Only "state actors" are obligated to adhere to the First Amendment. Private ISPs are not state actors, and more than a handful of legal cases have confirmed this (the 2 seminal cases are CompuServe v. Cyber Promotions and AOL v. Cyber Promotions). So it's not accurate to say in this context that a user can waive First Amendment protection by contract; because the First Amendment does not restrict private ISPs, irrespective of their contract. Eric. -- Eric Goldman Marquette University Law School ericgoldman@onebox.com Personal home page: http://eric_goldman.tripod.com -----Original Message----- From: Sandra Braman <sbraman@wi.rr.com> Sent: Sun, 23 Feb 2003 11:54:34 -0600 To: air-l@aoir.org Subject: [Air-l] free speech via ISPs David Silver comments that many folks he knows are opening yahoo or other accounts separate from those they hold at universities and/or their employers and/or with smaller ISPs because of fear that political speech during these times may be restricted in those other venues. Before assuming that any particular type or specific example of a type of ISP-like service provider offers anything different in the way of potential constraints on free speech, read the terms of service and/or acceptable use policies! I did a comparative study of these agreements from about 30 different ISP-like entities (currently in press as Advadntage ISP: Terms of service as media law (with Stephanie Lynch), in Lorrie Cranor & Steve Wildman, Eds., RETHINKING RIGHTS AND REGULATIONS: INSTITUTIONAL RESPONSES TO NEW COMMUNICATION TECHNOLOGIES (Cambridge: MIT Press). As they existed in spring of 2002, the time of the study, there was not much difference across ISPs on this point and almost all of them constrained speech rights in ways that would be deemed unconstitutionally overbroad were they not agreed to by the contract that is your agreement with your service provider. Historically one has always been able to sign away one's First Amendment rights by contract, but historically that has only affected a few, in circumstances in which there were other alternatives to agreeing to the contract. Under current circumstances, as ISP terms of service and acceptable use policies increasingly conform, we have no choice but to sign these agreements. A serious threat to free speech. Sandra Braman