Virtual assembly

Cornell Law Review

Volumn 98, Issue 5, 2013, Pages 1093-1142

  Inazu, John D ^a  

^a School of Law Washington University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84884508472     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (324)

1. Hillary Rodham Clinton, Sec'y of State, U. S. Dep't of State, Remarks on Internet Freedom (Jan. 21, 2010), available at http://www.state.gov/secretary/ rm/2010/01/1355 19.htm.
2. For purposes of this Article, I rely upon a broad definition of "group" requiring only that two or more people intentionally pursue a shared enterprise. This threshold definition covers a vast array of human activity but excludes: (1) groups consisting of only one individual (e.g., a company with one employee), and (2) collective expression that unfolds outside of a shared enterprise (e.g., multiple people who wear the same shirt but who lack any other shared connection). Cf. RUPERT BROWN, GROUP PROCESSES: DYNAMICS WITHIN AND BETWEEN GROUPS 2-3 (1988) ("[A] group exists when two or more people define themselves as members of it and when its existence is recognized by at least one other." (emphasis omitted));
3. DONELSON R. FORSYTH, GROUP DYNAMICS 3 (5th ed. 2010) (defining a group as "two or more individuals who are connected by and within social relationships" (emphasis omitted));
4. THEODORE M. MILLS, THE SOCIOLOGY OF SMALL GROUPS 2 (1967) ("[Groups] are units composed of two or more persons who come into contact for a purpose and who consider the contact meaningful." (emphasis omitted)).
5. Boy Scouts of Am. v. Dale, 530 U. S. 640, 656 (2000).
6. City of Dall. v. Stanglin, 490 U. S. 19, 24 (1989).
7. See Roberts v. U. S. Jaycees, 468 U. S. 609, 618-19, 622 (1984) (creating the categories of intimate and expressive association).
8. But see Joseph Blocher, Rights To and Not To, 100 CALIF. L. REV. 761, 793 (2012) ("[I]t might be appealing to say, as many courts and commentators have, that the right to associate simply must include the right not to associate. But this is not true as a purely logical matter. The acts of associating and not-associating are neither identical nor interdependent. If the purpose of the associational right were solely to permit people to gather... then there would be nothing 'necessary' nor even logical about a right to exclude.... And if the purpose of the right were solely to permit groups protect 'certain intimate relationships'-intimacy, after all, is one of the primary interests served by the right of association-then there would be less need to protect the right to associate." (footnote omitted)).
9. See, e.g., Gay Students Org. of Univ. of N. H. v. Bonner, 509 F.2d 652, 663 (1st Cir. 1974).
10. See, e.g., Walker v. City of Birmingham, 388 U. S. 307, 315 (1967).
11. See, e.g., Dennis v. United States, 341 U. S. 494, 497, 516-17 (1951).
12. See, e.g., Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U. S. 1, 44-46 (1890).
13. For example, the state may inhibit our ability to embrace through chilling effects that arise from monitoring and surveillance of our actual or potential groups. See Katherine J. Strandburg, Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance, 49 B. C. L. REV. 741, 744 (2008). Strandburg helpfully highlights how "relational surveillance" can chill "emergent association. " Id. at 744, 745.
14. On some level, the state will always limit our establishment, as with criminal prohibitions that restrict certain conduct within groups. See, e.g., Reynolds v. United States, 98 U. S. 145, 166 (1878) (upholding the Utah Territory's bigamy statute);
15. People ex rel. Gallo v. Acuna, 929 P.2d 596, 601-02, 608 (Cal. 1997) (upholding an injunction barring members of an alleged "criminal street gang" from "[s]tanding, sitting, walking, driving, gathering or appearing anywhere in public view" with one another (emphasis omitted)).
16. See Roberts v. U. S. Jaycees, 468 U. S. 609, 618 (1984).
17. N. Y. State Club Ass'n v. City of New York, 487 U. S. 1, 13 (1988).
18. Boy Scouts of Am. v. Dale, 530 U. S. 640, 655 (2000).
19. See Roberts, 468 U. S. at 617-18 ("[T]he Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty.").
20. The category of intimate association likely originated in a 1980 article by Kenneth Karst. See Kenneth L. Karst, The Freedom of Intimate Association, 89 YALE L. J. 624, 629 (1980) ("By 'intimate association' I mean a close and familiar personal relationship with another that is in some significant way comparable to a marriage or family relationship. ").
21. The lack of guidance is evident in the lower courts and in subsequent Supreme Court cases. See, e.g., FW/PBS, Inc. v. City of Dall., 493 U. S. 215, 237 (1990) (holding that patrons of a motel which limited room rentals to ten hours did not have an intimate relationship protected by the Constitution)
22. overruled in part on other grounds by City of Littleton v. Z. J. Gifts D-4, L. L. C., 541 U. S. 774 (2004);
23. Poirier v. Mass. Dep't of Corr., 558 F.3d 92, 96 (1st Cir. 2009) (refusing to extend protections of intimate association to "[t]he unmarried cohabitation of adults");
24. Borden v. Sch. Dist. of E. Brunswick, 523 F.3d 153, 173 (3d Cir. 2008) ("While the Supreme Court has held that the Constitution protects certain relationships, those protected relationships require a closeness that is not present between a high school football coach and his team.");
25. Swanson v. City of Bruce, 105 F. App'x 540, 542 (5th Cir. 2004) ("The tight fellowship among police officers, precious though it may be, does not include such 'deep attachments and commitments of thoughts, experiences, and beliefs' or personal aspects of officers' lives sufficient to constitute an intimate relationship. "
26. (quoting Roberts, 468 U. S. at 620));
27. Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir. 2004) (assuming, for summary judgment purposes, that a dating relationship between two police officers qualified as an intimate association because the two were monogamous, had lived together, and were romantically and sexually involved);
28. Akers v. McGinnis, 352 F.3d 1030, 1039-40 (6th Cir. 2003) (concluding that some types of personal friendships may constitute intimate associations);
29. Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 442 (3d Cir. 2000) (holding that a college fraternity is not an intimate association);
30. La. Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1497-98 (5th Cir. 1995) (extending the right of "private association" to a private club);
31. Salvation Army v. Dep't of Cmty. Affairs, 919 F.2d 183, 198 (3d Cir. 1990) (holding that intimate association is unlikely to cover religious groups because "[m]ost religious groups do not exhibit the distinctive attributes the Court has identified as helpful in determining whether the freedom of association is implicated");
32. Rode v. Dellarciprete, 845 F.2d 1195, 1205 (3d Cir. 1988) (holding that a brother-in-law relationship is not protected as an intimate association).
33. The hypothetical group is not chosen at random. See Baylen J. Linnekin, "Tavern Talk" and the Origins of the Assembly Clause: Tracing the First Amendment's Assembly Clause Back to Its Roots in Colonial Taverns, 39 HASTINGS CONST. L. Q. 593 passim (2012) (describing the central role of colonial taverns at the nation's founding).
34. See City of Dall. v. Stanglin, 490 U. S. 19, 23 (1989) ("Unless laws 'create suspect classifications or impinge upon constitutionally protected rights', it need only be shown that they bear 'some rational relationship to a legitimate state purpose.'" (citations omitted)); see also infra text accompanying notes 188-93 (discussing Stanglin).
35. See Douglas O. Linder, Comment, Freedom of Association After Roberts v. United States Jaycees, 82 MICH. L. REV. 1878, 1886 (1984) (referencing the "implausible prospect" that the government might start to regulate "private bridge clubs").
36. I do not mean to suggest that the greater visibility of the online boundaries increases a group's inherent expressiveness. Here I disagree with Eugene Volokh, who has argued that "[w]hen a club is forced to admit unwanted members, the danger is the possibility that 'admission of [the unwanted people] as voting members will change the message communicated by the group's speech, '" but "[w]hen a[n online] conference is forced to accept unwanted speakers, the danger is the certainty that admission of the speakers will change the message communicated within [that forum]." Eugene Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. CHI. LEGAL F. 377, 392 (emphasis added)
37. (quoting Roberts v. U. S. Jaycees, 468 U. S. 609, 627 (1984)). Volokh's distinction elides the sociological reality that forcing a group-online or offline-to accept unwanted members inherently alters the message conveyed by the group's very existence.
38. See, e.g., People ex rel. Gallo v. Acuna, 929 P.2d 596, 609 (Cal. 1997) (holding that a criminal gang was not an intimate or expressive association).
39. See, e.g., Civil Rights Act of 1964 § 201, 42 U. S. C. § 2000a (a) (2006) (forbidding places of public accommodation from discriminating against any individual "on the ground of race, color, religion, or national origin");
40. Civil Rights Act of 1964 § 703 (outlawing employment discrimination "because of [an] individual's race, color, religion, sex, or national origin");
41. Americans with Disabilities Act of 1990 § 302, 42 U. S. C. § 12182 (a) (2006) (forbidding places of public accommodation from discriminating against any individual "on the basis of disability").
42. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 36 (1989).
