法律英语：27 Free Speech Limitations

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2. Further, I do not intend to create an attorney-client relationship with any listener.

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Today I will discuss speech limitations by private groups. Rob wrote:

I registered an account at http://godtube.com. I posted a couple comments to 2 videos and a few hours later my account disappeared from their website.

I went back and read the Terms closely and I'm not sure their terms are legal. They've created a public forum 4 and then limit what [you’re] allowed to say.

[One term states]: “You agree not to submit or post any User Submission 5 to the Site, or transmit any User Submission through the Site, that (a) is contrary to the evangelization of Jesus Christ and His teachings, or constitutes blasphemy 6, or is otherwise offensive to our online Christian 7 community.”

Do they have the right to limit what I say on their website? Can they really tell me that I can't be contrary to Jesus Christ in their public forums 8?

Thanks, Rob. Free speech is a fundamental right enjoyed by Americans under the First Amendment 9. But, free speech does not mean that every private group must let you speak. The rules that godtube imposes are perfectly 10 legal due to the state action doctrine 11.

The First Amendment to the Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging 12 the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress 13 of grievances 14.

The most important part of the text for today’s discussion is “Congress shall make no law . . .” The reason this is important is that the text does not read: “anybody in this country shall make no rule . . .” The First Amendment, and all constitutional maxims 15, only apply to actions taken or enforced by the government, not private parties. This is generally known as the state action doctrine. So, before the First Amendment even comes into play, Rob would have to show that the government somehow enforced the rules that godtube created. It seems that godtube itself enforced their rules by removing the comments and videos that Rob posted. So, notions of constitutional free speech simply do not apply.

Turning to the issue of public forum, Rob’s assertion that godtube has created a public forum is incorrect. In constitutional law, a “public forum” refers only to areas owned or operated by the government. A “traditional public forum” is public land that has been used as a traditional area to meet, protest and speak. Common examples include the areas outside courthouses, city halls or embassies. A “designated public forum” is one in which a governmental entity 16 opens up its doors to the public for a limited time and purpose. A common example is a public school classroom. The members of the public are not always allowed to speak here, but the government might open up the classroom during a school board meeting for the purpose of discussion and debate.

However, these concepts do not apply because godtube is not the government. The website is free to create a speech forum and place restrictions 17 on the content of the speech.

Even if free speech were implicated 18, it is important to note something that Rob’s question misses: godtube’s right to free speech and association. By posting Rob’s comments, the website might be seen as endorsing 19 the substance of the comments. Godtube has a right to limit the postings to messages that it wishes to disseminate 20. Just as godtube could not force Rob to post things on his website, Rob cannot force godtube to post his comments.

So, while some people visiting godtube might consider the website’s message biased 21 or limited given that it censors 22 out comments that are contrary to its views, it is well within its legal rights. It is a private entity that is free to publish almost anything it likes.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 23 Life. Be sure to check out all the Quick and Dirty Tips podcasts, including our newest member, Make-it-Green Girl's Quick and Dirty Tips for an Earth Friendly Life.

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