Virulent criticism of Islam online legally actionable?
masinter at NOVA.EDU
Thu Sep 6 00:31:59 PDT 2001
The question of whether a service provider is a place of public
accommodation beyond the physical boundaries of the building in which it
operates, and therefore is liable for discriminating in the content of the
services it provides has arisen regularly under Title Three of the ADA.
The prevailing view is that the physical structure can be a place of
public accommodation which therefore must meet ADA accessibility
requirements, but that the service provided is not a public accommodation
subject to Title Three of the ADA. Although the bulk of the cases involve
health insurance disputes, they articulate principles which would apply to
an ISP. See, e.g, Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006
(6th Cir. 1997)(en banc), cert. denied, 522 U.S. 1084 (1998) and Ford v.
Schering-Plough Corp., 145 F.3d 601 (3d Cir. 1998), cert. denied, 525 U.S.
1093 (1999), Weyer v. Twentieth Century Film Corp., 193 F.3d 1104 (9th
Cir. 2000); Menkowitz v. Pottstown Memorial Medical Center, 154 F.3d 113
(3d Cir. 1998), Doe v. National Board of Medical Examiners, 199 F.3d 146
(3d Cir. 1999). But see Carparts Distribution Center v. Automotive
Wholesalers Ass'n, 37 F.3d 12 (1st Cir. 1994), which failed to persuade
the courts of appeals which have since decided the question.
Discriminatory provision of services may nevertheless state a claim under
42 U.S.C. 1981 if the basis for discrimination is race, as broadly defined
by the Supreme Court in Al Khazraji and Shaare Tefila.
Were state law to impose liability for failing to censor, I would think it
preempted by the first amendment.
Michael R. Masinter 3305 College Avenue
Nova Southeastern University Fort Lauderdale, Fl. 33314
Shepard Broad Law Center (954) 262-6151
masinter at nova.edu Chair, ACLU of Florida Legal Panel
On Wed, 5 Sep 2001, Eugene Volokh wrote:
> 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.)
> 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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