43. Lawrence Lessig, The Zones of Cyberspace, 48 STAN. L. REV. 1403, 1403 (1996); (Pubitemid 126406383)
44. see also ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 221 (3d ed. 2007) ("[T]he story of my life is always embedded in the story of those communities from which I derive my identity."); Taylor, supra note 39, at 35 ("A self can never be described without reference to those who surround it.");
45. Susan P. Crawford, Who's In Charge of Who I Am? Identity and Law Online, in THE STATE OF PLAY: LAW, GAMES, AND VIRTUAL WORLDS 198, 199 (Jack M. Balkin & Beth Simone Noveck eds., 2006)
46. [hereinafter THE STATE OF PLAY] ("Identity is by definition a group project, something created by the context in which the identified operates.");
47. Katelyn Y. A. McKenna & John A. Bargh, Coming Out in the Age of the Internet: Identity "Demarginalization" Through Virtual Group Participation, 75 J. PERSONALITY & SOC. PSYCHOL. 681, 692 (1998) ("Just as with nonelectronic group identities, virtual groups are important to the daily lives of their members, and virtual group identities become an important part of the self." (citation omitted));
48. Alan Jacobs, Facing Facebook Lock-in, NEW ATLANTIS (May 19, 2010, 6:33 AM), http://text-patterns.thenewatlantis.com/2010/05/facing-facebooklock-in.html (observing that social networking sites like Facebook are "fundamentally social" because "the value of the service lies in the relation of your data to other people's data").
49. RAYMOND S. R. KU & JACQUELINE LIPTON, CYBERSPACE LAW: CASES AND MATERIALS, at xix (3d ed. 2010). The Supreme Court recently noted that "the advent of electronic media and social-networking sites reduces the importance" of chalkboards and bulletin boards.
50. Christian Legal Soc'y of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2991 (2010).
51. The social networking site Nextdoor connects neighbors with one another. See Gracie Bonds Staples, Social Network Unites Neighbors: Metro Atlantans Get to Know One Another, Give Advice on Free Website, ATLANTA J.-CONST., Jan. 17, 2012, at D1. The site's founder notes: "Facebook connects us to friends and family, LinkedIn connects us to business associates and Twitter connects us to those with shared interests,... [b]ut there [was] no social network that connect[ed] us to one of the most important communities of them all: the neighborhood." Id. (internal quotation marks omitted).
52. Robin Wilson highlights popular sites that facilitate virtual sex like Red-LightCenter.com and Sociolotron. com. Robin Fretwell Wilson, Sex Play in Virtual Worlds, 66 WASH. & LEE L. REV. 1127, 1131 (2009). I recognize that similar sites are now pervasive but will refrain from any string cites here.
53. Readers who post comments to stories and blog entries "help create the site's content through their comments", and in this way a kind of group forms around the initial author and the authors (known or anonymous) of subsequent commentary. Beth Simone Noveck, Designing Deliberative Democracy in Cyberspace: The Role of the Cyber-Lawyer, 9 B. U. J. SCI. & TECH. L. 1, 41 (2003);
54. cf. HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY: HOMESTEADING ON THE ELECTRONIC FRONTIER, at xx (MIT Press 2000) (1993) (defining a virtual community as a "social aggregation[] that emerge[s] from the Net when enough people carry on... public discussions long enough, with sufficient human feeling, to form webs of personal relationships in cyberspace"). For this reason, blogs and online articles with "open" comments to which anyone can post a reply may actually decrease rather than increase what Cass Sunstein has called "[e]nclave [d]eliberation. "
55. See CASS SUNSTEIN, REPUBLIC. COM 2.0, at 76 (2007).
56. See, e.g., VIRTUALCHURCH. COM, http://www.virtualchurch.com ("Church Wherever You Are") (last visited Apr. 12, 2013);
57. CHURCH OF FOOLS, http://www.churchoffools.com (last visited Apr. 12, 2013) ("[T]he world's first 3D online church.");
58. VIRTUAL CHURCH OF THE BLIND CHIHUAHUA, http://www.dogchurch.org/index. shtml (last visited Apr. 12, 2013).
59. See generally JOHN R. BOWEN, RELIGIONS IN PRACTICE: AN APPROACH TO THE ANTHROPOLOGY OF RELIGION 210-26 (5th ed. 2011) (describing the current landscape of virtual churches). For a defense of the theological and ecclesiological significance of virtual churches
60. see generally DOUGLAS ESTES, SIMCHURCH: BEING THE CHURCH IN THE VIRTUAL WORLD (2009). Estes defines a virtual church "as a virtually localized assembly of the people of God dwelling in meaningful community with the task of building the kingdom." Id. at 37 (emphasis omitted).
61. See T. L. Taylor, Pushing the Borders: Player Participation and Game Culture, in STRUCTURES OF PARTICIPATION IN DIGITAL CULTURE 112, 120 (Joe Karaganis ed., 2007) ("Large persistent world games like EverQuest and Star Wars Galaxies are excellent examples of game spaces that cannot be mastered by single players. The design of the games themselves reward-and often require-sociality and reliance on others."). The explosion of online gaming has captured millions of players. In 2006, Gregory Lastowka and Dan Hunter reported millions of users on The Sims Online, There, EverQuest, Earth & Beyond, Star Wars Galaxies, Ultima Online, and Dark Age of Camelot.
62. See F. Gregory Lastowka & Dan Hunter, Virtual Worlds: A Primer, in THE STATE OF PLAY, supra note 41, at 13, 14. They noted that "[i]n South Korea, the game Lineage is currently more popular than television, with some 4 million registered participants." Id. These figures have grown significantly in the four years since Lastowka and Hunter wrote. World of Warcraft recently reached over twelve million subscribers.
63. Press Release, Blizzard Entertainment, World of Warcraft Subscriber Base Reaches 12 Million Worldwide (Oct. 7, 2010), http://eu.blizzard.com/en-gb/com pany/press/pressreleases.html?id=2443926;
64. see also Total MMORPG Subscriptions and Active Accounts Listed on This Site, TELENET, http://users.telenet.be/mmodata/Charts/TotalSubs. png (last visited Apr. 12, 2013) (showing that over twenty million people subscribe to various online role-playing games known as "massively multiplayer online role-playing games", or MMORPGs).
65. The most well-known example today is Wikipedia. As of this writing, Wikipedia contains over twenty million articles (including over 4.1 million articles written in English) and claims to have about 100, 000 regular contributors. Wikipedia, WIKIPEDIA, http://en. wikipedia.org/wiki/Wikipedia (last visited Apr. 12, 2013). Wikis can do more than simply aggregate and convey information; for example, some educators use them to create collaborative learning environments.
66. See, e.g., Katherine Campbell & Dee Ann Ellingson, Cooperative Learning at a Distance: An Experiment with Wikis, 3 AM. J. BUS. EDUC. 83, 83-84 (2010);
67. Martina A. Doolan, Blended Learning Unit, Collaborative Working: Wiki and the Creation of a Sense of Community, PROCEEDINGS OF THE SECOND INTERNATIONAL BLENDED LEARNING CONFERENCE 70(2007), http://homepages.stca.herts.ac.uk/ ~ct07abf/comqmad/publications/download/2007/Doolan-2007-Collaborative%20working- Wiki-and-the-creation-of-a-sense-of-community.pdf.
68. See Miriam A. Cherry, A Taxonomy of Virtual Work, 45 GA. L. REV. 951, 962-71 (2011).
69. Beth Simone Noveck, Democracy-The Video Game: Virtual Worlds and the Future of Collective Action, in THE STATE OF PLAY, supra note 41, at 257, 264.
70. Early studies linked higher levels of depression to online relationships on the assumption that they displaced more intimate offline relationships. See Robert Kraut et al., Internet Paradox: A Social Technology that Reduces Social Involvement and Psychological Well-Being?, 53 AM. PSYCHOLOGIST 1017, 1017-31 (1998). Later scholars noted that other variables may influence the purported causal relationship, including whether the offline relationships of respondents were as strong as researchers had assumed.
71. See, e.g., Jennifer Bonds-Raacke & John Raacke, MySpace and Facebook: Identifying Dimensions of Uses and Gratifications for Friend Networking Sites, 8 INDIVIDUAL DIFFERENCES RES. 27, 28 (2010) (citing earlier research indicating "that friend networking sites may provide greater benefits for users with low self-esteem and low life satisfaction");
72. Robert La Rose et al., Reformulating the Internet Paradox: Social Cognitive Explanations of Internet Use and Depression, J. ONLINE BEHAV. (2001), http://old.behavior.net/JOB/v1n2/paradox.html (noting that earlier studies assume "that face-to-face relationships are inherently superior to online relationships and neglect the possibility of hyperpersonal online interactions that may be more intimate than their offline counterparts" (citations omitted)); see also Wilson, supra note 44, at 1152 ("Despite the lack of close physical proximity, for some players, virtual relationships are more real than real-world ones.").
