Posted on 02/26/2020 3:40:49 PM PST by semimojo
The Ninth Circuit Court of Appeals on Wednesday affirmed that YouTube, a Google subsidiary, is a private platform and thus not subject to the First Amendment. In making that determination, the Court also rejected a plea from a conservative content maker that sued YouTube in hopes that the courts would force it to behave like a public utility.
Put another way, had the Ninth Circuit ruled in favor of Prager University—also known as PragerU—and against YouTube, it would have violated YouTube's First Amendment rights.
Headed by conservative radio host Dennis Prager, PragerU alleged in its suit against YouTube that the video hosting platform violated PragerU's right to free speech when it placed a portion of the nonprofit's clips on "Restricted Mode," an optional setting that approximately 1.5 percent of YouTube users select so as not to see content with mature themes. (It's worth noting that PragerU is not an actual public or private university, but rather "an online video resource promoting knowledge and clarity on life's biggest and most interesting topics.")
"PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent," wrote Circuit Judge M. Margaret McKeown. "Just last year, the Court held that 'merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints,'" she wrote, referencing the recent decision in Manhattan Cmty. Access Corp. v. Halleck.
Indeed, the conservative nonprofit's lawsuit sought to radically alter the First Amendment, which constrains the government—not private actors like YouTube—from infringing on free speech rights. PragerU's suit rested on the claim that YouTube has become so ubiquitous that it is now a public utility owned by the people. The claim seems more at home among the rising democratic socialists often criticized by PragerU in its videos, and it's one that the Ninth Circuit fundamentally rejected.
"Such a rule would eviscerate the state action doctrine's distinction between government and private entities because 'all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints,'" noted McKeown. "Importantly, private property does not 'lose its private character merely because the public is generally invited to use it for designated purposes.'"
PragerU's argument boils down to the following: YouTube performs a function of value to the public, so it is therefore a public utility bound by the same rules as any other government agency. But that argument would require, at minimum, for YouTube to hold a monopoly on internet video hosting. As that is not the case, PragerU was essentially asking YouTube to be treated like a government agency based on its largeness.
PragerU also put forth claims under the Lanham Act, contending that the company engaged in false advertising when it said, for instance, that "people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities." Not so, said the Ninth Circuit, likening such declarations to non-actionable "puffery" that do not constitute binding commercial behavior.
"Google's products are not politically biased. We go to extraordinary lengths to build our products and enforce our policies in such a way that political leanings are not taken into account," Ivy Choi, a YouTube spokesperson, told Reason in September, following oral arguments.
In Prager's defense, videos that fall under Google's Restricted Mode are tagged with an algorithm and often evaluated again by a human reviewer, who inevitably comes to the table with his or her own intrinsic biases. For instance, restricting PragerU's "Are 1 in 5 Women Raped at College?" makes sense; tagging "The Ten Commandments: What You Should Know" does not. (Karan Bhatia, a former conservative operative and now Google's vice president for government affairs, said the video references mature themes, like murder.)
Section 230 specifically protects public forums. It was drafted to address Prodigy and the like.
FR is a public forum. Has Jim lost the ability to control content?
Reason has gone to the other side.
Not that they were ever far away from it.
Except they don't. They get to play on both sides of the fence with no accountability to anyone.
Google needs to be wiped out. They need to be made non existent.
Its a monopoly. They have an overwhelming market share and the barriers to entry are very high. Its not enough to write a bit of code so your site will play videos. Due to network effects, a channel like Youtube has all the eyeballs and the content such that its is impossible for any of the minnows like bitchute, vimeo, dailymotion, etc to compete.
No, the odd thing is that Google/Youtube wants the legal protections of a common carrier while acting as editorial control. Prager is correct. Google is private (kinda) but they are as private as Verizon.
Verizon cannot suspend your service because you called the Trump campaign number.
Google exercises editorial control, so they should lose their protection and be strictly liable for what they publish.
The difference in scale is what makes it objectionable... and dangerous.
There’s only one TFM.
See, here the 9th circuit is siting “Supreme Court Precedents”, and that’s fine as far as it goes. An issue like whether private online content conduits should suddenly be treated as a public utility should probably be left to the Supremes. I get that. But then various circuit courts seem to have no problem violating executive prerogatives whenever it suits their ideological needs. The contrast is striking.
No, that's how some want it to work but Section 230 of the Communications Decency Act explicitly let's these companies moderate/edit content without liability.
Stop comparing a tiny political website to a multi billion user corporation.
The difference in scale is what makes it objectionable... and dangerous.
The liberals are seeing that it is mostly conservative speech that is being muzzled so they're OK with it.
The "conservatives" on the court are mostly pro-business so they will not want to step on the dainty little toes of megacorps.
Unless Trump starts tweeting on this conservative thought on the internet is headed for the dust bin.
It is not that they are private, or that they are so large. It is that they receive legal protection as a common carrier. They cannot be sued for what is published ON their site because they claim to have no control over content.
Now they are full editors. They are not censoring violent threats, etc. They are censoring anything republican or conservative. They censored Rand Paul’s speech on the Senate floor.
They are editors and should be liable for their published content, just like a newspaper.
True, but in those instances the discrimination was against classes of people specifically protected by law.
Political ideology isn't a protected class.
“But that argument would require, at minimum, for YouTube to hold a monopoly on internet video hosting.”
Oh puleeze! They hold by far the biggest slice. So big that their ‘competition’ is theoretical more than real. Which means they are as much a monopoly as Ma Bell was back in the day.
Political ideology isn't a protected class.
So, that would be UNequal protection under the law, right?
It's almost as if libertarianism is as utopian as communism. After all, don't they both see the eventual withering away of the state once everyone is properly informed and educated?
“Suppose Google decided to delete all references to conservative sites and conservative politicians. Should the government step in? Maybe.”
Heck, they’re already playing with search rankings. If they don’t get slapped down for that, then eventually when they deem the stakes are sufficiently high, they’ll start deleting conservative listings outright.
YouTube has no control over my communications and it could go away tomorrow without affecting anything but making it harder to find music videos.
The real issue is people are making money using their platform (for free) and those people don't like being kicked off of the gravy train.
So therefore Ma Bell didn't have a monopoly and shouldn't have been regulated out of business.
/sarc
YouTube?
Overstate much?
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