No First Amendment if They Ban You

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A guy was banned by Sony from the PlayStation Network and sued. The federal judge found there was no basis for a federal claim under the First Amendment, as there was no taking up of government functions by Sony and no participation by the actual government, either. Here's a piece:

A California judge last week ruled that Sony Computer Entertainment America did not violate a gamer's First Amendment rights by banning him from the PlayStation Network.

Erik Estavillo filed suit against SCEA this year after he was banned from the online gaming service and Sony's forums for allegedly violating multiple parts of the user agreement for PSN. Estavillo claimed that by kicking him off the service, Sony infringed on his First Amendment rights, and the plaintiff asked for $55,000 in relief.

Well, well, I can see a successful lawsuit finally coming if not in the States, then particularly in the European Union with all the telecom regulation. After ISP's and the rest of the crowd, who can't really ban you just because they want to (notwithstanding any possible contractual claim), operators of large networks could follow suit (no pun intended). I can easily imagine e.g. Battle.net being likened to a telecom and someone at some point finally taking a ban to court and winning... though on the other hand I do have a hard time imagining the courts reviewing IP bans by private entities.

Read the rest at Gamasutra.

 

I certainly hope this kind of thing never passes a court. Talk about idiotic. Sony spent their resources putting this person's stuff online for others to access and, when he broke the contract with them, they had every right to cease doing so. I can see a legal problem if Sony somehow banned the person from all ISPs everywhere, essentially cutting them off from the net, but I don't see Sony no longer offering their services as a First Amendment issue.

It's no more an issue than Tal occasionally censoring/chastizing us here for various no-nos by the forum rules. I honestly don't see this as a serious risk in the US (of course, I'm not a lawyer).

 

I'm not sure I see any issue here at all. This guy wasn't kicked off the network because SONY "felt like it," but for violating multiple parts of the user agreement for PSN. In this case, I think it is reasonable to assume Estavillo did it, too. He sued on first amendment grounds -- taking issue with PSN's user agreement itself -- rather than arguing that he never violated his user agreement in the first place. This rather heavily implies that he did violate his user agreement and, moreover, that he knows he violated his user agreement. This is still an assumption, or course, and harder information would be nice.

 

If this is what happened, does he have any grounds to sue? After all he did agree to the user agreement (so to speak). I don't know much about these things, but could the case be thrown out on the basis that if this was really a First Amendment issue he would have had to sue before breaking the agreement?

 

Not for breach of contract. Hence, the first amendment suit.

 

There's a need for defining what is public and what is private.

Is speaking in a corporate office subject to first amendment rights or not? Just because the corporation made the building, doesn't prevent first amendment rights. Why wouldn't forums be treated the same?

BTW, signing an agreement under duress or without proper understanding is not admissable in court.

 

Not a chance in hell I'd say. While I'm not going to pretend to know the law of each member state, EU countries in general take a much firmer stance on free speech versus the public interest. You don't find porn/radio/video game/whatever companies arguing that restrictions on their products contitutes a restriction on freedom of speech. I do think ISPs should be treated as utilities like the post or phones in that people shouldn't be banned from having them but I can't see the PSN qualifying.

If you're in a corporate office I'd presume you're there because you're supposed to be working. As such it's not unreasonable that your speech should be restricted to that which promotes the ethos and activities of your employer. Also, freedom of speech in no way contradicts the right of a private property owner not to let you onto their property. They don't need a reason, they can just refuse to let you on. It's their property.

I'm not sure what Estavillo did but I imagine the contract was of the standard 'you must not use foul or abusive language, etc.' type and he had the chance to read it before joining. It's difficult to imagine a court ruling that the contract was unreasonable.

 

Ah, but if you speak inappropriately in a corporate office, the corporation has the right to fire you and ban you from the building, enforcable by police pressense if necessary. This is what Sony did.

 

No, I was referring to non-employees. Sure employees could be fired, but that's not preventing free speech either.

 

I work in a corporate office, as an on-site rep for another company. Upon hire, I had to sign a confidentiality form to take the job. Anyone entering the building, reps from other companies, if they are being exposed to sensitive knowledge, have to sign as well. Of course they have the right to remove you. If someone enters our offices and starts spewing some type of rhetorical non-sense, they can remove you at will.

 

Well you can stand in front of their building and shout whatever you want.

Corporations should NOT be treated like people. They aren't. They are more like government than people. So I think first ammendmant rights should apply to corporations just like they do to companies.

 

Yes, you can. They don't control the streets.

That still doesn't change what you can do while on their property. Come into my house and act like a knucklehead, I will remove you without pause. Enter a Walmart and start spewing rhetoric, they can remove you within the law. You don't have the right to be in my home or Walmart, just the privilige that myself or Walmart extends. We can pull it at anytime.

 

No you're missing my point. Companies are not people, and should not be afforded the same rights.

 

I'm not missing your point, I'm disagreeing with it....

 

And this guy is free to stand outside Sony headquarters and shout as well (or, at least, in front of their property).

Corporations are neither people nor government. And, incidentally, they are treated the same way companies are, because they are companies. Companies are no more bound by first amendment than people are.

This isn't a case of what rights companies are afforded, but rather what rights people are (or in this case 'are not') afforded. People have the right to be free from government censorship of their speech, but they don't have the right to say anything they like anywhere they like. The issue isn't that Sony has the right to remove the person, but rather that the person has no right to free expression within Sony's property (be it virtual or physical). And, more importantly, this person has no right to Sony's services. Sony's services were an agreement, not a right. When this person violated that agreement, they gave up their priveledge to use their end of it.

 

I disagree. With the internet being so pervasive and created by the government it should be completely open. If a company uses the internet to promote itself, then people should have the same access.

 

The internet is completely open (well, within reasonable limits). It's the private servers that aren't. Think of the internet like the real world. The servers are like buildings. They're owned, operated, built, and maintained by people. You have no more right to use someone else's server than you do to use someone else's home, office, or car. Provided you have a way to get there (and that generally also uses other people's property, specifically your ISP's), you can access the general web freely (at least around here), just like you can access public property: parks, sidewalks, etc. If you want to post on these forums, though, you're using someone else's private property (Tal's), and you need their permission and to abide by their rules. If you don't, they have every right to tell you to get lost.

 

NOG has done an excellent job of responding to this. I would just like to add one thing, specifically regarding this:

People do have the same access. There is nothing to stop a person from setting up their own web site or blog to express their ideas. And if they did, they would be fully within their rights to put restrictions on what others could say on their site.

Edit: Too bad this was news. It would have made for an interesting AoDA discussion.

 

OK, those are good points. But if it weren't for the government developing the internet in the first place, none of those servers would be available. And since the traffic is on government infrastructure, should everyone have equal access?