73. RHEINGOLD, supra note 45, at 326-28.
74. Jerry Kang, Cyber-Race, 113 HARV. L. REV. 1130, 1171-72 (2000) (footnotes omitted).
75. RHEINGOLD, supra note 45, at 330.
76. By "self-governance" I mean the First Amendment theory advanced most famously by Alexander Meiklejohn. See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 6 (1948);
77. Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245, 252;
78. see also SUNSTEIN, supra note 45, at 37 (describing the relationship between self-expression and self-government);
79. Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment", 1964 SUP. CT. REV. 191, 204-05
80. (interpreting New York Times Co. v. Sullivan, 376 U. S. 254(1964), as advancing a self-governance theory of the First Amendment). This meaning of self-governance differs from two other possibilities, neither of which I address here. The first involves the ways in which a group's politics govern its own internal practices.
81. See, e.g., James Grimmelmann, Virtual Power Politics, in THE STATE OF PLAY, supra note 41, at 146, 155. The second alternative meaning of self-governance is the libertarian use of that term in some of the cyberspace literature.
82. See, e.g., Jack L. Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199, 1212-16 (1998) (Pubitemid 128443631)
83. (critiquing David R. Johnson & David Post, Law and Borders-The Rise of Law in Cyberspace, 48 STAN. L. REV. 1367, 1387 (1996) (arguing that cyberspace should be self-regulated)).
84. We the People: Your Voice in Our Government, WHITE HOUSE, https://petitions.whitehouse.gov (last visited Apr. 12, 2013). As of this writing, if a petition receives 100, 000 signatures within thirty days, "it will be reviewed by the Administration and we will issue a response." Id. In 2012, the Obama Administration released official responses to citizen petitions on topics including "Changing How Wall Street Works", "Protecting the Health of Women While Accommodating Religious Liberty", and "Building a 21st Century Immigration System."
85. Featured Responses, WHITE HOUSE, https://wwws. whitehouse.gov/ petitions#!/responses (last visited Apr. 12, 2013) (follow "Show More Responses").
86. The virtual protest is complicated by government agencies with virtual sites on commercial platforms. For example, NASA, NOAA, DOD, and the CDC operate virtual sites in Second Life, which is privately owned and operated by a company called Linden Lab. Katy Human, Science Web Pulls Curious into Playful Virtual World, DENVER POST, Feb. 19, 2007, at A1;
87. Cheryl Pellerin, Air Force Eyes New Learning Systems in "Second Life", U. S. DEP'T DEF. (May 9, 2011), http://www.defense.gov/news/ newsarticle.aspx?id=63873. These embedded relationships raise a host of interesting First Amendment questions: Can the federal government censor a protest in Second Life? Can Linden Lab censor a protest of a federal virtual site? Can Linden Lab censor the federal government's virtual site, or prevent the federal government from censoring a protest? Can the FBI serve a warrant on Linden Lab for the names of virtual protesters suspected of national security risks? What about non-U. S. citizens participating in the virtual protest but physically residing outside of U. S. jurisdiction? Cf. infra notes 168-77 and accompanying text (discussing the online phenomenon of nested groups).
88. The virtual protest is not just a thought experiment. In 2007, IBM employees in Italy protested a management decision through a virtual protest at IBM's Second Life headquarters. See Cherry, supra note 49, at 990-91. Nearly two thousand people from over thirty countries participated in the twelve-hour protest on IBM's virtual islands. Wendy Leung, STRIKE!* (*Banana Suit Optional), GLOBE & MAIL (Toronto), Oct. 15, 2007, at L1. The protest included avatars who "raised placards and shouted demands through bullhorns." Id. Some time after the protest, the head of IBM Italy resigned, and IBM management reversed course.
89. On Strike, Virtually, ECONOMIST, Mar. 15, 2008, available at http://www.economist.com/node/10853751.
90. RHEINGOLD, supra note 45, at 349; see also Noveck, supra note 45, at 26 ("[A]ll expressive activity is at the margin in the topography of cyberspace; there is no center."). The decentering of place is not the loss of place. As Dan Hunter has observed, our online presence unfolds in metaphorical places that bring with them attendant legal concerns.
91. Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 CALIF. L. REV. 439, 472-75 (2003). Hunter summarizes earlier scholarly resistance to the metaphor of "cyberspace as place" but convincingly argues that scholars and courts have now embraced it (although not always with careful reflection about the consequences of doing so). See id. at 447-58.
92. Of course, these efficiencies benefit groups of all kinds. As Danielle Keats Citron observes, "[o]nline, bigots can aggregate their efforts even when they have insufficient numbers in any one location to form a conventional hate group. " Danielle Keats Citron, Cyber Civil Rights, 89 B. U. L. REV. 61, 63 (2009).
93. See Seth F. Kreimer, Technologies of Protest: Insurgent Social Movements and the First Amendment in the Era of the Internet, 150 U. PA. L. REV. 119, 137 (2001).
94. Molly Beutz Land, Networked Activism, 22 HARV. HUM. RTS. J. 205, 218 (2009).
95. See, e.g., FREERICE, http://www.freerice.com (last visited Apr. 12, 2013) (online trivia game that donates ten grains of rice through the World Food Programme for each correct answer entered by a user).
96. See Rochelle Baker, Abbotsford's Project G Flashes Shoppers: Mob Mentality Raises $600, ABBOTSFORD TIMES (Dec. 20, 2011), http://www.abbotsfordtimes.com/news/story.html? id=5889600 (reporting on a flash mob at a local mall's food court organized as a fundraising effort for a community organization).
97. See Matthew Fraser & Soumitra Dutta, Barack Obama and the Facebook Election, U. S. NEWS & WORLD REP. (Nov. 19, 2008), http://www.usnews.com/ opinion/articles/2008/11/19/barack-obama-and-the-facebook-election.
98. Brian Stelter, The Facebooker Who Friended Obama: A Company Founder Brings Social Networking to Politics, N. Y. TIMES, July 7, 2008, at C1.
99. Frank Davies, Web Politics Come of Age With Obama, CONTRA COSTA TIMES (Feb. 24, 2008), http://www.contracostatimes.com/ci-8351967?source=rss.
100. Jared Keller, Evaluating Iran's Twitter Revolution, ATLANTIC (June 18, 2010, 8:00 AM), http://www.theatlantic.com/technology/archive/2010/06/ evaluating-irans-twitter-revolu tion/58337/. South Korean liberal parties also used Twitter and social media to mobilize support for local elections in 2010. Id.;
101. see also Dae Ryun Chang, Twitter's Surprising Impact on the South Korean Election, HARV. BUS. REV. BLOG NETWORK (June 11, 2010, 8:57 AM), http://blogs.hbr.org/cs/2010/06/twitters-new-role-in-south-kor.html (describing how liberal parties in South Korea gained political support from younger voters through Twitter campaigns).
102. As of this writing, the website GoDaddy.com is selling Internet domain names for as little as one dollar per month. GODADDY, http://www.godaddy.com (last visited Apr. 12, 2013).
103. See Lee Tien, Who's Afraid of Anonymous Speech? McIntyre and the Internet, 75 OR. L. REV. 117, 128-31 (1996) (discussing the Court's historic concern for protecting various forms of "cheap speech");
104. see also Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L. J. 1805, 1833-43 (1995) (discussing social consequences of changes in existing modes of communication).
105. See, e.g., Reno v. ACLU, 521 U. S. 844, 870 (1997) ("[The Internet] provides relatively unlimited, low-cost capacity for communication of all kinds.... Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.").
106. David G. Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. CHI. LEGAL F. 139, 162 n. 51.
107. David G. Post, New World War: Cancelbunny and Lazarus Battle It out on the Frontier of Cyberspace-and Suggest the Limits of Social Contracts, REASON, Apr. 1996, at 28, 29. Post suggests that a Usenet group may "properly be considered a 'person' or an 'association' consisting of its members at any given time." Post, supra note 81, at 163 n. 51.
108. See, e.g., Michiko Kakutani, Upheaval and Hope in a Land of Turmoil, N. Y. TIMES, Aug. 2, 2011, at C1. The use of online technology by the Occupy Movement is another rapidly evolving example of how online groups can facilitate dissent.
109. See, e.g., OCCUPYSTL. ORG, http://www.occupystl.org (last visited Apr. 12, 2013). On the broader connections between Occupy and the kinds of ideas explored in this Article
110. see Jeremy Kessler, The Closing of the Public Square, NEW REPUBLIC (Jan. 12, 2012), http://www.tnr.com/book/review/the-closing-the-public-square-john- inazu-timothy-zick.
111. See, e.g., Texas v. Johnson, 491 U. S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.");
112. cf. Communist Party of the U. S. v. Subversive Activities Control Bd., 367 U. S. 1, 137 (1961) (Black, J., dissenting) ("I do not believe that it can be too often repeated that the freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.").
113. See, e.g., Abigail Sullivan Moore, A Long-Distance Affair, N. Y. TIMES, Jan. 9, 2011, at ED22 (describing how college students use the Internet to maintain long-distance relationships that began in high school).
