CompuServe, the Microsoft Network and Prodigy.
Having found that AOL is not a state actor under the exclusive public function test, we evaluate whether AOL is a state actor under the remaining two tests, i.e. whether AOL is acting with the help of or in concert with state officials and whether the State has put itself in a position of interdependence with AOL such that it must be considered a participant in AOL's conduct. These tests actually overlap one another.
In its Memorandum, Cyber does not specifically argue that AOL is acting in concert with state officials. Indeed, the two major cases from the Supreme Court which have found state action under this test are clearly distinguishable from the case sub judice. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (finding a conspiracy between a private actor and a state official to engage in unlawful discrimination constituted action under color of law for purposes of 42 U.S.C. § 1983); Lugar v. Edmondson Oil Co., 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982) (finding private creditor's pre-judgment attachment petition upon which clerk of state court issued a writ of attachment and sheriff executed the writ on property of private debtor was state action under § 1983).
Rather, Cyber relies on the "joint participation" doctrine and contends that "AOL's use of the Court to obtain injunctive relief and/or damages [which it seeks in its prayer for relief in its counterclaim] and its assertions of federal and state statutory law, which if applicable to Cyber's activities, would violate Cyber's First Amendment rights." Cyber's Memorandum at 15.
In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991) the Supreme Court refined the joint participation test by announcing that courts must ask "first whether the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority; and second, whether the private party charged with the deprivation could be described in all fairness as a state actor." Edmonson, 500 U.S. at 620. Under the first prong, the inquiry is "under what authority did the private person engage in the allegedly unlawful acts." Mark, 51 F.3d at 1144.
In the case sub judice, the parties have stipulated that "there has been no government involvement in AOL's business decisions with respect to e-mail sent by Cyber nor in any AOL decision to institute or reinstitute a block directed to Internet e-mail sent by Cyber to AOL members or subscribers." Stipulation of Facts at P 9. As a result, Cyber is unable to satisfy even the first prong of the joint participation test.
In addition, our Court of Appeals has stated that "merely instituting a routine civil suit does not transform a litigant's actions into those taken under color of state law." Tunstall v. Office of Judicial Support, 820 F.2d 631, 634 (3d Cir. 1987). The Tunstall Court concluded that the filing of a quiet title action in state court by a purchaser of land to complete the seizure of plaintiff's property did not involve state action since the suit "did not attempt any seizure of property with the cooperation of state officials as in the Lugar line of cases." Id. In addition, the United States Court of Appeals for the Eleventh Circuit has found that a regulated utility did not act under color of state law when it obtained a temporary restraining order from a state court. Cobb v. Georgia Power Co., 757 F.2d 1248 (11th Cir. 1985). The United States Court of Appeals for the Second Circuit has held that the mere filing of a state law contempt proceeding does not constitute joint participation so as to satisfy the color of state law requirement under 42 U.S.C. § 1983. Dahlberg v. Becker, 748 F.2d 85 (2d Cir. 1984).
Perhaps recognizing the futility of its argument, Cyber contends in its Reply Memorandum that "it is not Cyber's position that the mere filing of an action provides a party with the requisite state action to assert a First Amendment violation. Rather it is the Court's participation with the litigant in issuing or enforcing an order which impinges on another's First Amendment rights. Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987)." Reply Memorandum at 7. In Grandbouche, the United States Court of Appeals for the Tenth Circuit stated that the first Amendment "may be applicable in the context of discovery orders, even if all of the litigants are private entities." The Court found government action present as a result of a magistrate's order compelling discovery and the trial court's enforcement of that order.
We are troubled by the Grandbouche decision because it has the etrate simply signs, and a trial judge enforces, a discovery order. Therefore, even if this Court had enforced a discovery order (which we have not), we would not follow the Grandbouche decision.
In sum, we find that since AOL is not a state actor and there has been no state action by AOL's activities under any of the three tests for state action enunciated by our Court of Appeals in Mark, Cyber has no right under the First Amendment to the United States Constitution to send unsolicited e-mail to AOL's members. It follows that AOL, as a private company, may block any attempts by Cyber to do so.
