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.)
Ping
It’s discrimination against those of faith but only Christians can be forced to bake the cake even in states that did not recognize same sex marriage. < /s >
What a silly comment, I bet you cannot explain it when the company is individuals who collectively pool views
Care to splain that?
Given that that private business is effectively a monopoly......Alphabet should either be regulated like a utility ie no discriminatory provision of service OR they should be held to be an illegal monopoly and broken up.
Libertarian essayist proving once again that they don’t understand how the real world works. The libertards will be the next to be deplatformed.
I think this was a good ruling. As you noted, the First Amendment does not apply to private businesses. But Prager does make an interesting point. At some point, a company becomes so big that it essentially a public utility.
Google has around 75% of the market share in internet searches. Suppose Google decided to delete all references to conservative sites and conservative politicians. Should the government step in? Maybe.
Were YouTube been found to be a ‘public utility, the company just might have seen that other ‘public utilities’, such as light, power, and gas companies, CHARGE for their services!@!
I hate to say it, but could you see the fallout, and the consequences wrought, if all the YouTubers had to pay, and how many turd flinging monkeys would there be?
My lawyer told me that these social media corporations are spending tons of money for lobbyist to keep it this way
It’s this stupid mentality which is why they’re going to successfully censor the internet. Apparently it’s OK to be subject to tyranny so long as it’s corporate executives who do it.
Libertarians would be apologizing for Amazon while they round them up into their corporate detention processing centers because they’re “technically” not gulags because it’s not the government doing it.
Actually, the article is a lie. Prager asked that YouTube either be classified as a public forum *OR* as a content editor. This is an either/or classification, and YouTube has been laying claim to the benefits of both.
As a public forum, YouTube would lose much of its ability to control content. As a content editor, YouTube would be subject to the same forms of liability that newspapers and magazines have historically be subject to.
As has been the case throughout my life, the 9th "Circus" Court has ruled against America.
If Youtube is a public carrier, like the phone co., then it is not liable for content.
If it is a private business, and claims it censors hate speech, then it can be held liable for content (defamation, etc.)
Which way does Youtube want it?
Seems to me, they could go after entities for libel/slander, as they put PragerU into same categories as things such as p0rn and “hate speech.”
It’s this stupid mentality which is why they’re going to successfully censor the internet. Apparently it’s OK to be subject to tyranny so long as it’s corporate executives who do it.
Government is outsourcing totalitarianism. Until voters hold their elected officials accountable for this nothing will change. In the meantime the beltway Swampers will continue stuffing their pockets with Big Tech cash and doing the bidding of these liberal fascist companies.
The argument about sites like Twitter, Facebook, YouTube, etc. is whether they are platforms or publishers. The distinction makes a huge difference in the legal liability of the company for the content posted on the site. If the site is a platform and exercises no editorial control over what is posted, the site get some degree of legal immunity under federal law. However, if the site exercises editorial control, which they do when they list Prager’s videos as Restricted content, then they become publishers and lose a lot of the immunity they had. So while this may seem like a loss for Prager, in the long run it will be a loss for YouTube and similar sites, as they will be eventually reclassified as publishers, either by the courts or by Congress.
No, it’s odd that YouTube is censoring conservative voices.
Generally there are no laws today for social media it will stay that way until we get a congress that cares.
And yet, bakers and wedding vendors, all PRIVATE companies, are not allowed that right by this hypocritical court.
They want it both ways so they can stamp out all dissident speech.
Anything homophobic, transphobic, islamophobic, or racist will be banned. IF you engage in such speech, then you’ll be cut off from the internet and the global economy.
They’re going to turn the internet into the new cable TV where all you see is approved messaging by the leftist elites in Washington, San Francisco, and Wall Street.
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