114. See John Raacke & Jennifer Bonds-Raacke, MySpace and Facebook: Applying the Uses and Gratifications Theory to Exploring Friend-Networking Sites, 11 CYBERPSYCHOL. & BEHAV. 169, 171 (2008).
115. See Amy Harmon, Over the River? Not Anymore. Grandma's at Home on Screen, N. Y. TIMES, Nov. 27, 2008, at A1.
116. See eHARMONY, http://www.eharmony.com (last visited Apr. 12, 2013) ("On average, 542 people get married every day in the United States because of eHarmony; that accounts for nearly 5% of new U. S. marriages.").
117. See Andrew Osterland, Not Clued in About LinkedIn? Big Mistake, Advisers Say, INVESTMENTNEWS (Feb. 3, 2012, 10:48 AM), http://www.investmentnews.com/ article/20120203/FREE/120209976 (relating the story of a financial adviser who met a wealthy client through LinkedIn).
118. See generally WENDY KAYS, GAME WIDOW (2008) (discussing "game widows" whose husbands are consumed by online games);
119. Winda Benedetti, Game Widows Grieve 'Lost' Spouses, NBC NEWS (Aug. 22, 2007, 8:48 PM), http://www.nbcnews.com/id/20397322#.UUS1PKU1blJ (same);
120. Sarah Boesveld & Zosia Bielski, 40, Married, Gaming Addict, GLOBE & MAIL (Toronto), Oct. 31, 2008, at L1 (same);
121. An extreme example is the story of a South Korean couple who tended to their virtual child for hours on end in one of these online worlds while their actual child died of malnourishment and neglect. See Choe Sang-Hun, As Internet Swallows Adults, South Korea Expands Addiction Aid, N. Y. TIMES, May 29, 2010, at A4;
122. South Korea: Fatal Addiction, GUARDIAN (London), July 14, 2010, at 21.
123. See, e.g., Julie Bosman, Small Bookstores Struggle for Niche in Shifting Times, N. Y. TIMES, Jan. 24, 2011, at B3 (noting that bricks-and-mortar bookstores, including both independent bookstores and "big-box" retailers Barnes & Noble and Borders, struggle to survive in the digital age where consumers increasingly shop on Amazon. com);
124. Jessica E. Vascellaro & Sam Schechner, Slow Fade-Out for Video Stores, WALL ST. J., Sept. 30, 2010, at A6 (noting the impact of Netflix and on-demand video products on the recent demise of the movie rental industry).
125. See Marisa Taylor, New York Removes Sex Offenders from Facebook and MySpace, WALL ST. J. DIGITS BLOG (Dec. 4, 2009, 7:15 AM), http://blogs.wsj.com/ digits/2009/12/04/newyork-removes-sex-offenders-from-facebook-and-myspace/ (describing efforts to prevent "sexual predators from trolling the Internet in search of unsuspecting children" (internal quotation marks omitted)).
126. See Kevin Helliker, Toll of Online Plot May Rise to Three, WALL ST. J. (Nov. 28, 2011), http://online.wsj.com/article/ SB10001424052970203802204577064681523171946.html.
127. The online "dating" service Ashley Madison, for instance, matches people who are already in relationships. Its slogan is "Life is short. Have an Affair", and it boasts over eighteen million anonymous members. See ASHLEY MADISON, http://www.ashleymadison. com (last visited Apr. 12, 2013).
128. See Jack M. Balkin & Beth Simone Noveck, Introduction to THE STATE OF PLAY, supra note 41, at 3, 3 ("[M]any of the 20 to 30 million regular participants [in virtual worlds] now spend more time in virtual environments than they do at their real-world jobs or engaged with their real-world communities; according to one recent estimate, the average number of hours played is almost twenty-two per week.");
129. Viktor Mayer-Schönberger & John Crowley, Napster's Second Life? The Regulatory Challenges of Virtual Worlds, 100 NW. U. L. REV. 1775, 1782 (2006) (suggesting that 9.4 million subscribers to a group of thirty-two virtual worlds are "'in-world' for about 22 hours per week");
130. Wagner James Au, Second Life Marketing: Still Strong, BUS. WK. (May 5, 2008), http://www.businessweek.com/technology/content/may2008/tc2008054-665274. htm (Second Life's "most active users" include "550, 000 people who go 'in-world' an average of 40 hours a month"). In 2009, Linden Lab, the operator of Second Life, reported that in its first six years of existence, users had logged one billion hours in Second Life.
131. See Press Release, Linden Lab, 1 Billion Hours, 1 Billion Dollars Served: Second Life Celebrates Major Milestones for Virtual Worlds (Sept. 22, 2009), http://lindenlab.com/releases/1-billion-hours-1-billion-dollars-served- secondlife-celebrates-major-milestones-for-virtual-worlds.
132. Winda Benedetti, I Can't Help It-I Wish I Were My Avatar, NBC NEWS CITIZEN GAMER (Nov. 25, 2008, 6:56 AM), http://www.nbcnews.com/id/27897933/ns/ technology-and-science-games/t/i-cant-help-it-i-wish-i-were-my-avatar/.
133. Facebook famously employs a form of "emotional blackmail" to retain users who attempted to deactivate their accounts. See Jessica Guynn, How to Stop Networking with Facebook, Twitter, Google+, L. A. TIMES, Aug. 7, 2011, at B1. During the deactivation process, Facebook displays pictures of "friends" who supposedly "will miss you" if you leave the social network. Id.
134. See Steve Eder, Deaths Pose Test for Facebook, WALL ST. J. (Feb. 11, 2012), http://online.wsj.com/article/ SB10001424052970203315804577205122381359482.html (describing Facebook's policy of placing the profile page of a deceased person in a "memorialized state" that freezes the user's content but still allows friends to post on the deceased's profile).
135. THUCYDIDES, THE PELOPONNESIAN WAR, II.43, at 94 (Martin Hammond trans., Oxford World's Classics 2009) (c. 431 B. C. E.). The immortality is a relative one. If the world ceases to exist, then so does the server space and other hardware that houses our online identities. In this sense, the permanence of online memory is inescapably tied to immanent physical structure, as opposed to transcendent appeals to the preservation of one's identity in the memory of an eternal deity. The contingent existential differences are not insignificant. Consider, for example, the information footprint of our great-great-grandparents compared to the information footprint of today's teenagers, many of whom memorialize their everyday experiences online through Facebook and other platforms.
136. 357 U. S. 449 (1958). The case arose after the State of Alabama sought to compel the NAACP to disclose its membership list. Alabama's Attorney General John Patterson initiated an action to enjoin the NAACP from operating within the state, arguing that the group was a "business" that had failed to register under applicable state law. Id. at 452. The state court trial judge issued the injunction ex parte, explaining that he intended "to deal the NAACP a mortal blow from which they shall never recover."
137. LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 165 (2000) (internal quotation marks omitted). The judge also ordered the NAACP to produce its membership list, which Patterson had requested as part of a records review. When the NAACP refused to comply, the judge responded with a $10, 000 contempt fine, which he increased to $100, 000 five days later. After the Alabama Supreme Court rejected the NAACP's appeal of the judge's order through a series of disingenuous procedural rulings, the NAACP appealed to the United States Supreme Court. Id. at 166.
138. Patterson, 357 U. S. at 460.
139. Internal memos and drafts of the opinion reveal that Harlan was caught in tension between Justice Felix Frankfurter (who wanted the new right located squarely in the Fourteenth Amendment) and Justices William O. Douglas and Hugo Black (who wanted the right located in the First Amendment). See JOHN D. INAZU, LIBERTY'S REFUGE: THE FORGOTTEN FREEDOM OF ASSEMBLY 82-84 (2012). Early commentators drew widely divergent conclusions about the source of the new right. See id. at 82, 84-85.
140. Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293, 296 (1961);
141. Shelton v. Tucker, 364 U. S. 479, 485-86 (1960);
142. Bates v. City of Little Rock, 361 U. S. 516, 523 (1960);
143. Patterson, 357 U. S. at 460.
144. Communist Party of the U. S. v. Subversive Activities Control Bd., 367 U. S. 1 (1961);
145. Barenblatt v. United States, 360 U. S. 109 (1959);
146. Uphaus v. Wyman, 360 U. S. 72 (1959).
147. SAMUEL WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU 240 (2d ed. 1999) (internal quotation marks omitted).
148. HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 259 (Jamie Kalven ed., 1988).
149. The clearest example of the ideological divide was Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 (1963).
150. See generally INAZU, supra note 105, at 119-29 (discussing subsequent case law).
151. 468 U. S. 609 (1984).
152. Id. at 612. According to the national organization, women could be "associate individual members", id. at 613, who were ineligible to vote, hold office, or "receive certain national awards" but could "otherwise participate fully in Jaycee activities", U. S. Jaycees v. McClure, 709 F.2d 1560, 1563 (8th Cir. 1983)
153. rev'd, 468 U. S. 609 (1984).
