WP-ORG runs a significant number of email discussion lists. A key to effective management of these lists are certain guidelines for use imposed by the list moderator(s), Rules of Engagement if you will.
Almost inevitably, when someone loses list posting privileges because they violated a list’s Rules of Engagement, the issue of that individual’s rights to free speech under the First Amendment of The Constitution is raised. In fact, insofar as WP-ORG is concerned and as delineated below, these rights are not an issue.
First Amendment Free Speech rights and WP-ORG
The First Amendment to the United States Constitution states, “Congress shall make no law … abridging the freedom of speech.” The Due Process Clause of the Fourteenth Amendment extends the prohibition on such laws to the states and subordinate government agencies. See Gitlow v. New York, holding the Fourteenth Amendment applies myriad constitutional restrictions, including free speech protection under the First Amendment, to state and local governments.
This prohibition applies to governments, including governmental institutions, such as public schools, colleges, and universities. The restriction does not apply to private entities, however. See, e.g, Cyber Promotions, Inc., v. AOL, 948 F. Supp. 436 (E.D. Pa. 1996). “The United States Supreme Court has recognized that ‘the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state.‘ Hudgens v.NLRB, 424 U.S. 507, 513 (1976). Only recently, the Supreme Court has stated that ‘the guarantees of free speech … guard only against encroachment by the government and ‘erec[t] no shield against merely private conduct.’ Hurley v. Irish-American Gay Group of Boston, 115 S.Ct. 2338, 2344 (1995).”
These cases make clear that the First Amendment restriction on free speech does not apply to WP-ORG, a private, 501(c)(3) non-profit organization. WP-ORG does not exercise powers “traditionally the exclusive prerogative of the state“, Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982); has not “acted with the help of or in concert with state officials“, Mark v. Borough of Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995); nor does it hold that “the State has so far insinuated itself into a position of interdependence with … [WP-ORG] that it must be recognized as a joint participant in the challenged activity.”
WP-ORG does not open its forums to the public at large and is not itself a public forum. WP-ORG’s servers are privately owned and are only available to the members of WP-ORG. WP-ORG has never presented its e-mail servers to the public at large for dissemination of messages in general as its servers have a finite capacity. WP-ORG’s e-mail system simply provides a means for its members to communicate with other members and not any members of the public who are connected with the Internet (Cyber Promotions, Inc., v. AOL).
Accordingly, WP-ORG may, at its discretion, limit the speech of any member of the organization without regard to the First Amendment. The various forum moderators are granted the power to discipline members, to include the removal of messages and members from their forum(s), for violation of their forum(s)’s terms of service, to which all members must agree before using WP-ORG services, including joining and posting to an email forum.