.Ct. 2445, 2466 (1994):
"Appellants urge us to apply strict scrutiny because the must carry provisions
favor one set of speakers (broadcast programmers) over another (cable
programmers).  Appellants maintain that as a consequence of this speaker
preference, some cable programmers who would have secured carriage in the
absence of must carry may now be dropped."
   [121]  Although viewpoint scarcity could, in theory, be eliminated, this
alone does not guarantee a vibrant public discourse.  As Cass Sunstein points
out, even in a universe with infinite communications capacity, it will be easy
to ignore the issues no one chooses to discuss. See Cass Sunstein, Democracy and
the Problem of Free Speech (New York: The Free Press, 1995): 68-69.
   [122]  "The Message in the Medium:  The First Amendment on the Information
Superhighway," 1089.
   [123]  The network owner could also post notices -- on-line and elsewhere --
to make it clear that it did not necessarily share the opinions or ideas that
its network carried. See for example Turner Broadcasting System Inc. v. FCC 114
S. Ct. 2445, 2466 (1994): "Broadcasters are required by federal regulation to
identify themselves at least once every hour, and it is a common practice for
broadcasters to disclaim any identity of viewpoint between the management and
the speakers who use the broadcast facility. (Citing Pruneyard Shopping Center
v. Robins, 447 U.S. 74, 87 (1980),noting that the views expressed by speakers
who are granted a right of access to a shopping center would "not likely be
identified with  those of the owner.").The threat of negative consumer reaction
has also been suggested as a reason for owners to deny access, particularly (as
is the case with large media conglomerates) if the network owner has interests
in other businesses that might be adversely affected by consumer boycotts.  See
"The Message in the Medium:  The First Amendment on the Information
Superhighway," 1089.
   [124]  "The Message in the Medium:  The First Amendment on the Information
Superhighway," 1092.
   [125]  Shapiro, 10.  Shapiro lumps together "terminally wired hackers . . .
cyberwonks at the Electronic Frontier Foundation . . .Newt Gingrich, Al Gore and
other Third Wave lawmakers," as those who would present the situation as such a
false choice.
   [126]  Shapiro, 11.
   [127]  Hammond, "Regulating Broadband Communication Networks," 219.
   [128]  Allen Hammond, "Private Networks, Public Speech:  Constitutional
Speech Dimensions of Access to Private Networks," University of Pittsburgh Law
Review 55 (1994): 1132.
   [129]  Hammond, "Regulating Broadband Communication Networks," 218 - 223.  A
public forum, much like a common carrier, would not be liable for the content of
the speech carried on its facilities.  If private fora interconnect with the
public fora networks, they would be required to make some of their transmission
capacity available to other interconnected firms and users on the public
networks.  Note also that while broadcast and cable television could treated as
quasi public fora, because they are accessible to speakers on only a limited
basis, Hammond suggests that the print media would be private fora, because
print media need never be open to the public.
   [130]  Redlich and Lurie, 1454.
   [131]  "Congress may also be able to act in more mandatory ways.  If Congress
finds that cable operators are leaving some channels empty-perhaps for ease of
future expansion-it can compel the operators to make the free channels available
to programmers who otherwise would not get carriage.  See PruneYard Shopping
Center v. Robins, 447 U.S. 74, 88 (1980) (upholding a compelled access scheme
because it did not burden others' speech).Congress might also conceivably
obligate cable operators to act as common carriers for some of their channels,
with those channels being open to all through some sort of lottery system or
timesharing arrangement.  Setting aside any possible Takings Clause issues, it
stands to reason that if Congress may demand that telephone companies operate as
common carriers, it can ask the same of cable companies; such an approach would
not suffer from the defect of preferring one speaker to another." Turner
Broadcasting Sys. v. FCC, 114 S. Ct. 2445, 2480 (1994), Justice O'Connor
concurring in part, dissenting in part.
   [132]  Telecommunications Act Title III, Cable Services, Section 302, Cable
Service Provided by Telephone Companies, Part V, Video Programming Services
Provider by Telephone Companies, Sec. 653, "Establishment of Open Video
Systems."
   [133]  Redlich and Lurie, 1454.
   [134]  "The Message in the Medium:  The First Amendment on the Information
Superhighway," 1092.
   [135]  See for example, Sunstein, "First Amendment in Cyberspace," 1762.
Government may try promote to attention to public issues.  It may try to ensure
a diversity of views.  It may promote political speech at the expense of other
forms of speech, in particular educational and public-affairs programming, which
in the Madisonian view, have a special place in this tradition.