154. Roberts, 468 U. S. at 615 (citation omitted) (internal quotation marks omitted).
155. This example is taken from Alexandra Alter, Is This Man Cheating on His Wife?, WALL ST. J., Aug. 10, 2007, at W1. Alter reports that when Ric was home-bound for five weeks, "[s]ome days, he played from a quarter to six in the morning until two in the morning, eating in front of the computer and pausing only for bathroom breaks." Id.
156. They may in fact qualify as an intimate association even if they were not married. See Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir. 2004) (assuming, for summary judgment purposes, that a dating relationship between two police officers qualified as an intimate association because the two were monogamous, had lived together, and were romantically and sexually involved).
157. Facebook.com Traffic and Demographic Statistics, QUANTCAST, http://www.quantcast. com/facebook.com (last visited Apr. 12, 2013) (estimating 146, 034, 160 unique U. S. visitors in December 2012).
158. See Rode v. Dellarciprete, 845 F.2d 1195, 1205 (3d Cir. 1988) (holding that a brother-in-law relationship is not protected as an intimate association).
159. See Roberts v. U. S. Jaycees, 468 U. S. 609, 620 (1984) (defining an intimate association as "distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship").
160. See, e.g., City of Dall. v. Stanglin, 490 U. S. 19, 23, 25 (1989) (applying rational basis scrutiny to a city ordinance governing activity that "qualifie[d] neither as a form of 'intimate association' nor as a form of 'expressive association' as those terms were described in Roberts");
161. Swank v. Smart, 898 F.2d 1247, 1251-52 (7th Cir. 1990) (concluding that the First Amendment does not protect nonintimate, nonexpressive associations);
162. Conti v. City of Fremont, 919 F.2d 1385, 1388 (9th Cir. 1990) ("[A]n activity receives no special first amendment protection if it 'qualifies neither as a form of "intimate association" nor as a form of "expressive association", as those terms were described in Roberts.'"
163. (quoting Stanglin, 490 U. S. at 25)). For additional examples of nonexpressive associations
164. see Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 802-03 (9th Cir. 2011) (Christian sorority);
165. Villegas v. City of Gilroy (Villegas II), 484 F.3d 1136, 1137 (9th Cir. 2007) (Top Hatters Motorcycle Club)
166. aff'd on other grounds on reh'g sub nom. Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950 (9th Cir. 2008);
167. Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of N. Y., 502 F.3d 136, 149 n. 2 (2d Cir. 2007) (noting that trial court had determined, for purposes of a preliminary injunction, that a fraternity was not an expressive association);
168. Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d 435, 438 (3d Cir. 2000) (fraternity);
169. Semaphore Entm't Grp. Sports Corp. v. Gonzalez, 919 F. Supp. 543, 550 n. 4 (D. P. R. 1996) (Ultimate Fighting Championship);
170. Cent. Tex. Nudists v. Cnty. of Travis, No. 03-00-00024-CV, 2000 Tex. App. LEXIS 8136, at *12-13 (Dec. 7, 2000) (nudists). For examples of websites corresponding to some of these groups
171. see ALPHA EPSILON PI, http://www.aepi.org (last visited Apr. 12, 2013);
172. CENTRAL TEXAS NUDISTS, http://www.codigest.org/ctn (last visited Apr. 12, 2013);
173. TOP HATTERS MOTORCYCLE CLUB, http://www.tophatters-mc.com (last visited Apr. 12, 2013);
174. ULTIMATE FIGHTING CHAMPIONSHIP, http://www.ufc.com (last visited Apr. 12, 2013).
175. Roberts, 468 U. S. at 618.
176. Villegas v. City of Gilroy, 363 F. Supp. 2d 1207, 1219 (N. D. Cal. 2005)
177. aff'd, Villegas II, 484 F.3d 1136 (9th Cir. 2007)
178. aff'd on other grounds on reh'g sub nom. Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950 (9th Cir. 2008).
179. Villegas II, 484 F.3d at 1137.
180. See TOP HATTERS MOTORCYCLE CLUB, http://www.tophatters-mc.com/home.html (last visited Apr. 12, 2013).
181. Photos, TOP HATTERS MOTORCYCLE CLUB, http://www.tophatters-mc.com/photos. html (last visited Apr. 12, 2013).
182. Jukebox, TOP HATTERS MOTORCYCLE CLUB, http://www.tophatters-mc.com/ jukebox/jukebox.html (last visited Apr. 12, 2013).
183. Memorial, TOP HATTERS MOTORCYCLE CLUB, http://www.tophatters-mc.com/ memorial.html (last visited Apr. 12, 2013).
184. See Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 232 (1983) ("[J]ust as there is a danger of improper motivation in the formulation and adoption of viewpoint-based restrictions in the legislative and administrative processes, so too is there a danger of improper motivation in the interpretation and application of such restrictions in the judicial process.").
185. Cf. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 414 (1996) ("First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives."). (Pubitemid 126408717)
186. See INAZU, supra note 105, at 20-62 (chronicling the prominence of the right of assembly in the Democratic-Republican Societies, abolitionist and suffragist movements, labor movements, and civil rights advocacy).
187. Edwards v. South Carolina, 372 U. S. 229, 235 (1963). Nor is the right of assembly textually limited to assembly for the purposes of petition.
188. See INAZU, supra note 105, at 21-25;
189. Ashutosh Bhagwat, Associational Speech, 120 YALE L. J. 978, 990-91 (2011).
190. Michael W. McConnell, Freedom by Association, FIRST THINGS, Aug./Sept. 2012, at 39, 41 (reviewing Inazu, supra note 105).
191. See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 905-06 (2010) ("With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.");
192. Religious Tech. Ctr. v. Lerma, 908 F. Supp. 1353, 1359 (E. D. Va. 1995) ("Rather than publishing in a newspaper, Lerma has used the Internet, which is rapidly evolving into both a universal newspaper and public forum. And although the law has not yet decided how to deal with the Internet, it is certain that this form of communication will retain First Amendment protections.");
193. Lee J. Strang, The Meaning of "Religion" in the First Amendment, 40 DUQ. L. REV. 181, 203 (2002) ("If one holds beliefs that are admittedly not religious in the traditional sense, in the sense the word religion was used by the Ratifiers and Framers of the First Amendment, the Court will still entitle those beliefs to the same protection as admittedly religious (or traditional) beliefs.");
194. see also District of Columbia v. Heller, 554 U. S. 570, 582 (2008) ("Just as the First Amendment protects modern forms of communications... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." (citations omitted)).
195. See, e.g., Poulos v. New Hampshire, 345 U. S. 395, 426 (1953) (Douglas, J., dissenting) ("There is no free speech in the sense of the Constitution when permission must be obtained from an official before a speech can be made. That is a previous restraint condemned by history and at war with the First Amendment.");
196. cf. Near v. Minnesota ex rel. Olson, 283 U. S. 697, 713 (1931) ("[I]t has been generally, if not universally, considered that it is the chief purpose of the guaranty [of liberty of the press] to prevent previous restraints upon publication. ").
197. The clearest characterization of this idea is "intellectual privacy." See Neil M. Richards, Intellectual Privacy, 87 TEX. L. REV. 387 passim (2008).
198. See, e.g., Ashcroft v. Free Speech Coal., 535 U. S. 234, 250 (2002) (virtual child pornography);
199. Reno v. ACLU, 521 U. S. 844, 868 (1997) (online pornography);
200. Texas v. Johnson, 491 U. S. 397, 414-16 (1989) (burning flag);
201. United States v. O'Brien, 391 U. S. 367, 376 (1968) (burning draft card).
202. These ideas can also be illustrated in an example taken from labor law. Section 7 of the National Labor Relations Act of 1935 (NLRA) protects "concerted activities" prior to the formation of a union. See 29 U. S. C. § 157 (2006) (codifying employees' "right to self-organization, to form, join, or assist labor organizations... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection"). The National Labor Relations Board (NLRB) has concluded that the NLRA protects an employee's online discussions about the terms and conditions of her employment, discussions that could lead to further "concerted activit[ies]" among a group of co-workers.
203. See, e.g., OFFICE OF THE GEN. COUNSEL, NLRB, MEMORANDUM OM 12-31, REPORT OF THE ACTING GENERAL COUNSEL CONCERNING SOCIAL MEDIA CASES 4-5 (2012) (noting that the NLRB's determination that a collections agency's rule that prohibited "[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media" unlawfully restricted Section 7 activity and that a collection agent's Facebook comments that were critical of her employer and that initiated an online discussion with other employees about their working conditions constituted protected "concerted activity" (internal quotation marks omitted)).
204. Cf. GLENN ABERNATHY, THE RIGHT OF ASSEMBLY AND ASSOCIATION 173 (1961) ("Freedom to assemble need not be artificially narrowed to encompass only the physical assemblage in a park or meeting hall... [but] can justifiably be extended to include as well those persons who are joined together through organizational affiliation. "); Tien, supra note 79, at 176 ("Bulletin boards, mailing lists, and newsgroups are more than just talk. They are ways that people assemble in cyberspace.").
