From shopping malls to the information highway [cr-95/10/7]


Introduction by moderator:

The following interesting post about the protection of political
activity was posted to the telecomreg mailing list, which has a lot of
good information (although the number of messages is much higher than
on cyber-rights).

Courts have ruled that political activists can promote their ideas at
shopping malls as if they are public spaces, even though malls are
privately owned.  However, legislation promoting similar rights on
electronic networks was defeated in California after heavy lobbying by
the cable industry.

The writer of this post covered the issues in a monograph authored for
the California State Assembly in 1981, "Access Rights to the
Electronic Marketplace" (Office of Research).  This document, copies
of which may still be available (at least as archival materials in the
State Library), became the armature for a near-decade of policymaking
and law in California.



Date: Wed, 4 Oct 1995 12:46:10 -0500
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From: Robert Jacobson <•••@••.•••>
To: Multiple recipients of list <•••@••.•••>
Subject: Info Services/Carriers as "Shopping Malls" re Pruneyard
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In September the Supreme Court chose not to review a case before the N.J.
Supreme Court, in which the latter found that a shopping mall could not
prevent political speech on its grounds (although it could impose
reasonable rules for that expression).  This is the familiar Pruneyard
case, brought up to date.  The position of the N.J. Supreme Court in the
intensity of its opinion (which I have only seen quoted, without
indicating the name of the case) echoes that of the California Supreme
Court way back when (1976), in the original case.

Shopping malls are important centers of commerce and the exchange of
opinion (the modern version of the Greek agoura), per the Courts.

A similar case can be made for various new media of communication that
gather together a cornucopia of services among which the user can wander,
or "surf."  Interesting analogies.  If we choose the wander analogy, the
agoura, then cable TV and indeed any of the aggregating information
services (like AOL) may be subject to Pruneyard.  Even if the less
precedential "surf" analogy is employed, at least there must be a
lifeguard if the place is frequented by the public, to answer the question
of ultimate liability for injuries sustained.  This latter is speculative:
I favor the agoura analogy, which actually is finding some support in the
popular, if not yet the legal, press.

This was the basis for a bill advanced in the California legislature in
1981, by Assemblyman Robinson; it was crushed by the cable interests in
California, who were all too familiar with Pruneyard.  Later, we tried
to clarify that electronic communications were equivalent to oral and
written speech, via a constitutional amendment.  Such vociferous opposition
from the bearers of the "information highway" mantle you would not believe.

Which calls to mind:  isn't a highway, if not a public investment,
frequently a toll road -- in which case, it is de facto a common carrier?

I just love exuberant communications industry executives.

We should revisit this issue often.  The terrain is positively liquid.

Bob Jacobson
Former Staff Director and
Principal Consultant,
Assembly Utilities and Commerce
Committee, CA Legislature, 1981-89

 Posted by --  Andrew Oram  --  •••@••.••• --  Cambridge, Mass., USA
                 Moderator:  CYBER-RIGHTS (CPSR)

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