Regulation in cyberspace does not consist only of laws issued and enforced by sovereigns. Instead, private parties and standard-setting bodies, employing the technology of online interaction, will increasingly be able to regulate activity, which might potentially upset many of the provisional balances we as a society have struck in areas such as free speech, privacy, and intellectual property. The question then becomes: how do we evaluate this "private" regulation? Are constitutional norms applicable? Answering such questions requires a reinvestigation of legal doctrine and theory concerning the distinction between "state action" (which is generally subject to constitutional constraints) and "private ordering" (which is not). Critics have repeatedly argued that this distinction is incoherent, but courts nevertheless have shown no inclination to rethink the state action doctrine. In addition, most Americans are likely to resist, on an intuitive level, scholarly attempts to erode the distinction between public and private.
Therefore, it may be that a different sort of argument is necessary. This article offers one such argument, based on what I call "constitutive constitutionalism." Instead of repeatedly claiming that seemingly private activity is actually public, we could instead focus on the cultural benefits we might derive from using the Constitution to debate fundamental societal values, public or private. Constitutional adjudication can foster constructive societal debate about social and political issues. It can permit courts to perform an educative function by articulating values and constructing narratives that help constitute our national identity. And, constitutional adjudication can create opportunities for courts to operate as deliberative fora in which difficult political issues are addressed. For all of these reasons, we may decide that measuring a broader range of activities against constitutional norms carries significant cultural benefits.
Of course, such an argument does not necessarily outweigh the reasons for viewing the scope of the Constitution more narrowly. Nevertheless, before we can truly analyze the costs and benefits of the state action doctrine, we must consider the constitutive cultural value of constitutional adjudication. Such consideration may be particularly important in the context of debating online regulation, because in cyberspace it is perhaps easier to see how private entities can threaten cherished constitutional norms.
71 U. Colo. L. Rev. (2000)