Cyber also contends that its practice of sending e-mail advertisements to AOL's servers is also protected "under state constitutional law, which in many instances, affords even broader protection than federal First Amendment guarantees which this Court can enforce." Cyber's Memorandum at 17. Specifically, Cyber refers to the state constitutions of Pennsylvania and Virginia.
Although this argument is beyond the scope of the issue the Court directed the parties to brief, we will nevertheless consider it at this time.
The theory that a state constitution's free speech provisions may afford broader rights than similar provisions of the United States Constitution was first recognized by the Supreme Court in PruneYard Shopping Center v. Robins, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980). The PruneYard Court held that, while the First Amendment did not grant the defendants the right to solicit in a privately owned shopping center, state (California) law might grant that right. The Supreme Court of Pennsylvania has itself recognized that "Pennsylvania may afford greater protection to individual rights under its Constitution" than the Constitution of the United States. Western Pennsylvania Socialist Workers 1982 Campaign v. Conn. Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331, 1333-34 (1986) (plurality opinion); Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981).
Article 1, Section 7 of the Pennsylvania Constitution provides:
The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject...
In Tate, the only case on which Cyber relies, the Supreme Court of Pennsylvania overturned convictions for defiant trespass stemming from a group of protester's refusal to desist from distributing politically oriented materials in a peaceful manner on the campus of a privately owned college. The court found that the college had created a public forum by opening the campus to the public to hear the director of the FBI to speak in a campus building. Because the college had become a public forum and because the defiant trespass statute had provided a defense to a charge of defiant trespass in those circumstances
, the Tate Court held that the protesters had a right to speak freely without fear of criminal conviction under Article I, Section 7 of the Pennsylvania Constitution.
Tate was subsequently clarified by the Supreme Court of Pennsylvania in Western Pennsylvania Socialist Workers, 512 Pa. 23, 515 A.2d 1331. In that case, a political committee, its chairman, a gubernatorial candidate and a campaign worker claimed they had the right under, inter alia, Article 1, Section 7 of the Pennsylvania Constitution to collect signatures for the gubernatorial candidate's campaign at privately owned shopping malls, including one owned by Connecticut General Life Insurance Co. Connecticut General had a policy which uniformly prohibited all political activities including solicitation at its mall. The Court distinguished Tate, by observing that "by adhering to a strict no political solicitation policy, [Connecticut General] has uniformly and generally prevented the mall from becoming a public forum." Western Pennsylvania, 515 A.2d at 1337. Rather, the Court noted that Connecticut General had only invited the public into the mall for commercial purposes. Since Connecticut General had not invited the public into the mall for political purposes, the Court held that Article 1, Section 7, was inapplicable.
The Western Pennsylvania Court also rejected attempts to analogize the mall to the company town in Marsh v. Alabama, supra by stating:
A shopping mall is not equivalent to a town. Though it duplicates the commercial function traditionally associated with a town's business district or marketplace, the similarity ends there. People do not live in shopping malls. Malls do not provide essential public services such as water, sewers roads, sanitation or vital records, nor are they responsible for education, recreation or transportation. Thus, the Marsh analysis is not applicable to the instant case.
Western Pennsylvania, 515 A.2d at 1338.
The case sub judice is more similar to Western Pennsylvania than it is to Tate. AOL's e-mail servers are certainly not a traditional public forum such as a street, park or even the college in Tate. Instead, AOL's e-mail servers are privately owned and are only available to the subscribers of AOL who pay a fee for their usage. Moreover, unlike Tate, AOL has not presented its e-mail servers to the public at large for disseminating political messages at a certain event. Indeed, AOL has never presented its e-mail servers to the public at large for dissemination of messages in general as AOL's servers have a finite capacity. Stipulation of Facts at P 7. As noted above, AOL's e-mail system simply provides a means for its members to communicate with those members of the public who are connected with the Internet.
Cyber also does not have the right under the Constitution of Virginia to send unsolicited e-mail over the Internet to AOL members. Article I, Section 12 of the Virginia Constitution provides:
That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.