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First Amendment doesn't apply on YouTube; judges reject PragerU lawsuit:
YouTube is a private forum and therefore not subject to free-speech requirements under the First Amendment, a US appeals court ruled today. "Despite YouTube's ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment," the court said.
PragerU, a conservative media company, sued YouTube in October 2017, claiming the Google-owned video site "unlawfully censor[ed] its educational videos and discriminat[ed] against its right to freedom of speech."
PragerU said YouTube reduced its viewership and revenue with "arbitrary and capricious use of 'restricted mode' and 'demonetization' viewer restriction filters." PragerU claimed it was targeted by YouTube because of its "political identity and viewpoint as a non-profit that espouses conservative views on current and historical events."
But a US District Court judge dismissed PragerU's lawsuit against Google and YouTube, and a three-judge panel at the US Court of Appeals for the 9th Circuit upheld that dismissal in a unanimous ruling today.
"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," judges wrote.
PragerU claimed that Google's "regulation and filtering of video content on YouTube is 'State action' subject to scrutiny under the First Amendment." While Google is obviously not a government agency, PragerU pointed to a previous appeals-court ruling to support its claim that "[t]he regulation of speech by a private party in a designated public forum is 'quintessentially an exclusive and traditional public function' sufficient to establish that a private party is a 'State actor' under the First Amendment." PragerU claims YouTube is a "public forum" because YouTube invites the public to use the site to engage in freedom of expression and because YouTube representatives called the site a "public forum" for free speech in testimony before Congress.
Appeals court judges were not convinced. They pointed to a Supreme Court case from last year in which plaintiffs unsuccessfully "tested a theory that resembled PragerU's approach, claiming that a private entity becomes a state actor through its 'operation' of the private property as 'a public forum for speech.'" The case involved public access channels on a cable TV system.
The Supreme Court in that case found 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."
"If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum," the Supreme Court decision last year continued.
(Score: 2, Insightful) by fustakrakich on Monday March 02 2020, @02:16AM (10 children)
SCOTUS? Just happens to be the next stop.
Thing is, youtube is not a monopoly. They can't disconnect you from the internet. So, really there is no case, but for 400 bucks an hour (about minimum wage now), one can be made, all the way up to the top.
La politica e i criminali sono la stessa cosa..
(Score: 2) by deimtee on Monday March 02 2020, @02:57AM (1 child)
I thought SCOTUS had to think you had a case before they would even bother listening. Writ of certiorari or something. This is so slam dunk it is likely to be denied.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 3, Insightful) by fustakrakich on Monday March 02 2020, @03:35AM
Ah, but for the love of money, anything is possible in today's wacky world.
La politica e i criminali sono la stessa cosa..
(Score: 4, Informative) by Anonymous Coward on Monday March 02 2020, @05:28AM (7 children)
I agreed at first until reading their case. [bgrfirm.com] They do seem to have a good argument. This all comes down to the definition of a Forum [cornell.edu]. Quoting that case:
So there is the question of whether YouTube has become a public forum and are framing themselves as one. The answers to both of these questions seem to be a resounding 'yes'. However, if that is the case then their role and responsibilities differ quite a lot from e.g. a shop owner who kicks somebody out of their store for wearing a political adornment they dislike. The first amendment was fundamentally about ensuring that people have the right to say what they will in any public venue. But there is extensive precedent stating that "public" vs "private" is not defined exclusively by ownership, but by a mixture of ownership and purposing.
(Score: 5, Informative) by Anonymous Coward on Monday March 02 2020, @05:36AM (5 children)
Actually, holy shit is Marsh vs Alabama [wikipedia.org] relevant here. In a nutshell, there was a 'company town'. A company town is a normal town, except one primarily owned by a private entity. A Jehova Witness was distributing religious fliers on the streets of the town. She was told to leave, stating that distributing such fliers on company property required a permit - which would not be granted. She refused, arguing that company rules did not override her constitutional rights to free speech.
She was initially arrested and convicted by the court claiming that since she was on private property, the first amendment did not apply - she was not being censored by the government, but by the company. Her appeal was denied by the Alabama supreme court and went all the way to the SCOTUS. They ruled in favor of her, which is where that quote that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." comes from.
You couldn't get a more direct precedent for this case than that. The one and only difference is we're talking about a digital domain instead of a physical one. I've gone from agreeing with you to thinking this is borderline an open and shut case in favor of PragerU, unless there is some sort of legal nuance that makes the precedent for this case invalid.
(Score: 3, Insightful) by DannyB on Monday March 02 2020, @03:39PM (3 children)
When the shoe is on the other foot, conservatives would be screaming and jumping up and down if a conservative business were forced to host liberal speech that the owners were opposed to.
People should consider the "shoe on the other foot" scenario more often. We might be less divided if everyone did.
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 3, Touché) by DeathMonkey on Monday March 02 2020, @08:46PM (2 children)
Some sort of cake-based speech, perhaps?
(Score: 2) by DannyB on Monday March 02 2020, @09:05PM
Twinkies?
To transfer files: right-click on file, pick Copy. Unplug mouse, plug mouse into other computer. Right-click, paste.
(Score: 2) by Fluffeh on Tuesday March 03 2020, @09:23PM
I think this is the best Touche comment I've seen this year!
(Score: 0) by Anonymous Coward on Thursday March 05 2020, @09:35AM
(Score: 1) by fustakrakich on Monday March 02 2020, @05:47AM
There you go. I like that. If you're open to the public, you have to be open to all the public.
Well, now I can disagree with myself...
La politica e i criminali sono la stessa cosa..