205. Consider the Boy Scouts of America, which claimed a membership of roughly 900, 000 Boy Scouts in 2010. BOY SCOUTS AM., 2010 ANNUAL REPORT 18, available at http://www.scouting.org/About/AnnualReports/PreviousYears/2010.aspx. The 2010 National Scout Jamboree (the largest single location gathering of Boy Scouts) drew approximately 30, 000 Scouts.
206. National Scout Jamboree, BOY SCOUTS AM., http://www.scouting.org/About/ FactSheets/2010-National-Jamboree.aspx (last visited Apr. 12, 2013). Large membership list organizations like AARP (formerly known as the American Association of Retired Persons) and the National Rifle Association function similarly.
207. 307 U. S. 496 (1939). This pivotal case drew a much-heralded amicus brief from the American Bar Association's (ABA) Committee on the Bill of Rights, which emphasized that "the integrity of the right 'peaceably to assemble' is an essential element of the American democratic system." See Inazu, supra note 105, at 54-55 (internal quotation marks omitted) (discussing the ABA's amicus brief and its reception).
208. Hague, 307 U. S. at 515 (plurality opinion).
209. Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U. S. 727, 802-03 (1996) (Kennedy, J., concurring in part and dissenting in part).
210. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U. S. 819, 830 (1995);
211. cf. Putnam Pit, Inc. v. City of Cookeville, 221 F.3d 834, 842 (6th Cir. 2000) (applying public forum analysis to a website).
212. See Karst, supra note 29, at 629-37 (describing the values of intimate association); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012) (noting that "the text of the First Amendment itself... gives special solicitude to the rights of religious organizations");
213. Richard W. Garnett, Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?, 22 ST. JOHN'S J. LEGAL COMMENT. 515, 528-29 (2007) (discussing the special constitutional status of churches).
214. U. S. CONST. amend. I (emphasis added).
215. J. P. Ludington, Annotation, What Constitutes Offense of Unlawful Assembly, 71 A. L. R. 2d 875, 878 (1960) (footnotes omitted).
216. In Cole v. Arkansas, the Supreme Court upheld such a state criminal statute that outlawed "any person acting in concert with one or more other persons, to assemble at or near any place where a 'labor dispute' exists and by force or violence prevent or attempt to prevent any person from engaging in any lawful vocation" against a First Amendment challenge. 338 U. S. 345, 348 (1949) (internal quotation marks omitted). The Court first noted that the statute did not "penalize the promotion, encouragement, or furtherance of peaceful assembly" and then held that "it [was] no abridgment of free speech or assembly" for the state to ban "promoting, encouraging and aiding an assemblage the purpose of which is to wreak violence." Id. at 353.
217. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam);
218. see also Whitney v. California, 274 U. S. 357, 376 (1927) (Brandeis, J., concurring) ("Fear of serious injury cannot alone justify suppression of free speech and assembly.... There must be reasonable ground to believe that the danger apprehended is imminent.")
219. overruled by Brandenburg, 395 U. S. 444;
220. Abrams v. United States, 250 U. S. 616, 627 (1919) (Holmes, J., dissenting) ("[T]he United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.");
221. Schenck v. United States, 249 U. S. 47, 52 (1919) ("The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.").
222. See Brandenburg, 395 U. S. at 449 n. 4 ("Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action...."). For some preliminary considerations of the boundaries of peaceability in the context of assembly
223. see Ashutosh Bhagwat, Liberty's Refuge, or the Refuge of Scoundrels? The Limits of the Right of Assembly, 89 WASH. U. L. REV. 1381, 1388-99 (2012);
224. John D. Inazu, Factions for the Rest of Us, 89 WASH. U. L. REV. 1435, 1438-40 (2012);
225. Timothy Zick, Recovering the Assembly Clause, 91 TEX. L. REV. 375, 385-89 (2012) (reviewing Inazu, supra note 105).
226. For example, Michael McConnell, the lead counsel for the Boy Scouts in Boy Scouts of America v. Dale, 530 U. S. 640 (2000)
227. and the Christian Legal Society in Christian Legal Society Chapter of the University California, Hastings College of the Law v. Martinez, 130 S. Ct. 2971(2010), recently argued on behalf of the Christian Legal Society that "[a]ll noncommercial expressive associations, regardless of their beliefs, have a constitutionally protected right to control the content of their speech by excluding those who do not share their essential purposes and beliefs from voting and leadership roles." Brief for Petitioner at 2
228. Christian Legal Soc'y, 130 S. Ct. 2971 (No. 08-1371)
229. WL 711183 at *2.
230. Andrew Koppelman has attributed a similar view to an array of scholars including Dale Carpenter, Richard Epstein, John McGinnis, Michael Paulsen, and Nancy Rosenblum. ANDREW KOPPELMAN WITH TOBIAS BARRINGTON WOLFF, A RIGHT TO DISCRIMINATE? HOW THE CASE OF BOY SCOUTS OF AMERICA V. JAMES DALE WARPED THE LAW OF FREE ASSOCIATION, at xii, 72-75 (2009);
231. See Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 VA. L. REV. 2043, 2087 (2004) (arguing that rather than impose a one-size-fits-all solution, we must instead look to "the nature and purposes of the game space, and its degree of commercialization" ).
232. As James Boyle has argued, the process of marking these kinds of boundaries "is one of contentious moral and political decision making about the distribution of wealth, power, and information" and "[t]he supposedly settled landscape is in fact an ever-changing scene." JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 27 (1996).
233. For critiques of my proposed line in the context of the right of assembly, see Richard A. Epstein, Forgotten No More, 13 ENGAGE 138, 157 (2012) (reviewing Inazu, supra note 105);
234. Robert K. Vischer, How Necessary is the Right of Assembly?, 89 WASH. U. L. REV. 1403 (2012) (same).
235. The libertarian alternative-a broad grasp for greater autonomy by all private groups-would threaten the totality of Title VII and public accommodations laws. The consensus liberal alternative demands what Nancy Rosenblum has called a "[l]ogic of [c]ongruence" requiring "that the internal life and organization of associations mirror liberal democratic principles and practices." NANCY L. ROSENBLUM, MEMBERSHIP AND MORALS: THE PERSONAL USES OF PLURALISM IN AMERICA 36 (1998).
236. See Dawn C. Nunziato, The Death of the Public Forum in Cyberspace, 20 BERKELEY TECH. L. J. 1115, 1116 (2005).
237. Mark A. Lemley, Place and Cyberspace, 91 CALIF. L. REV. 521, 535 (2003).
238. Cf. PruneYard Shopping Ctr. v. Robins, 447 U. S. 74, 83 (1980) (holding that constitutional rights of owners of a shopping center were not violated by preventing them from hindering the public's right of free expression);
239. Amalgamated Food Emps. Union Local 590 v. Logan Valley Plaza, Inc., 391 U. S. 308, 319-20 (1968) (concluding that because a privately owned shopping center was open to the public, it could not prevent members of the public from exercising their First Amendment rights). For a nice analysis of the potential applicability of "quasi-municipality doctrine" to the virtual world
240. see Peter Sinclair, Freedom of Speech in the Virtual World, 19 ALB. L. J. SCI. & TECH. 231, 252-57 (2009). The quasi-public nature of ISPs and their indispensable importance to what we do online also counsels in favor of network neutrality, which holds that "network providers may not discriminate against content, sites, or applications."
241. Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 PEPP. L. REV. 427, 429 (2009).
242. See, e.g., Civil Rights Act of 1964 § 703, 42 U. S. C. § 2000e-2 (a) (2006).
243. But see Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2978 (2010).
244. Cf. Roberts v. U. S. Jaycees, 468 U. S. 609, 612 (1984) (upholding a state law that compelled a national nonprofit organization to admit women as full members).
245. Students enrolled at for-profit schools accounted for only 9.2% the post-secondary student population during the 2008-2009 academic year. Daniel L. Bennett et al., Ctr. for Coll. Affordability & Productivity, For-Profit Higher Education: Growth, Innovation and Regulation 10(2010), http://heartland.org/sites/all/modules/custom/heartland-migration/files/pdfs/ 29010.pdf.
246. The average Facebook user connects to eighty of the more than 900 million community pages, groups, and events on Facebook. Infographic: Social Media Statistics for 2012, DIGITAL BUZZ BLOG (Jan. 3, 2012), http://www. digitalbuzzblog.com/social-media-statisticsstats-2012-infographic/. As of March 2011, 17.8 million LinkedIn members were part of at least one LinkedIn group.
247. Jeff Weiner, 100 Million Members and Counting..., LINKEDIN BLOG (Mar. 22, 2011), http://blog.linkedin. com/2011/03/22/linkedin-100-million/.
248. SONOMA COUNTY MOM, http://sonomacountymom.com (last visited Apr. 12, 2013).
249. This example is taken from Derek J. Moore, In World of Online Moms, Can Dads Come Out and Play?, PRESS DEMOCRAT (May 14, 2008, 3:27 AM), http://www.pressdemocrat.com/article/20080514/NEWS/805140336.
