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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: 5, Insightful) by Runaway1956 on Monday March 02 2020, @02:56AM (20 children)

    by Runaway1956 (2926) Subscriber Badge on Monday March 02 2020, @02:56AM (#965241) Journal

    Back in the day, there were three broadcasting corporations: ABC, NBC, and CBS. There were a few little kids playing in the sandboxes, but the playground was ruled by those Big Three.

    Gubbermint demanded that those Big Three gave equal time to opposing views. None of those Big Three were permitted to side with Dems, or with the GOP, then exclude the other side.

    The courts have forgotten all about that, and the reasons for it. And, government does have the authority to tell Youtube and all the rest of the tech companies that they may not squelch political views that they do not like.

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  • (Score: 0) by Anonymous Coward on Monday March 02 2020, @03:47AM (2 children)

    by Anonymous Coward on Monday March 02 2020, @03:47AM (#965268)

    There was never any "equal time rule." Some people thought there should be. Normally, it was opposed by conservatives, even though they probably would have been the beneficiaries of it, because they did not want government in charge of determining who was allowed to say what.

    • (Score: 4, Insightful) by Grishnakh on Monday March 02 2020, @04:02AM

      by Grishnakh (2831) on Monday March 02 2020, @04:02AM (#965280)

      Today's "conservatives" are a far cry from the conservatives of the days of ABC/NBC/CBS. Back then, they were in favor of the government mostly staying out of the way of business. Now, they worship authoritarianism.

    • (Score: 3, Informative) by Anonymous Coward on Monday March 02 2020, @05:09AM

      by Anonymous Coward on Monday March 02 2020, @05:09AM (#965321)

      The "fairness doctrine" and "equal-time rule" are often confused. The equal-time rule roughly says two things. First, except for certain situations, any amount of TV time they give a candidate for political office has to be offered to the other candidates in the same time slot. Second, if a broadcast media station sells political advertising to a candidate, it has to offer the same amount of time for the same price to all candidates in the same race in the same time slot. The fairness doctrine required broadcasters to cover issues of public importance and do so in a manner that "fairly represents opposing views," but the time allotted didn't have to be "equal."

  • (Score: 1, Disagree) by fustakrakich on Monday March 02 2020, @03:49AM (10 children)

    by fustakrakich (6150) on Monday March 02 2020, @03:49AM (#965269) Journal

    The courts have forgotten all about that, and the reasons for it.

    Those reasons no longer apply. So there is no need for such rules. Youtube cannot kick you off the internet, which for the most part is still wide open, aside from what your service provider allows. There is no government right to regulate content on the WAN, notwithstanding that we give them the power.

    --
    La politica e i criminali sono la stessa cosa..
    • (Score: 5, Insightful) by Runaway1956 on Monday March 02 2020, @04:21AM (9 children)

      by Runaway1956 (2926) Subscriber Badge on Monday March 02 2020, @04:21AM (#965292) Journal

      Bullshit.

      Just like the day of the Big Three, there are a very limited number of forum or media on which to get a point of view out to the world. Those major forums are biased, and they are squelching all messages that they don't like. It is no different than the '50's and '60's when the Big Three Broadcasters could have chosen sides, and blocked the opposition from getting any message out.

      Imagine where me might be today, if those Big Three had decided to not cover Dr. Martin Luther King Jr. - at all. His only means of addressing the people of America would have been a couple of newspapers, and word of mouth. That is exactly where we are today - a handful of tech companies can turn the squelch up or down, depending on how much they like your message.

      • (Score: 1) by fustakrakich on Monday March 02 2020, @04:35AM

        by fustakrakich (6150) on Monday March 02 2020, @04:35AM (#965303) Journal

        Nope, it's not like the big three at all. Here you have a transmitter that can reach anybody who wants to see. You didn't have anything like that before, not even close. So please, save it...

        --
        La politica e i criminali sono la stessa cosa..
      • (Score: 3, Interesting) by Anonymous Coward on Monday March 02 2020, @04:50AM (3 children)

        by Anonymous Coward on Monday March 02 2020, @04:50AM (#965309)

        The difference is that ABC, NBC, and CBS, and the other broadcast media at the time were the only choices by law. You literally cannot create a new broadcast television channel without a government license and taking the opportunity away from someone else. Anyone can set up an alternative to YouTube, Reddit, Twitter, Facebook, etc. that everyone else is free to go to instead, unlike with the broadcast media. This isn't the days where there were only 4 or 11 slots available for an entire geographical region to use.

