Free Speech

YouTube Isn't Bound by the First Amendment

So the Ninth Circuit correctly (and unsurprisingly) holds in Prager University v. Google.

|The Volokh Conspiracy |

From the opinion, written by Judge Margaret McKeown and joined by Judge Jay Bybee and Judge Fernando Gaitan (W.D. Mo.):

PragerU is a nonprofit educational and media organization with a mission to "provide conservative viewpoints and perspective on public issues that it believes are often overlooked." PragerU does not confer certificates or degrees. Instead, the organization creates short videos for high-school, college, and graduate school-age audiences and shares them on the Internet. PragerU has posted hundreds of its videos on a broad range of socio-political issues on YouTube….

YouTube invites the public to post video and other content on its platform and is "committed to fostering a community where everyone's voice can be heard." Subject to the Terms of Service and Community Guidelines that a user must accept before posting a video, YouTube has reserved the right to remove or restrict content. YouTube may remove content that violates its Terms of Service, or restrict otherwise objectionable videos (even if they do not violate the Terms of Service), such as those deemed to be age-inappropriate.

At issue here is YouTube's Restricted Mode, which, when activated by a user, makes unavailable certain age-inappropriate content. In addition to individual users, institutions such as libraries, schools, and businesses can turn on Restricted Mode. On average, 1.5–2% of users view YouTube through Restricted Mode.

According to YouTube's "Restricted Mode Guidelines," videos that contain potentially mature content—such as videos about "[d]rugs and alcohol," "[s]exual situations," "[v]iolence" (including "natural disasters and tragedies, or even violence in the news"), and other "[m]ature subjects" (such as "[v]ideos that cover specific details about events related to terrorism, war, crime, and political conflicts")—may become unavailable in Restricted Mode. The tagging is done either by an automated algorithm that examines certain signals like "the video's metadata, title, and the language used in the video," or manually by a user. When a video is tagged, YouTube informs the content creator, who may appeal the classification. YouTube's human reviewers then evaluate the decision.

YouTube tagged several dozen of PragerU's videos as appropriate for the Restricted Mode. YouTube also "demonetized" some of PragerU's videos, which means third parties cannot advertise on those videos. PragerU appealed the classifications through YouTube's internal process, but at least some of the videos remain restricted or demonetized.

PragerU sued YouTube and its parent company, Google, LLC, on two federal claims—violation of the First Amendment, and false advertising under the Lanham Act—as well as various state law claims.

The court rejected the First Amendment argument:

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. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause "prohibits only governmental abridgment of speech," and "does not prohibit private abridgment of speech"); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state")….

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. The plaintiffs 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 Court rejected this argument. Such a rule would eviscerate the state action doctrine's distinction between government and private entities because "all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints." Instead, the Court reaffirmed 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."

Importantly, private property does not "lose its private character merely because the public is generally invited to use it for designated purposes." Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is "not transformed" into a state actor solely by "provid[ing] a forum for speech." Halleck, 139 S. Ct. at 1930, 1934….

PragerU argues that YouTube is a state actor because it performs a public function. It is true that a private entity may be deemed a state actor when it conducts a public function, but the relevant function "must be both traditionally and exclusively governmental." This test is difficult to meet. It is "not enough" that the relevant function is something that a government has "exercised … in the past, or still does" or "that the function serves the public good or the public interest in some way." Halleck, 139 S.Ct. at 1928–29. Rather, the relevant function must have been "traditionally the exclusive prerogative of the [s]tate." Indeed, "[w]hile many functions have been traditionally performed by governments," the lean list of the "very few" recognized public functions includes "running elections," "operating a company town," and not much else, Halleck, 139 S.Ct. at 1929 (internal quotation marks omitted); see, e.g., Terry v. Adams, 345 U.S. 461, 468–70 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505–09 (1946) (company town).

The relevant function performed by YouTube—hosting speech on a private platform—is hardly "an activity that only governmental entities have traditionally performed." Halleck, 139 S.Ct. at 1930. Private parties like "[g]rocery stores" and "[c]omedy clubs" have "open[ed] their property for speech.". YouTube does not perform a public function by inviting public discourse on its property. "The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use." Lloyd Corp., 407 U.S. at 569. Otherwise "every retail and service establishment in the country" would be bound by constitutional norms. Cent. Hardware Co. v. N.L.R.B., 407 U.S. 539, 547 (1972) (private parking lots do not become state actors just because they are open to the public).

That YouTube is ubiquitous does not alter our public function analysis. PragerU argues that the pervasiveness of YouTube binds it to the First Amendment because Marsh teaches 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 … constitutional rights of those who use it." PragerU's reliance on Marsh is not persuasive. In Marsh, the Court held that a private entity operating a company town is a state actor and must abide by the First Amendment. But in Lloyd Corp. and Hudgens, the Court unequivocally confined Marsh's holding to the unique and rare context of "company town[s]" and other situations where the private actor "perform[s] the full spectrum of municipal powers." Lloyd Corp., 407 U.S. at 569; see also Hudgens, 424 U.S. at 518–20.