250. Roberts, 468 U. S. at 623;
251. see also Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2985 (2010) (same);
252. Abood v. Detroit Bd. of Educ., 431 U. S. 290, 233-35 (1977) (same).
253. Amy Hestir Student Protection Act, S. B. 54, 96th Gen. Assemb., 1st Reg. Sess. (Mo. 2011). The law covered both current and some former students, including "any person who was at one time a student at the school at which the teacher is employed and who is eighteen years of age or less and who has not graduated." Id. at 15. The Act stipulated: "No teacher shall establish, maintain, or use a nonwork-related internet site which allows exclusive access with a current or former student. Nothing in this subsection shall be construed as prohibiting a teacher from establishing a nonwork related internet site, provided the site is used in accordance with this section. " Id. As drafted, this provision appears to restrict any use of a site like Facebook, since Facebook "allows exclusive access." Id.
254. Jason Rosenbaum, Missouri House Approves Fix in the State 'Facebook Law', ST. LOUIS BEACON (Sept. 23, 2011, 9:58 AM), http://www.stlbeacon.org/voices/ blogs/politicalblogs/beacon-backroom/113135-missouri-house-approves-fix-in-the- state-facebook-law.
255. See Tim Barker, Teachers' Talk with Students Faces Limit, ST. LOUIS POST-DISPATCH, Aug. 4, 2011, at A1.
256. Bilateral Class-Action Complaint for Declaratory and Injunctive Relief, Thomas v. Ladue Sch. Dist., No. 4:11-cv-1453 (E. D. Mo. Aug. 19, 2011);
257. Petition for Injunctive Relief and Declaratory Judgment, Mo. State Teachers Ass'n v. State, No. 11AC-CC00553 (Mo. Cir. Ct. Cole Cnty. Aug. 19, 2011).
258. Order Entering Preliminary Injunction at 2, Mo. State Teachers Ass'n v. State, No. 11AC-CC00553 (Mo. Cir. Ct. Cole Cnty. Aug. 26, 2011).
259. Randy Turner, Nixon Signs Bill Outlawing Teacher/Student Facebook Communication, TURNER REP. (July 14, 2011, 12:37 PM), http://rturner229. blogspot.com/2011/07/nixonsigns-bill-outlawing.html;
260. see also Tim Barker, Backlash over Teacher 'Facebook Law', ST. LOUIS POST-DISPATCH, Aug. 10, 2011, at A1 (noting criticism of the "Facebook Law").
261. Jason Hancock, New 'Facebook Law' Signed: Nixon Grudgingly OKs Bill Requiring Schools to Create Online Media Policies, ST. LOUIS POST-DISPATCH, Oct. 22, 2011, at A2.
262. 490 U. S. 19, 21 (1989).
263. In 1885, an Illinois court reviewed a village ordinance that restricted as nuisances "all public picnics and open air dances within the limits of the village." Poyer v. Vill. of Des Plaines, 18 Ill. App. 225, 229 (1885).
264. See Eugene Volokh, Judge Blocks Implementation of Missouri Law Banning Teachers from Facebook "Friendships" with Under-18 Current or Former Students, VOLOKH CONSPIRACY (Aug. 26, 2011, 6:28 PM), http://volokh.com/2011/08/ 26/judge-blocks-implementation-of-mis souri-law-banning-teachers-from-facebook- friendships-with-under-18-current-or-formerstudents.
265. The Supreme Court has held that public employee expression must relate to "matters of public concern" unrelated to "official duties" in order to receive First Amendment protection. Garcetti v. Ceballos, 547 U. S. 410, 420-21 (2006);
266. accord Connick v. Myers, 461 U. S. 138, 147 (1983). Expression falling within this category is then subjected to a balancing of "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."
267. Pickering v. Bd. of Educ., 391 U. S. 563, 568 (1968).
268. Connick, 461 U. S. at 147;
269. cf. City of San Diego v. Roe, 543 U. S. 77, 83 (2004) (per curiam) ("Connick held that a public employee's speech is entitled to Pickering balancing only when the employee speaks 'as a citizen upon matters of public concern' rather than 'as an employee upon matters only of personal interest.'").
270. Roe, 543 U. S. at 78.
271. Consider online speech discussing the commonplace experiences of ordinary people-the type of speech one would expect to find in private conversations on Facebook and other social media. Normally such speech would not be "a subject of legitimate news interest" and thus would not be protected by the First Amendment. However, "people arrive at their political beliefs and are moved to political and social action largely through their personal experiences", Cynthia L. Estlund, Speech on Matters of Public Concern: The Perils of an Emerging First Amendment Category, 59 GEO. WASH. L. REV. 1, 37(1990), and "stories they hear about others' personal experiences can have a similar effect, "
272. Mary-Rose Papandrea, The Free Speech Rights of Off-Duty Government Employees, 2010 BYU L. REV. 2117, 2143. Cf. Inazu, supra note 105, at 5 ("[A]lmost every important social movement in our nation's history began not as an organized political party but as an informal group that formed as much around ordinary social activity as extraordinary political activity.").
273. Cf. Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011) (noting that it "remains true today" that "'the boundaries of the public concern test are not well defined'"
274. (quoting Roe, 543 U. S. at 83)).
275. Papandrea, supra note 199, at 2148. The Eleventh Circuit has concluded that the public concern test "is inapplicable to freedom of association claims." Hatcher v. Bd. of Pub. Educ. & Orphanage, 809 F.2d 1546, 1558 (11th Cir. 1987). The Fifth Circuit has similarly held that freedom of association claims are "not subject to the threshold public concern requirement."
276. Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir. 1991). At present, six other circuits have adopted the public concern requirement for freedom of association claims.
277. See Merrifield v. Bd. of Cnty. Comm'rs, 654 F.3d 1073, 1075 (10th Cir. 2011);
278. Hudson v. Craven, 403 F.3d 691, 696 (9th Cir. 2005) (applying the public concern test to hybrid speech and association claims);
279. Cobb v. Pozzi, 363 F.3d 89, 102-03 (2d Cir. 2004);
280. Edwards v. City of Goldsboro, 178 F.3d 231, 249-50 (4th Cir. 1999);
281. Griffin v. Thomas, 929 F.2d 1210, 1214 (7th Cir. 1991);
282. Boals v. Gray, 775 F.2d 686, 691 (6th Cir. 1985).
283. Eryn Sun, Church in Your Pocket? Facebook Multimedia Church to Launch, CHRISTIAN POST TECH (Apr. 30, 2011, 8:23 AM), http://www.christianpost.com/news/ church-in-yourpocket-facebook-multimedia-church-to-launch-50045 (internal quotation marks omitted).
284. See ST. PIXELS, http://www.stpixels.com/wp/ (last visited Apr. 12, 2013).
285. Michael Ireland, Church of the Internet Clicks into High Gear, ASSIST NEWS SERVICE, Mar. 29, 2007, available at http://www.assistnews.net/Stories/ 2007/s07030186.htm. On May 10, 2011, St. Pixels launched the first-ever interactive worship service on Facebook.
286. Eryn Sun, St. Pixels Breaks New Ground With Interactive Facebook Services, CHRISTIAN TODAY (Apr. 30, 2011), http://www.christiantoday.com/ article/st.pixels.breaks.new.ground.with.interac tive.facebook.services/27917. htm. Worshippers could "listen to Bible readings and a sermon, sing along to hymns and key in prayer requests." Id. Participants could also "weigh in with an 'amen' or 'zzzz' via a real-time feedback meter they [could] click." Id.
287. See About Us, ST. PIXELS, http://www.stpixels.com/wp/?page-id=34 (last visited Apr. 12, 2013). These means of communication facilitate new kinds of interaction. As Douglas Estes suggests in his study of virtual churches, "[t]he nature of the virtual medium encourages interactivity more than real-world churches probably could imagine (especially in light of the fear of public speaking)." Estes, supra note 46, at 111.
288. Core Values, ST. PIXELS, http://www.stpixels.com/wp/?page-id=37 (last visited Apr. 12, 2013).
289. See Terms of Service, ST. PIXELS ON FACEBOOK, http://www.stpixapp. com/fbdir/can vas/tos.php (last visited Apr. 12, 2013) ("If we all stay within the spirit of these guidelines we should all have a good time. If you do not do this, we may ask you to change your behaviour, and reserve the right to remove your chatting rights for the remainder of an event.").
290. Similarly, i-church, a virtual church founded by Diocese of Oxford of the Church of England, may permanently ban from the Courtyard (the section of its site where the church houses its chapel services and forums for prayer requests and other discussions) any individual who violates the church's Terms of Use. The Courtyard - i-church - Registration, I-CHURCH, http://www.i-church.org/ courtyard/ucp. php?mode=register (last visited Apr. 12, 2013). The Anglican Cathedral of Second Life reserves the right to eject or ban any avatar from Epiphany Island (where the church is located) "at the discretion of the Cathedral Officer present" when an avatar violates one or more of the Epiphany Rules of Behavior.