        • (Score: 1, Insightful) by Anonymous Coward on Monday March 02 2020, @07:50AM (2 children)

          by Anonymous Coward on Monday March 02 2020, @07:50AM (#965391)

          Since certain parties developed "deplatforming", you cannot honestly argue that there ARE "other choices". There aren't, until and unless said parties will be held responsible for their bullying and harrassment like common criminals they are.

          • (Score: 3, Touché) by Anonymous Coward on Monday March 02 2020, @08:49AM

            by Anonymous Coward on Monday March 02 2020, @08:49AM (#965403)

            You just wrote that on one. Literally.

          • (Score: 1, Interesting) by Anonymous Coward on Monday March 02 2020, @02:47PM

            by Anonymous Coward on Monday March 02 2020, @02:47PM (#965494)

            So Nebula is just vaporware then?
            https://help.curiositystream.com/hc/en-us/articles/360034158291-CuriosityStream-Nebula-FAQ [curiositystream.com]

            Seems that people that have gotten fed up with YouTube can and have created alternatives.

            It does require effort, however.

      • (Score: 0) by Anonymous Coward on Monday March 02 2020, @05:49AM

        by Anonymous Coward on Monday March 02 2020, @05:49AM (#965348)

        The flip side of the fair and balanced meme is Edward R Murrow giving equal air time to the smoking industry and their smoking is safe propaganda of the 1950's.
        At that time it was already well known smoking is not doing anything good for your health.

        https://www.nytimes.com/1955/06/01/archives/tv-cigarettes-and-cancer-murrow-gives-first-of-twopart-report-on.html [nytimes.com]
        https://www.researchgate.net/publication/6287298_The_Cigarette_Controversy [researchgate.net]

        This is an industry that kills about 450,000 people a year in the USA alone. It's not unlike the global warming deniers getting equal time on fox news these days.
        Not all sides are always presenting factual information.

        It's really unfortunate that Youtube has no real competition. Just because anyone can start a competitor doesn't mean it's not a monopoly.

      • (Score: 1) by fustakrakich on Monday March 02 2020, @05:55AM (1 child)

        by fustakrakich (6150) on Monday March 02 2020, @05:55AM (#965350) Journal

        However, sir, there is possible precedence in your favor, all of ours actually.

        See the AC's comments to my first post above on Marsh vs Alabama.

        We may just have a winner.

        --
        La politica e i criminali sono la stessa cosa..
        • (Score: 2) by Runaway1956 on Monday March 02 2020, @06:24AM

          by Runaway1956 (2926) Subscriber Badge on Monday March 02 2020, @06:24AM (#965364) Journal

          From SCOTUS, no less.

          And, I see little if any difference between a digital forum, and a physical forum, or a broadcast forum.

      • (Score: 1) by DimestoreProstitute on Monday March 02 2020, @06:54PM

        by DimestoreProstitute (9480) on Monday March 02 2020, @06:54PM (#965608)

        YouTube doesn't owe you some inherent right to post your videos or make you money.

  • (Score: 2) by captain normal on Monday March 02 2020, @06:35AM

    by captain normal (2205) on Monday March 02 2020, @06:35AM (#965369)

    Does that apply to Fox News also?

    --
    When life isn't going right, go left.
  • (Score: 0) by Anonymous Coward on Monday March 02 2020, @07:08AM

    by Anonymous Coward on Monday March 02 2020, @07:08AM (#965381)

    But they can, as did Fox News, and every other public forum but this one, ban Runaway1956 because he is such a caustic asshole. Nice to see a court affirm this yet again.

  • (Score: 2) by DannyB on Monday March 02 2020, @03:49PM (3 children)

    by DannyB (5839) Subscriber Badge on Monday March 02 2020, @03:49PM (#965521) Journal

    The radio spectrum is a limited resource which the FCC manages. It seems reasonable that when licensing stations for broadcast that they cannot exert undue influence using the power of TV against weak minds.

    The internet is much less a limited resource. ISPs, or backbones, or hosting companies will sell you as much capacity as you want to buy to get your opinion out there. The FCC's role is to ensure that you can get equal access to the network, both when consuming content and when hosting content. (Although there shouldn't be that consuming / hosting distinction IMO.)

    Google and YouTube built up their customer base by offering people something of value for free. Later with ads.

