Virulent criticism of Islam online legally actionable?

[Eugene Volokh]

    Michael may well be correct, but let me ask three questions:

    1)  Might courts conclude that AOL is covered by 42 USC 2000a(b)(1)'s
inclusion of "any motion picture house, theater, concert hall, sports arena,
stadium or other place of exhibition or entertainment"?  The Internet may
not be literally a "place" of exhibition or entertainment, but given that
technology has created this new sort of "place" since the Act was enacted,
wouldn't it be plausible to apply the statute by analogy?  Cf. the way
"writings" in the Copyright Clause have been applied to photographs and
movies, and "speech" and "press" has been applied to the Internet.

    2)  If Michael's reasoning is correct, then a service provider could
freely say, for instance, "We refuse to issue accounts to Muslims" (though I
realize that such a rule would be hard to enforce).  Would courts likely
interpret Title II to allow such restrictions?  I ask this because the
threshold question of whether an ISP is a place of public accommodation is
the same for discriminatory service provision claims as for hostile
environment claims.

    3)  Any thoughts on what should happen if the plaintiff also includes a
claim under some state public accommodation laws, some of which are
considerably broader than Title II?  Cf.
http://www.law.ucla.edu/faculty/volokh/listener.htm notes 46-49; the Vermont
case discussed in http://www.law.ucla.edu/faculty/volokh/harass/cyberspa.htm
Part V.  Would the laws just be inapplicable, on the grounds that AOL isn't
headquartered in those states, or would they apply because AOL does business
in those states?  Or would they be inapplicable because of the Dormant
Commerce Clause?  (Note that the relevant question here would be one of
choice of law, not of jurisdiction; clearly this district court in Virginia
has jurisdiction over AOL.)

    Eugene

Michael Masinter writes:

> I think the plaintiff loses on the uncontroversial basis that AOL is not a
> public accommodation within the meaning of Title Two.

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