Just because YouTube is everywhere doesn’t make it the town square, a Seattle appeals court said on Wednesday. It’s neither a public forum nor a “state actor”, and it can’t be held to First Amendment court oversight as if it were a government body.
Thus did the 9th Circuit Court of Appeals in San Francisco dismiss a top right-wing content creator’s allegation that Google had violated its First Amendment rights by tagging dozens of its videos on abortion, gun rights, Islam and terrorism with its Restricted Mode and demonetizing them so the nonprofit can’t make money from advertising.
The suit was originally brought in 2017 by radio talk show host Dennis Prager, who runs the conservative, nonprofit educational company Prager University (PragerU). PragerU isn’t an actual university, and it doesn’t award certificates or degrees. It’s best known for its many 5-minute videos, some of which, starting in 2016, Google dubbed Restricted, including videos about the 10 Commandments, whether police were racist, and Israel’s legal founding.
The suit claimed that Google, with its outsize power to moderate user content on YouTube, was using that power to censor conservative viewpoints. Google’s content filters apply the Restricted Mode to material seen as unfit for minors, including videos that include alcohol abuse, sexual situations, violence, and other mature matters.
None of that applied to PragerU’s content, but dozens of its videos were still flagged for “objectionable content” by Google’s algorithm. After being flagged, the videos were then reviewed by humans, who often upheld the content restriction and, in addition, demonetized videos, making it tough for PragerU to leverage the platform for moneymaking opportunities by advertising.
Prager’s suit argued that Google’s opposition to conservative political views led to its content being flagged, in violation of First Amendment protection of free speech. That argument doesn’t fly, the appeals court said on Wednesday, given that YouTube isn’t a public forum:
PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government – not a private party – from abridging speech.
The appeals court also rejected PragerU’s claim that Google’s “braggadocio” about free speech constituted false advertising. Nope, that’s just opinion, the court said on Wednesday. Or, to be more precise, it’s marketing puff-speak:
Lofty but vague statements like ‘everyone deserves to have a voice’, and that the world is a better place when we listen, share and build community through our stories or that YouTube believes that ‘people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities’ are classic, non-actionable opinions or puffery.
Farshad Shadloo, a Google spokesman, told Reuters that the company’s products “are not politically biased,” and the decision “vindicates important legal principles that allow us to provide different choices and settings to users.”
Donald Verrilli, a US solicitor general under President Barack Obama, wrote on behalf of the Computer & Communications Industry Association in support of Google and YouTube, saying in a legal brief that courts have consistently found private companies such as Google, YouTube and Facebook don’t qualify as state actors for First Amendment purposes.
Interpreting them otherwise would “change the internet” by threatening to make websites “chock-full of sexually explicit content, violent imagery, hate speech, and expression aimed at demeaning, disturbing, and distressing others”, he wrote.
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Wilderness
Awesome, so we can all deprive each other of our rights because we are not the government. Another job well done by the 9th Circuit Court.
pat
Google YouTube & others are not Gov entities. “FREEDOM of SPEECH” Vs. SPEECH that advocates Violence to others is a CRIME.
Ranger Ranger (@Ranger175x)
I love Prager U. They are doing good work, but the court is right here. Did Rush Limbaugh get famous by having a Youtube account as his platform? Prager U is arguing in someone elses house. Isn’t that disrespecting individual private property rights? Prager U has their own site, it is their responsibly to make that become as big of a success as Rush Limbaugh did with is platform. The opportunity is there, they have have to seize it and be accepted by the people.
Bryan
Read the entire comment before dismissing it as kneejerk partisan tripe.
This is less censorship than a helping hand to the voice of reason–more specifically in hopes that its whisper be heard within the hurricane.
Mark Stockley made the point very well (last year?) in a comment… it’ll be useful here (more so than my version) if someone else can find it.
very loose paraphrase:
The Internet is an amazing tool and advancement, but one drawback is the false perception of one’s own voice and the disproportionate attention devoted to a single (topic|individual|side of an argument).
With everyone at the center of their own online world (and the speed of information travel) the digital atmosphere exacerbates the negative effect of an equal-merit approach to opposing views; which only works when each view earnestly seeks progress and truth–as opposed to fostering chaos and mistrust.
e.g. “meeting halfway” is not the correct solution between neighbors:
You owe me $10,000 because you drove across my flower bed at noon.
What!? I owe you nothing; someone else smashed your flowers!
All right, let’s meet halfway; you owe me $5,000.
To invoke a tired (yet still loaded) phrase, “both sides” of present-day’s political discord harbor a collection of knuckleheads. Being online can amplify the effect of a single voice, and the extremes at both ends are disproportionately loud.
This coupled with the natural human tendency to give more attention than is deserved to sensationalist hype…ensures that outlets like Breitbart and Wonkette continue to shovel their bullsh*t at inordinately high rates. Their YT channels should likewise be moderated to a point where they wither and atrophy.
We need more calm and measured voices to be heard and fewer of the acerbic and frothy sort. Slinging a bit less mud and a bit more cooperation just might get us somewhere…
Steve
Perhaps the 9th Circuit Court would like to explain how places like shopping malls across the country are deemed “public places” comparable to the town square, but YouTube, serving the same sort of purpose in the virtual world, is not considered in the same legal light. Oh, right, it IS the 9th… just as unbiased as Google… never mind.
Eric
Steve, now who is being biased? A mirror can help with the answer.
Steve
Thank you for your generous advice, but I do not need that mirror.
I *AM* biased, based on my own feelings and opinions to which I am fully entitled to hold and voice. I am *NOT* a judge appointed as a federal authority for the specific purpose of rendering LEGAL opinions which need to be unbiased.
Whether someone happens to agree or disagree with you should not determine whether they are biased!
James
https://nakedsecurity.sophos.com/2019/01/09/politicians-who-block-social-media-users-are-violating-first-amendment/
So users can violate someones 1st but the company cannot?
Everytime it comes back to the same question, publisher or platform? These tech companies are having their cake and eating it.
jimntexas
This article completely misstates Prager’s legal position. YouTube has exactly two choices:
Operate under section 230 as a public forum, open to all.
Operate as a publisher, who does have the right to edit content anyway it wants.
Google wants both. They want to be able to edit and censor all they want, the way a newspaper or book publisher can, but they want the protections of section 230.
They can’t have it both ways.
Wilderness
Jimntexas, very well put! They want immunity from prosecution for what people say AND control of what people say. They cannot and should not have both.
Anon
All you have to know is mentioned here –
“Thus did the 9th Circuit Court of Appeals in San Francisco dismiss”
San Fran. The armpit of liberal hypocrisy. They think they can invent and enforce their own laws and circumvent the constitution regularly. I hope it is appealed to the supreme court. The 1st amendment isn’t just for Government actors. We don’t like what you are saying so we are going to block you. Since you aren’t the government you cannot say things we do not approve of. Nope. Some 9th Circuit Court of Appeals folks need to be fired immediately.
Jack Hammer
The censorship is way beyond petty liberal and conservative politics. It includes all dissenting views regarding so called settled cultural battles, such as feminism and metoo and men’s rights. All censored into oblivion. All counter opinion to feminism is unfindable, censored away.
Gregg Gawlak
I guess the phone companies then can also censor your phone calls as well.