[Air-l] first amendment and posting policy

Gina Neff ginasue at panix.com
Fri Mar 22 16:39:48 PST 2002

Eszter wrote:

>The focus here is on: _Congress_ shall make no law - so it is the US
_Government_ that will >not limit freedom of speech.  There is no comment
here about organizations that are not
>affiliated with the US Government. In so far as AoIR is not a branch of the
US Government,
>AoIR has every right to set limits on people's expression.

Actually, case law interprets the first amendment quite differently.
Membership in AoIR, and possibly by extension to the email list, is
recognized more broadly under what the Court calls the "right of expressive
association", an interpretation of the first amendment which pretty much
lets groups themselves determine who can and cannot meet with them (and what
they can say). The Boy Scouts are allowed to discriminate against gay boys
and men under this right because that goes against the organization's stated
goals, although the Court held that the Jaycees had to admit women under
this right because admitting women doesn't keep men from meeting. Under this
interpretation of the first amendment, in both of these cases (and in AoIR)
an association is fully within its rights of expressive association to
exclude members or classes of members if they significantly interfere with
our rights of expressive association (as I think many of us would say of

But, such an interpretation, as I understand the case law it would hinge on
the interpretation of AoIR as public or private, and that's where it gets
tricky. Were AoIR considered publicly supported in some way (servers housed
at a public university? public university staff time contributing to its
maintenance?) or if air-l were considered what the Court calls "a place of
public accommodation" (is the Internet a public place?) then it might be
trickier to exclude members in good standing just on the basis that they
were jerks.

Just because AoIR is not a government, though, doesn't mean that rights
first amendment speech restrictions don't apply.

If anybody knows how email lists have been understood within the legal
definition of public accommodation, I'd love to know.

Yours in legal procrastination,

Gina Neff
Columbia University

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