Conservative Group Argues First Amendment Should Apply to YouTube

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Conservative Group Argues First Amendment Should Apply to YouTube​


A lawsuit making the provocative argument that one of the biggest social-media platforms should be subject to the First Amendment got a hard look from a federal appeals court in Seattle on Tuesday.

During arguments before the Ninth U.S. Circuit Court of Appeals, Prager University, […] argued Google’s YouTube violated its First Amendment rights and misled its users when it limited access and demonetized dozens of its videos.

[…]
Google says it restricted five-minute, animated videos produced by PragerU, not because of any alleged distaste for free-market or socially conservative principles, but due to its thematic content.[…]

The three-judge panel on Tuesday instead focused on a much more basic and far-reaching question: Can it even be possible for YouTube—a private company operating a private service on private property—to violate the Constitution?

[…]

In arguments Tuesday, Judge Jay Bybee said he understood PragerU’s sense that its freedom of expression was infringed. But the judge said he found it difficult to see how the Constitution was implicated.
“If your representations are correct, it seems deeply disturbing that they put your stuff in the restricted area,” said Judge Bybee. “I’m not sure that creates a First Amendment issue.”

[…]

His educational nonprofit alleges, among other things, that YouTube violated federal law by falsely advertising itself as a viewpoint-neutral forum for “freedom of expression.”
The U.S. Supreme Court has generally found free speech-rights to be strongest on sidewalks, streets, parks and other spaces where local residents congregate—legally known as “public forums.”

[…]
A recent Supreme Court ruling seemed to only complicate PragerU’s argument. “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,” wrote Justice Brett Kavanaugh in a June opinion.

[…]

“They’re not just the company town. They’re arguably a company country and maybe a company world force,” PragerU attorney Peter Obstler told the panel.
Both Judge Bybee and Judge M. Margaret McKeown seemed uneasy with taking the comparison too literally. “You have an analogy to a company town. You don’t have a company town,” said Judge Bybee.
[…]

Google warned the Ninth Circuit that such an expansion of the First Amendment would be havoc-wreaking precedent: either unleashing a deluge of hate speech and pornography on platforms promising free exchange, or perversely motivating companies to avoid lawsuits by disclaiming any commitment to neutrality.
Google attorney Brian Willen questioned how Google—without any government blessing—could trigger First Amendment scrutiny, saying PragerU had a “fundamental misunderstanding of the law.”

Most experts don’t foresee a First Amendment shake-up.
 
Should it also apply to someone’s living room.

I thought property rights were a core part of the American constitutional settlement.
 
As a conservative, I would say that First Amendment rights have already been extended to YouTube. The First Amendment protects the right to free speech by preventing the government or its actors from passing legislature that restricts the free speech rights of private citizens. In this sense, the First Amendment does already apply to YouTube, but not in the way that PragerU is seeking. If your idea is that YouTube, a private business, should be forced to publish all viewpoints, this is a violation of the First Amendment because it is asking for government intervention to compel YouTube to publish speech it may or may not agree with. The bottom line is that people are free to create speech content and to publish what they wish; however, YouTube, as a private entity, is not obligated to provide you with access to their platform if you violate their policies, even if they are unfair or unfairly enforced. That being said, I could foresee private entities that use YouTube’s platform to publish their content perhaps seeking civil lawsuits to seek damages if it could be demonstrated that YouTube has systematically violated terms of service, which could be construed as contractual. But that is a different matter altogether.
 
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Hodos said:
That being said, I could foresee private entities that use YouTube’s platform to publish their content perhaps seeking civil lawsuits to seek damages if it could be demonstrated that YouTube has systematically violated terms of service, which could be construed as contractual.
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I believe that may be an angle that they are taking also. Prager has simultaneous law suits going on against Prager right now. If they do see victory on their claims though I expect the LGBTQ creators that are getting started on a case against YouTube to take any such ruling to their advantage.
 
I suspect Youtube’s EULA pretty much gives them carte blanche to edit or remove content. And the Supreme Court quite a while ago decided EULAs are binding if you choose to use a private service, so I don’t see any chance of civil remedy here.
 
Most of the videos effected by their complaint were not even removed. They are not visible if someone has turned on restricted mode within their browser (as might be done for a kids account or on certain public computers) or that some of their videos don’t have eligibility to be fully monetized. The demonetization policy is something that came about from a boycott from the advertisers until they could ensure their ads wouldn’t show before certain types of content (as it turns topics on abortion, Nazis, and divisive or extreme positions are not brand friendly).
 
niceatheist said:
I suspect Youtube’s EULA pretty much gives them carte blanche to edit or remove content. And the Supreme Court quite a while ago decided EULAs are binding if you choose to use a private service, so I don’t see any chance of civil remedy here.
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You may be correct there, I just figured that is pretty much the only recourse that at least makes a somewhat cogent legal argument.
 
Well, if I had any sort of sight that took public postings, video, text or otherwise, I’d have a EULA that basically boils down to “I reserve the right to throw out any post for any reason and you agree you can’t sue me.” That’s the way EULAs basically work, and the attempt was made a few years ago to limit the effect of EULAs, and the Supreme Court basically said “Hey, you agreed to their terms. If you didn’t like the terms, you shouldn’t have consented.”
 
Agreed. I am not a big fan of using the First Amendment as a cloak for compelling private citizens you disagree with to provide a forum for your opinion.
 
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