291. Epiphany Rules of Behavior, ANGLICAN CATHEDRAL OF SECOND LIFE, http://slang cath.wordpress.com/about/visitors-guide-to-the-anglican-cathedral- of-second-life/epiph any-rules-of-behavior/ (last visited Apr. 12, 2013).
292. See Neil Weinstock Netanel, Cyberspace Self-Governance: A Skeptical View from Liberal Democratic Theory, 88 CALIF. L. REV. 395, 426 (2000) ("Individuals may develop deep feelings of attachment and loyalty to virtual communities and may be devastated by perceived wrongs within those communities. In such instances, exit is far from costless." (footnote omitted)).
293. Jeff Spinner-Halev proposes this kind of approach to those who exit the Hutterites, an insular religious community that pools all assets and resources of its members. JEFF SPINNER-HALEV, SURVIVING DIVERSITY: RELIGION AND DEMOCRATIC CITIZENSHIP 72-80 (2000).
294. St. Pixels would be unlikely to find protection under the free exercise clause. See Christian Legal Soc'y of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 130 S. Ct. 2971, 2995 n. 27 (2010)
295. (rejecting free exercise challenge in light of Employment Division v. Smith, 494 U. S. 872 (1990)).
296. See, e.g., Roberts v. U. S. Jaycees, 468 U. S. 609, 613, 631 (1984) (denying protections to expressive association that places membership restrictions on women);
297. Christian Legal Soc'y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Kane, No. C 04-04484 JSW, 2006 WL 997217, at *20 (N. D. Cal. May 19, 2006) (denying protections to expressive association that limits membership on the basis of sexual orientation because the group "has not demonstrated that its ability to express its views would be significantly impaired by complying with [the school's nondiscrimination] requirement")
298. aff'd, 319 F. App'x 645 (9th Cir. 2009)
299. aff'd on other grounds sub nom., Christian Legal Soc'y, 130 S. Ct. 2971.
300. The precise contours of what qualifies as a church or church-like function for purposes of institutional protection remain unresolved. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705-06 (2012) (applying the "ministerial exception" to a church employee who taught at a school operated by the church).
301. Company Overview, EHARMONY, http://www.eharmony.com/about/eharmony/ (last visited Apr. 12, 2013).
302. EHARMONY, http://www.eharmony.com/ (last visited Apr. 12, 2013).
303. Charles Proctor, Same-Sex Site Hits Sour Note for eHarmony: Evangelicals, Gays United in Displeasure, L. A. BUS. J., Dec. 1, 2008, at 1.
304. Press Release, eHarmony, eHarmony, Inc. Settles with New Jersey Attorney General, Agrees to Launch Same-Sex Matching Service in 2009 (Nov. 19, 2008), http://www.eharmony.com/press/release/15.
305. Eric Bailey, Sex, Lies, and Internet Dating Sites: eHarmony Bows to Same-Sex Couples in Class Action Settlement, PROTECTCONSUMERJUSTICE. ORG (Jan. 26, 2010), http://www.protect consumerjustice.org/sex-lies-and-internet-dating- sites-eharmony-bows-to-same-sex-couplesin-class-action-settlement.html;
306. see also Rachel Gordon, EHarmony Settles Suit, Will Display Gay Services, S. F. CHRON., Jan. 27, 2010, at C7 (discussing the settlement agreement);
307. Press Release, eHarmony, eHarmony, Inc. Settles Class Action Lawsuit over Same-Sex Matching (Jan. 26, 2010), http://www.eharmony.com/press/release/25 (same).
308. See, e.g., Cynthia Feliciano et al., Gendered Racial Exclusion Among White Internet Daters, 38 SOC. SCI. RES. 39, 49 (2009) ("Race is one of the main selection criteria for white internet daters-whites express racial preferences even more commonly than religious or educational preferences.");
309. Kathryn A. Sweeney & Anne L. Borden, Crossing the Line Online: Racial Preference of Internet Daters, 45 MARRIAGE & FAM. REV. 740, 754 (2009) (finding that "[m]ost singles were unwilling to date across the Black/White divide").
310. See BLACKPEOPLEMEET. COM, http://www.blackpeoplemeet.com (last visited Apr. 12, 2013);
311. See JDATE. COM, http://www.jdate.com (last visited Apr. 12, 2013) (stating that it is "the Premier Jewish Community Online for Dating Jewish Singles").
312. See VEGGIEDATE, http://www.veggiedate.org (last visited Apr. 12, 2013) ("Our free vegetarian personals allow you to meet veggie singles and share organic vegetarian and healthy vegetarian dishes.")
313. See ADAM4ADAM, http://www.adam4adam.com/?section=20&view[20]=1 (last visited Apr. 12, 2013) ("[W]e build a community for gay men looking for friendship, romance, dating or a hot hookup. ").
314. See BEAUTIFULPEOPLE. COM, http://www.beautifulpeople.com/en-US (last visited Apr. 12, 2013). Unlike the preceding examples, BeautifulPeople.com engages in actual exclusion. It can make facial exclusions because physical appearance is not a protected class. The site also practices expulsion-purportedly dismissing formerly beautiful members who gain too much weight over the holidays.
315. See 5, 000 Festive Fatties Expelled from BeautifulPeople.com, PR NEWSWIRE, Jan. 4, 2010, available at http://www.prnewswire.com/newsreleases/ 5000-festive-fatties-expelled-from-beautifulpeoplecom-80567702.html (announcing the removal of five thousand members who had gained weight over the holidays). Bitch reports that the online dating service OkCupid engages in a similar kind of discrimination.
316. See Kelsey Wallace, OkCupid Has Less-than-OK Policies. Especially If You're "Ugly", BITCH MEDIA (June 10, 2010 1:46 PM), http://bitchmagazine.org/post/okcupid-has-less-than-ok-poli cies-especially-if- youre-ugly (reporting e-mails sent by OkCupid to certain users stating, "We are very pleased to report that you are in the top half of OkCupid's most attractive users.... Your new elite status comes with one important privilege: You will now see more attractive people in your match results."). Discrimination based on physical appearance is not unchallenged. Commentators have adopted the term "lookism" to refer to "society's construction of a standard for beauty or attractiveness, and the resulting oppression that occurs through stereotypes and generalizations about those who do and do not meet society's standards."
317. M. Neil Browne & Andrea Giampetro-Meyer, Many Paths to Justice: The Glass Ceiling, the Looking Glass, and Strategies for Getting to the Other Side, 21 HOFSTRA LAB. & EMP. L. J. 61, 65 (2003);
318. see also Deborah L. Rhode, Don't Hate Me Because I'm Beautiful. Just Promote Me., WASH. POST, May 23, 2010, at B1 (mentioning studies finding that "unattractive people are less likely than their attractive peers to be viewed as intelligent, likable and good", that "overweight individuals consistently suffer disadvantages at school, at work and beyond", that "[u]nattractive people are less likely to be hired and promoted, and they earn lower salaries, even in fields in which looks have no obvious relationship to professional duties", and that "unattractive plaintiffs receive lower damage awards").
319. About Black Dating and Black People Meet, BLACKPEOPLEMEET. COM, http://www.black peoplemeet.com/v3/aboutonlinedating (last visited Apr. 12, 2013). The "About" section of the website explains that "BlackPeopleMeet.com is the largest black dating site for black singles in the U. S." Id.
320. Kenya M. Yarbrough, Computer Love: Black People Meet.com's Ron Worthy Talks Online Dating, ELECTRONIC URB. REP. (Apr. 9, 2010), http://www.eurweb.com/ 2010/04/com puter-love-blackpeoplemeet-coms-ron-worthy-talks-online-dating (internal quotation marks omitted).
321. Balkin, supra note 164, at 2051; cf. id. at 2066 ("[I]n virtual worlds, like real worlds, people may invest a great deal of time and effort in building up their identity and their reputation. The creation of a new identity, or exit from the virtual world altogether, may be quite costly."). James Grimmelmann notes a related concern with Facebook: "[P]eople invest a lot of time and effort in their Facebook personae; to lose one's profile can be a harsh blow." James Grimmelmann, Saving Facebook, 94 IOWA L. REV. 1137, 1198 (2009).
322. Sunstein, supra note 45, at 76 (citing Russell Hardin, The Crippled Epistemology of Extremism, in POLITICAL EXTREMISM AND RATIONALITY 3, 16 (Albert Breton et al. eds., 2002)).
323. Id. at 78. Sunstein's worry over online enclave deliberation calls to mind the longstanding debate in political theory over the ways in which insular groups reinforce their own norms. See, e.g., Wisconsin v. Yoder, 406 U. S. 205, 241-49 (1972) (Douglas, J., dissenting);
324. STEPHEN MACEDO, DIVERSITY AND DISTRUST: CIVIC EDUCATION IN A MULTICULTURAL DEMOCRACY 153-54 (2000).