Things That Make Me Stabby: Free Speech Edition

As I've mentioned before in other odd contexts, few internet complaints are more ubiquitous, more wrong-headed, and more personally annoying to me than the cry "OMG I got banned from a web forum, my free speech rights have been violated!!" As anyone with a junior-high-school education and a low-average intelligence knows, the First Amendment to the United States Constitution binds the government, not private parties. A private forum can kick your trolling ass off for any reason or none. It might violate a private contract with you by doing so. It might even conceivably violate federal or state law if it kicks you off because of your race or gender or some other suspect category. But you have no right to be free from private censorship on a private forum. Nor could you in any coherent system; booting your ass is an exercise of the private forum owner's free speech and free association rights.

Yet this simple concept continues to elude people. Meet Erik Estavillo of San Jose. Erik has filed, pro se, a federal lawsuit against Sony Computer Entertainment America, in which he asserts the following:

1. He is a graduate of UCLA. Hence he has more than a junior high school education, and, one would think, more than a low-average intelligence.

2. He suffers from various psychological and physical ailments, making online games a primary form of human interaction for him.

3. Sony violated his First Amendment rights by banning him from Playstation Network online games for his behavior while playing "Resistance: Fall of Man" on his PS3. He claims that game is a public forum. He complains that Sony is mean because Xbox only bans people for repeated violations and Nintendo doesn't ban at all.

4. Sony violated his rights by banning him from the Playstation Network because now he cannot use the credit he bought on that network.

Now, if Sony's Terms of Service did not spell out that a fellow can get banned for being an ass and therefore lose all the network credits and games one has bought, item #4 might state some sort of contract or consumer claim. I'm rather certain Sony's TOS spells that out, however.

But #3 is simply infuriating. The Playstation Network is not a public forum under the First Amendment. Estavillo has no First Amendment rights enforceable against Sony, and it's appalling that a UCLA graduate would think otherwise. It's likely that Sony will succeed in a motion to dismiss, or at least in a motion for summary judgment. In the meantime, though, Sony will probably incur (on the low end) tens of thousands of dollars responding to this frivolous suit.

Erik Estavillo, you are an ignorant asshat illiterate in American civics.

[n.b.: Estavillo styled his claim under the First Amendment. The analysis might be slightly different under California law, given the loathsome Pruneyard Doctrine..]

Last 5 posts by Ken White


  1. Patrick says

    Apparently New Jersey also follows the Pruneyard doctrine. Query whether, however, an attempt to impose California law on the Playstation Network constitutes an impermissible interference in interstate commerce?

    Clearly what America needs is a federal law imposing uniform standards for the management of interstate online gaming networks. I'm sure the present Congress and administration will get around to it.

  2. says

    Considering the idiocy I see on various Xbox-related forums I assure that – despite evidence to the contrary (such as willingly being on the PSN in the first place) – such idiots are legion on XBL…

    My favorite response to such rants of stupidity usually involve the phrase "How is it you can read all those big words, how can you possible know that "infringe" means, and still miss "the government" in that amendment?

  3. dudi says

    i think that guy is plain stupid, still i'm not a fan of victimizing large companies over loosing a small amount of money (for them, of course) which won't change their economies at all. I like to see capitalism suffer.