[Editor's note: As virtual worlds and other online gaming communities become more mainstream in the United States, new legal issues are cropping up. Here's one analysis of a case involving a man who claims he should not have been cut off from a gaming site because he needed it to socialize.]“Erik Estavillo is suing Sony over being banned from PlayStation Network, claiming that the company violated his right to free speech and has caused him pain by removing his only form of socialization, as he suffers from agoraphobia.” — Gamer Sues Sony over First Amendment
When I first read about this lawsuit, I wondered if the plaintiff in the case filed his suit pro se — representing himself. My thought was that any attorney who represented him might be subject to professional discipline for bringing a meritless claim. A suit that blatantly lacks jurisdiction would probably fall under that category.
On second review though, I thought that there might be a colorable basis for this suit, enough jurisdiction for the lawyer to avoid censure at least. The plaintiff’s complaint doesn’t specify exactly how Sony’s Resistance: The Fall of Man (RFoM) game platform qualifies as a “public forum”, but this point will determine whether the court can even entertain the case.
Sony is likely to challenge the plaintiff’s assumption that the game is a public forum, and if it does, this case will present the interesting issue of whether virtual worlds and in-game social communities may be considered public forums within the meaning of the First Amendment.
In order to bring a suit under the First Amendment, a plaintiff generally needs to establish that there is state action since the First Amendment usually only bars direct government censorship and not the actions of, for example, the owner of private property. However, there are two well-recognized exceptions to this rule. One is the so-called “company town” exception, where a corporation acts in a way that the government would act for an entire municipality. The other is the government delegates one of its traditional functions to a private entity.
The MMOG As “Company Town”
Does a massively multiplayer online game environment (MMOG) carry out a public function within the meaning of the First Amendment?
Even though case was filed on federal law grounds in the Northern District of California, it is worth noting that many courts including California state courts have broadly construed the public function exception. For example, it held in Planned Parenthood v. Wilson that expressive activity can be protected in such locations as a privately owned shopping center, since a shopping center is “the suburban counterpart of the traditional town center business block”.
If Estavillo can show that MMOG communities and virtual worlds have replaced the traditional (physical) places where the public can congregate, then the community element of Sony’s game will satisfy the public function exception. However, it seems that the plaintiff will probably have a difficult time establishing that the limited features of RFoM, given the game seems to only provide some limited social functionalities to supplement the primary activity of killing aliens.
Gauging the Social Elements of RFoM
RFoM is a first-person sci-fi shooter game that allows up to 40 players to simultaneously attempt to “drive a mysterious alien-like invasion out of Britain”. The players can create clans and interact with members of their clans using a headset. They can also chat with each other in a pre-game staging area, add players as friends, send direct messages and invite others to join gameplay.
Estavillo will need to convince the court that this is a public place where the community at large congregates and communicates, rather than a game played by a subset of the community that happens to provide a means of communication. Are game-playing community members from abroad considered members of this company “town”, and if so, can they also claim First Amendment protection too?
A far less tenable argument is that there is excessive entanglement since government is delegating one of its traditional functions to Sony. Under this theory, the operation of the Internet and its related social functions is a public function that has been delegated to private organizations.
It is true that government did originally create the Internet and that private companies like Sony operate channels that allow people to navigate and communicate with others online. However, the ARPANET is not the Internet as we know it today, which has traditionally (if a period of less than a quarter-century can be considered enough time to form a tradition) been administered by private organizations.
If Sony brings a challenge to this case on the basis of whether there is state action, the plaintiff will have more of a likelihood of getting to trial by arguing the public function exception.
Broader Implications for Virtual Worlds and Online Communities
Some online communities have internal economies, designated community forums and schools, which more closely resemble government functions than the in-game social community offered by RFoM. Many will dismiss the substance of Estavillo’s claim as frivolous — that he should be compensated for psychological harm as the result of being shut out of a game. However, the way that the state action issue is addressed will pose interesting and important constitutional implications for products such as Second Life and Facebook, as well as other MMOGs with in-game communities like World of Warcraft, Everquest and EVE Online.