    Conservatives didn't like the reality of Wikipedia, and created a Conservapedia with alternate facts more to their liking. There's nothing stopping anyone from doing that.

    But they can't spout crazy talk and expect someone else to lend them an air of respectability and credibility.

    --
    People today are educated enough to repeat what they are taught but not to question what they are taught.
    • (Score: 2) by Runaway1956 on Monday March 02 2020, @05:00PM (2 children)

      by Runaway1956 (2926) Subscriber Badge on Monday March 02 2020, @05:00PM (#965549) Journal

      I think you err.

      First, it is the "Federal Communications Commission". Communications being the key word, there. The FCC has an obligation, a mandate, even, to regulate. We went astray when the ISP's pleaded not to be classified as common carriers. They are, in fact, and they should be, legally, common carriers.

      Second, the entry bar is so high, the average citizen isn't going to create anything to compete against the established tech companies. It's kinda like the broadcast days, when Joe Sixpack couldn't even dream of owning his own radio station. Today, Joe can have a station, but the bandwidth involved in reaching millions is prohibitive.

      Third - about that crazy talk. You've bought into the idea that numbers make right? Or, might makes right? Let us take political parties as an example. D's actually have some good ideas. And, so do the R's. And both have shit ideas that no one in the world will accept, unless they are a D or an R. You've heard the talk from Europe and other places in regards to our political system? We suck, in many ways. But, if we accept that might makes right - then all the rest of the world is wrong, because we are strongest, and most influential, therefore everything we say is right.

      Let the crazies speak. There is a helluva lot less evil down that road, than chasing censorship to hell, and beyond.

      • (Score: 2) by DannyB on Monday March 02 2020, @06:23PM

        by DannyB (5839) Subscriber Badge on Monday March 02 2020, @06:23PM (#965582) Journal

        I don't have a problem letting the crazies (on both sides) speak. But no platform should be obligated to host them. I'm not for censorship, but community standards and rules seem necessary if you don't want to end up with 8chan. Rule enforcement should be even handed.

        If we're going to go down the road of requiring platforms to host content against the owner's wishes, then let's start with FoxNews. But Nooo! Somehow that won't fly.

        The internet allows the average citizen to compete against larger and louder voices than anything in history. If the average citizen has something to say, they only need to promote it and people will listen. If nobody cares what they say, then that is not some inherent unfairness. They should be able to force anyone to listen, nor force anyone to host their speech. And that works both ways. As it should.

        For $5 / mo a citizen can host a pretty powerful megaphone. If they get traction, then they can upgrade to $10 or $15 a month. Or more. Support it with ads.

        I would also point out that most "average citizens" DO IN FACT use YouTube, Twitter, Facebook, etc. And the vast majority seem to be able to express all kinds of different ideas without causing trouble.

        PragerU is not an average citizen. For what they've spent on litigation, they could set up a web site with decent bandwidth and reach. If nobody wants to listen, that's too bad (for them). Moving onto someone else's platform where their view is unwelcome is not going to somehow change what they have to say. If what they have to say is so great, people will tune in. After all, Rush Limbaugh, Glen Beck, and others don't seem to have any trouble drawing crowds.

        The only issue I see here is that PragerU doesn't want to follow YouTube's rules and thinks that YouTube shouldn't be able to have rules.

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.
      • (Score: 2) by DannyB on Monday March 02 2020, @07:40PM

        by DannyB (5839) Subscriber Badge on Monday March 02 2020, @07:40PM (#965629) Journal

        An additional thought. YouTube is an advertising platform. Their customers are the advertisers. They want their platform to be appealing to advertisers. YouTube has every right to groom their platform for the advertisers they want to seek out. Compelling YouTube to make their platform unappealing to selected advertisers is direct interference with their business.

        I don't know if this line of argument was raised in the litigation, but I wouldn't be surprised if it were.

        Revisiting a point in my prior reply. Would having any kind of rules be defined as censorship. I hate to have a sentence say "I don't want censorship, BUT . . ."

        It seems (to me) that rules and community guidelines are necessary on the internet. Today maybe more than ever. It's not the wild west of Usenet of the 80's anymore. Maybe that strictly qualifies as some form of censorship. Just as censors on network TV might censor malfunctioning wardrobes or certain words.

        I don't know what caused YouTube to have a problem with PragerU given that there are so many views expressed on YouTube.

        --
        People today are educated enough to repeat what they are taught but not to question what they are taught.