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 Universityalso known as PragerUand 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 barriersthe 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 governmentnot private actors like YouTubefrom 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.)
> If we allow this bullsh*t of private corporations controlling public speech, we are f***ing dead. <
I agree with that. But the remedy is for us to take our business elsewhere. Or if the corporation is big enough, to apply antitrust laws. We cannot expect the Bill of Rights to protect us. The Bill of Rights was meant to protect us from government tyranny only.
For example, I can stand on a public sidewalk all day long holding a sign saying Chevy trucks stink. No policeman can arrest me. No DA can file charges against me.
But if I take that sign into a Chevy dealership, they would certainly have me removed. Chevy can control what I say there. The 1A will not protect me. And it shouldnt. To say otherwise would mean that property rights have no value.
I must emphasize this: My analogy fails if the corporation is so big that it essentially becomes a monopoly. Then it MUST be regulated as a public utility, or be broken up. Are YouTube or Google there yet? If not, they are getting close to it.
You made some excellent points there.
The income that YouTube content providers receive is justified because they share with Google the process that leads to the collection of ad revenues.
They are not lazy grifters riding on the gravy train. In some cases it takes hours to film, edit, and upload a 10 minute video. It is not an easy life
except of course for those that YouTube favors like Jennelle Eliana.
No, the laws are being enforced equally for everyone.
It's just that civil rights law differentiates among classes of people.
And how many billions of dollars and man years of effort did it take to develop and maintain the YouTube platform?
People wanting to use that resource for free have to follow the rules of the owner of the platform.
Classes of people is inherently unconstitutional.
Am I not typing slow enough for you?
You're reading that from a retarded libertarian website that is celebrating YouTube's right to arbitrarily remove content from their platform in violation of their own advertising as a free speech platform.
YouTube claims immunity from lawsuits on the grounds that it is not a publisher but seeks to assert that it is a publisher for purposes of banning Conservative voices for alleged "racism" or "offensive conduct".
This needs to go to the Supreme Court.
“...First Amendment, which constrains the governmentnot private actors...”
In regard to those words and not to the rest of the article:
“...That to secure these rights, Governments are instituted among Men...”
Either they are a platform or publisher. They demand protections as a platform, but act as a publisher.
Communications Decency Act does no such thing. It allows immunity for "good faith" removal of "offensive content."
When YouTube is censoring you because you're not a tranny, are they acting in good faith and are they removing genuinely offensive conduct? Or are they making political decisions?
“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.”
EXACTLY.
Are you brain damaged? I think that's your problem, buddy.
Another great example of where Libertarians are not our friends.
Libertarians are NOT conservative.
So challenge the Civil Rights Act.
The obvious answer is for all conservative content be taken off youtube and put on a separate site. Conservatives would be fine with that because they support free speech. Democrats would still find a way to get the conservative site shut down.
Yep; we are in agreement.
It’s so big now with most the market share that it should have some kind rules and a watchdog group unless it loses its near monopoly in the video share market which isn’t likely.
Advertising's one thing. If Prager can show that YouTube violated their contract (TOS), then he might have something to work with.
Both ways.
They want to be not liable for content while censoring so-called “hate speech”, which is speech they disagree with politically.
The immunity is much broader than that.
Even if it were true, "offensive" is in the eye of the owner of the forum.
Quote the statute then, dumbass. I've read it AND the case law on it months ago.
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