YouTube and other tech giants will be allowed to continue censoring speech on their platforms, after a ruling by San Francisco’s Ninth U.S. Circuit Court of Appeals.
Experts were not surprised, calling the decision “unexceptional” and “unremarkable” because the First Amendment only applies to government censorship.
The appeals court’s ruling, handed down Wednesday, concerns a 2017 case in which Prager University, a nonprofit organization that produces and disseminates conservative videos, sued YouTube and parent company Google for flagging some of its videos as inappropriate, restricting them from being seen by children, students and library-goers as well as demonetizing the videos so ads couldn’t be run against them.
The restricted videos—which YouTube never took down—include titles such as Why Isn’t Communism as Hated as Nazism?, Where Are the Moderate Muslims? and The World’s Most Persecuted Minority: Christians.
In her opinion, Circuit Judge M. Margaret McKeown wrote that “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.”
“It’s boilerplate constitutional law that First Amendment rights apply only to censorship by government agencies,” said Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information. “No matter how important YouTube or Facebook might be considered as platforms for public discourse, they’re just not the government. We constrain the government’s authority over speech because the government has tanks and jails and enormous regulatory authority over people’s lives, in a way that private publishers don’t.”
The ruling comes at a time when the First Amendment is being tested.
For instance, take Section 230 of the Communications Decency Act, commonly known as the “26 words that created the internet.” Both Congress and the Department of Justice are debating this clause, which gives tech companies protections when defamatory speech happens on their platforms.
“There’s been a lot of attention to 230 because it’s generally pointed to as giving ‘immunity’ to the platforms to leave objectionable speech up,” said Gabe Rottman, who directs the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press.
The Justice Department recently held a workshop on Feb. 19 exploring Section 230, and separate bills from Sens. Lindsey Graham and Josh Hawley both threaten tech firms’ Section 230 protections. Hawley’s bill specifically removes these protections if platforms do not “provide content moderation that is politically neutral.”
Rottman called the bill “textbook content regulation” from the government, which is not allowed under the First Amendment.
Wednesday’s decision about PragerU came just hours before President Donald Trump’s reelection campaign sued The New York Times over an op-ed from last March. Last year, Supreme Court Justice Clarence Thomas called on the court to reconsider New York Times v. Sullivan (1964), the landmark decision that makes it difficult for public officials to prevail in defamation suits.
A repeal of Section 230, a much more likely scenario than the censorship PragerU had sought, could open the doors for tremendous liability for tech platforms—and a deluge of lawsuits—in what’s already a highly litigious environment for publishers of all kinds.
Will Youmans, an associate professor at George Washington University’s School of Media and Public Affairs, noted that legal stipulations for users—including the platforms’ ability to cancel or restrict the reach of certain accounts—are typically spelled out in their terms of service.
“In fact, if the state intervened to prevent platforms from discriminating based on viewpoint when canceling accounts, for example, the platforms would have a strong First Amendment argument against such a regulation,” Youmans said.
PragerU argued that YouTube promotes itself as a “forum intended to defend and protect free speech where members of the general public may speak, express and exchange their ideas,” even claiming that the platform engages in false advertising by promoting itself as such. The original complaint, filed in the U.S. District Court for the Northern District of California, claims that YouTube restricted the videos “not to protect younger or sensitive viewers from ‘inappropriate’ video content, but as a political gag mechanism to silence PragerU.”
Rottman noted that the First Amendment protects private companies by banning Congress from regulating speech on their platforms when they’re making important decisions about whether to moderate the content users share.
“Particularly, for a platform like YouTube, which has to moderate its content—to make decisions about what content to leave up and what content to take down—those First Amendment protections are pretty important,” Rottman said.
However, if the First Amendment were expanded beyond the government to apply to, say, Facebook, “then Facebook would be powerless to take down posts even if they’re spreading dangerous conspiracy theories or outright lies, since there’s no blanket exception to the First Amendment for falsehoods,” LoMonte added.
Even PragerU’s leadership said the decision wasn’t a surprise. “Far from an unexpected setback, we look forward to arguing the merits of our case in both state and federal court, as well as the Ninth Circuit, or even the Supreme Court if that is what it takes to ensure every American’s freedom of speech is protected online,” CEO Marissa Streit said in a statement.
“We’re pleased with this decision,” Google said in its own statement. “We go to extraordinary lengths to build our products and enforce our policies in a way that doesn’t take political leanings into account. And we’re proud that YouTube continues to be a place where many different voices are welcome, including PragerU, which has 2+ million subscribers.”
Lata Nott, executive director of the First Amendment Center at the Freedom Forum Institute, said that even though this isn’t a First Amendment issue, it’s worth paying attention to.
She sympathizes with smaller voices that may not understand why their speech is being blocked or restricted, because the platforms aren’t always transparent with what speech is permitted and what isn’t.
“This makes me think that, if you have a system where there’s only a few platforms where people can express themselves… I know there are others, but YouTube is much mightier than the others,” Nott said. “Then, there might be more of a monopoly issue than it is an issue of applying the First Amendment to private platforms.”