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posted by janrinok on Monday March 02 2020, @12:36AM   Printer-friendly
from the or-social-media dept.

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.


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  • (Score: 0) by Anonymous Coward on Monday March 02 2020, @02:40AM (8 children)

    by Anonymous Coward on Monday March 02 2020, @02:40AM (#965229)

    > You have a right to speak

    Do you now?

  • (Score: 3, Insightful) by Anonymous Coward on Monday March 02 2020, @04:23AM (7 children)

    by Anonymous Coward on Monday March 02 2020, @04:23AM (#965294)

    In the US you do.

    But you don't have the right to make others listen, nor do you have the right to force others to expend resources amplifying what you say.

    • (Score: 2) by dry on Tuesday March 03 2020, @04:18AM (6 children)

      by dry (223) on Tuesday March 03 2020, @04:18AM (#965845) Journal

      Unless Congress has passed laws banning speech on national security grounds or laws regulating business speech or your speech is considered obscene and non-artistic or a Judge doesn't like what you say in their court room. The courts have been pretty clear that the 1st only protects some types of speech.

      • (Score: 0) by Anonymous Coward on Tuesday March 03 2020, @04:28AM (5 children)

        by Anonymous Coward on Tuesday March 03 2020, @04:28AM (#965848)

        The 1st Amendment protects *most* speech. And the courts have taken an extremely hands-off approach, except in very specific circumstances.

        And aside from *government employees or contractors* who revealed classified information they *specifically* swore not to reveal (whether such revelation was a net positive or not), advocated the violent overthrow of the government and/or conspired to violate the law (which requires an overt act to further such conspiracy), who, *exactly*, has been prosecuted for speaking their minds?

        Let's not speak in generalities either. Names. Dates. Courts.

        I'll be waiting.

        • (Score: 2) by dry on Tuesday March 03 2020, @05:03AM (4 children)

          by dry (223) on Tuesday March 03 2020, @05:03AM (#965857) Journal

          From the 1930's to the 1950's the courts ruled that movies were commercial speech that government could censor. The Hayes code came about. From the Supreme Courts decision in https://en.wikipedia.org/wiki/Mutual_Film_Corp._v._Industrial_Commission_of_Ohio [wikipedia.org]

          wrote that as "they may be used for evil, ... We cannot regard [the censorship of movies] as beyond the power of government." The Court added that it would be equally unreasonable to grant free speech protection to the theater or the circus and noted that in many prior cases regarding government licensure of theatrical performances, the issue of freedom of opinion had not been raised.

          This particular decision did eventually get overturned after 40 odd years but there's still truth in advertising laws, bans from advertising to minors in some cases like selling cigarettes or alcohol and such on the books as business speech like advertising isn't protected like some types of speech.
          Americans have actually been executed for simply talking to some Russians and describing how an atomic bomb works. Execution is pretty extreme for breaking a contract, and I'm not aware of any Constitutional Amendments that override the 1st's ban on Congress regulating speech for national security reasons.
          You can walk into any courtroom and start exercising your right to free speech in a way that the Judge doesn't like and you will at least be kicked out of the court room and possibly thrown in jail for contempt. Contempt is now a statutory crime rather then common law as it was when the 1st was passed.

          • (Score: 0) by Anonymous Coward on Tuesday March 03 2020, @05:45AM (2 children)

            by Anonymous Coward on Tuesday March 03 2020, @05:45AM (#965873)

            So other than some very particular forms of corporate speech (corporations do *not* have the same rights as people, no matter what some corporate shill might tell you -- they are chartered by the government and can be regulated by it at its whim) and some cases almost out of living memory that have been overturned, you've got nothing other than contempt of court?

            Man you're really reaching here. I'd add that no one, myself included, said that freedom of speech was absolute in the US.

            However, an actual *person* can say *just about* anything with impunity, and the government won't do a damn thing about it.

            Or are you claiming that the 1st Amendment protections should be absolute? I'd love to see your legal brief on that.

            You are a lawyer, right?

            • (Score: 2) by dry on Tuesday March 03 2020, @05:57AM (1 child)

              by dry (223) on Tuesday March 03 2020, @05:57AM (#965878) Journal

              The 1st is pretty simple, I'll quote it,

              Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

              I don't see any exceptions in the above, including for sole proprietorships.
              The point is that allowing government to ignore the Supreme Law of the land can lead to tyranny.

              • (Score: 1) by fustakrakich on Tuesday March 03 2020, @06:29AM

                by fustakrakich (6150) on Tuesday March 03 2020, @06:29AM (#965889) Journal

                Funny/tragic how "no law" gets so easily brushed aside by the courts and the majority of people.

                --
                La politica e i criminali sono la stessa cosa..
          • (Score: 0) by Anonymous Coward on Tuesday March 03 2020, @05:48AM

            by Anonymous Coward on Tuesday March 03 2020, @05:48AM (#965875)

            Are you making the argument that if 1st Amendment protections are not absolute, we live in a fascist dictatorship?

            Or are you one of those anarcho-capitalist or "Sovereign Citizen" nutjobs?