It appears that Erik Estavillo, the unsuccessful plaintiff in Estavillo v Sony Computer Entertainment America, 2009 WL 3072887 (ND Cal Sept 22, 2009) has decided to appeal that decision.
Estavillo was banned from the Sony Playstation 3 Network due to violations of the Sony ToS regarding use of the Network, with respect to his use of the public forums (allegedly due to verbal comments made by him while playing 'Resistance'). Estavillo claimed that this ban violated his free speech rights under the First Amendment.
In the brief judgment (so brief it would make my students cheer with joy!) Judge Ronald Whyte stated:
'Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users...these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State.'
This characterisation may come as a disappointment to some who had been theorising that virtual worlds could be treated as a company town for First Amendment purposes, see, for example, Jack Balkin's 2004 article
Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds.
(see also his more recent article on The Future of Free Expression in a Digital Age for an updated approach to these issues.)
This is not the end of the story and the outcomes will be watched with interest.
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