----- Original Message ----- From: "Wojtek Sokolowski" <wsokol52 at yahoo.com>
-Not necessarily, if it is considered "public space" - -see:
As you note, the case law has backed far away from that at the federal level, although a number of state constitutions have upheld first amendment rights in private malls if they resemble a traditional town square.
The more interesting issue is not whether the Constitution compels someone to give access to any speaker, but whether the government could, for example, pass a law requiring Doug or other list owners to open up their lists to any comer, or, for example, not discriminate against certain beliefs based on religious bias against them. The Dale Boy Scout decision struck down a state anti-discrimination law on the basis that the Boy Scouts had a First Amendment right to exclude gays who would "interfere" with their anti-gay message.
But that was based on the Boy Scouts being a non-commercial entity. IN Hartford, CT, I helped get passed an ordinance requiring certain retailers -- read Wal-Mart -- to allow any speaker onto their outdoor private sidewalks. The CT Working Families Party held a bake sale to raise money for the employees on the day the store opened on the Wal-Mart property.
That should survive legal challenge, but since there is no law regulating private email lists, Doug can be confident he has pretty unfettered power to exclude anyone he wants.
Nathan Newman