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Online Gaming and Free Speech: Showdown at the Virtual Corral

Is it fair when a virtual world provider kicks a user off its system? The answer might depend on whether the user broke the rules, or the provider just acted on a whim. How should we balance the rights of game providers to protect their systems against the rights of players who invest significant hours and dollars in their characters? Eric Goldman explains why he thinks the balance tips in favor of the providers.
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Recently, tension has been growing between free speech rights and private property/contract rights. Neither free speech rights nor private property and contract rights are absolute. Where they intersect, confusing legal doctrines usually emerge.

In the offline world, we've seen this intersection in (among other situations) U.S. Supreme Court cases addressing private speech at privately owned company towns and shopping centers.[1] In some cases, the Supreme Court has said that certain landowners cannot prevent speakers from speaking on their private property. However, in other cases, the landowner's property rights have trumped the speaker's right to speak on the property, allowing the landowner to "censor" the speaker.

The differing results depend on whether the private landowner is characterized as a "state actor." Constitutional protections such as the First Amendment restrict the behavior of state actors, which typically include government entities such as federal, state, or local governments. However, at times non-government actors can be considered state actors, which makes the cases confusing. Indeed, private actors have been characterized as state actors in some cases.

In the online world, the speech/rights dichotomy raises equally complex issues. Online private actors routinely use their private property (such as computers and networks) to create virtual spaces designed for speech, although speaker access is usually controlled by contract. An online provider exercising its property or contract rights inevitably squelches a speaker's rights. But despite online providers' capacity to exercise their rights capriciously, courts so far have unanimously held that private online providers are not state actors for First Amendment purposes.[2] In one representative case, AOL could refuse to deliver email messages when a spammer tried to send spam through AOL's network. In other words, in theory, courts could do something about providers squelching speech, but have sided with providers because the Constitution doesn't apply in these cases. But how do we distinguish between AOL's response to spam (which seems right) and a virtual world's decision to kick off a user? In both cases, the online provider can choose, but we're tempted to side with AOL on spam and side against virtual world providers on everything else. It's that inconsistency that I'm trying to address here.

The virtual world industry is burgeoning. Millions of users participate in such complex interactive spaces as EverQuest, Second Life, World of Warcraft, and The Sims Online. With the emergence of these "virtual worlds," we must once again consider how we balance a customer's speech against a virtual world provider's rights to squelch speech. To strike a balance, we must decide whether virtual worlds are more like physical world company towns or shopping centers, or are just another category of online providers. Some commentators, most prominently Professor Jack Balkin of Yale Law School,[3] believe that virtual worlds are different from the physical world, and have argued for limits to a virtual world provider's ability to regulate speech by its participants.

I reject these arguments. I believe that virtual worlds are not distinguishable from other online providers and that we should not create special speech rules for virtual worlds. Using a recent incident involving The Sims Online and Peter Ludlow, let me explain why.

Peter Ludlow and The Sims Online

The Sims Online is a for-profit subscription-based massively multiplayer online role-playing game (MMORPG) operated by Electronic Arts ("EA").[4] Peter Ludlow is a University of Michigan philosophy professor[5] and author of the Alphaville Herald virtual newspaper,[6] which chronicles in-game developments.

The incident started when Ludlow alleged that The Sims Online participants, including some teenagers, engaged in "cyber-prostitution" in the game.[7] The term "cyber-prostitution" implied that avatars were engaging in simulated sex, but the game's architecture limited the participants' ability to do so.[8] Instead, participants (including some teenagers) allegedly traded cybersex chat for in-game currency,[9] although Ludlow picked a fairly inflammatory term to make the point.

Ludlow's claim received some media attention, and Ludlow claims EA targeted him because this publicity was damaging to EA.[10] EA responded that Ludlow violated EA's rules by linking from his in-game profile to his newspaper site. It's a little unclear exactly why this link violated EA's rules. Some reports say that the link broke the rules because the Herald site linked to information about how to cheat the game;[11] other reports say that a rule violation occurred because the Herald site was a commercial web site.[12] Based on its user agreement, EA probably could have terminated Ludlow's account without any justification at all,[13] but EA appears not to have taken that route.

Whatever its reason, EA terminated Ludlow's account in The Sims Online—giving him the online equivalent of the death penalty. Ludlow claims that this termination was unjustified and discriminatory because EA selectively enforced its rule against him and not others.[14]

Since the termination, Ludlow has railed against EA for its censorship. That is not unusual; many disgruntled customers have found a soapbox in cyberspace. What is unusual, however, is that Peter Ludlow's story became a cause célèbre. His termination was covered by the New York Times,[15] the Boston Globe,[16] CNN,[17] the BBC,[18] and Salon,[19] and high-profile commentators such as Professor Balkin have supported his cause.[20]

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