[Air-l] ISPs, state action, and public forums

[Sandra Braman]

Eric Goldman is correct, of course, that ISPs are not
entities of the state and therefore do not involve
state action.  However -- and I didn't mention this
earlier because I was trying to be brief rather than
spelling out the entire argument of the piece --
ISPs now function as quasi-public forums because
they are fundamental to the ways in which we
communicate via the internet.  As quasi-public
forums, constitutional standards must be met in
order to restrict speech. I'm arguing that public
forum analysis must be applied to ISPs.  This, too,
has been raised in court but earlier on, before
terms of service began to become harmonized with
each other, and before the internet had become
so significant as a medium of public communication.

The claim is not that what ISPs are doing is
illegal -- but that because they now are the gateway
to the public spaces of communication the trends
in terms of service and acceptable use policies
are of serious importance and can have the EFFECT
of completely undermining constitutional protections
for political speech so carefully built up over so many
environments.

Sandra Braman