YouTube does not fit the bill. Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not "perform[] all the necessary municipal functions," nor does it operate a digital business district that has "all the characteristics of any other American town." …

Shifting gears slightly, PragerU posits that a private entity can be converted into a public forum if its property is opened up for public discourse.This theory finds no support in our precedent. As the Supreme Court has explained, to create a public forum, the government must intentionally open up the property to public discourse. That YouTube is not owned, leased, or otherwise controlled by the government undermines PragerU's public forum theory. PragerU cannot avoid the state action question by calling YouTube a public forum….

And the court also rejected the false advertising claim:

YouTube's statements concerning its content moderation policies do not constitute "commercial advertising or promotion" as the Lanham Act requires. The statements about Restricted Mode were made to explain a user tool, not for a promotional purpose to "penetrate the relevant market" of the viewing public….

Nor was the designation of certain PragerU videos for Restricted Mode part of an advertising or promotion or a misrepresentation as to the videos. The designation and the reason for tagging videos to be unavailable in Restricted Mode are not made available to the public.

Furthermore, the fact that certain PragerU videos were tagged to be unavailable under Restricted Mode does not imply any specific representation about those videos. Although a false advertising claim may be based on implied statements, those statement must be both specific and communicated as to "deceive[] a significant portion of the recipients." The only statement that appears on the platform is that the video is "unavailable with Restricted Mode enabled." This notice does not have "a tendency to mislead, confuse or deceive" the public about the nature of PragerU's videos.

YouTube's braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act. Lofty but vague statements like "everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories" or that YouTube believes that "people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities" are classic, non-actionable opinions or puffery. Similarly, YouTube's statements that the platform will "help [one] grow," "discover what works best," and "giv[e] [one] tools, insights and best practices" for using YouTube's products are impervious to being "quantifiable," and thus are non-actionable "puffery." The district court correctly dismissed the Lanham Act claim.

The analysis seems quite right to me. The court didn't have occasion to discuss any possible California law claims, which I assume Prager University can bring in state court; but I think Prager University is unlikely to succeed on those, either.

Disclosure: I have represented Google as a lawyer, including in writing a white paper arguing that the First Amendment protects search engine results, though that is a different question than the one I'm discussing here; I have not been asked to blog about this, and I am speaking entirely for myself here. I have also done a video for PragerU on the Second Amendment, and much appreciate the opportunity to do that; I generally much admire PragerU's work.

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  1. You’ll never be a politician with that attitude — applaud a ruling against an outfit you’ve worked for and admire. Thinking prevents partisanship, and without partisanship, you’ll be stuck at your day job.

  2. Eugene, you really should reconsider that last sentence.

    1. Seriously.

      It’s pretty disturbing.

      1. I find it disturbing that would disturb you; Surely you were already aware of the fact that not everybody shares your politics/tastes?

        1. It’s disturbing that someone as normally smart and thoughtful as Eugene would admire a website where the founder recently went on an extended complaint about not being able to say the N-word.

          1. You’re disturbed by his liking a site that’s serious about freedom of speech?

            1. No government actor is stopping Dennis Prager from saying the N-word. Social convention does. So his freedom of speech is not at issue there. Also: why does he want to?

            2. PragerU is so serious about freedom of speech that it sued a private entity seeking to have Google/Youtube compelled to distribute PragerU’s speech?

          2. Prageru “teaches” that fossil fuels are wonderful green energy sources. Why the video even has a graph showing that the availability of clean water over time is correlated with fossil fuel use.

            Yeah. Admirable.

          3. founder recently went on an extended complaint about not being able to say the N-word.

            I’m no fan of Prager — even less so after this frivolous suit — but that is a grotesque misrepresentation of the facts. Setting aside that it wasn’t really an “extended complaint” at all, he was not saying, “It’s not fair that I can’t call people the n-word” or the like.

            What he was saying was that the taboo against saying the n-word was unique and silly. That is, people can say, e.g., “kike” in discussing the word — not using it against a person, of course, but discussing the word — but for the n-word, they are unable to say it without severe backlash, even in the context of condemning someone else for saying it.

            https://www.youtube.com/watch?v=Cnn2aGVcCEc

            1. I don’t think he should get too much credit for the context. It’s not “the left” making it so people can’t say the N-word, it’s humans with empathy. That’s also why I wouldn’t say the K-word in a discussion. Nothing was stoping him from refraining from saying that. Nothing is stopping anyone, except caring about the impact of words even in the context of abstract discussion.

              Also it could be read in conjunction with his video on why private conversations don’t matter, where he said that he attacks various ethnic groups while driving. Does he want the freedom to be able to say the hard R without social consequences?

              1. “It’s not “the left” making it so people can’t say the N-word, it’s humans with empathy.”

                The last thing the outrage mobs on either side can claim is empathy.

        2. It goes way beyond political differences, Brett.

          I wouldn’t find it disturbing if someone said they admired Ronald Reagan, for example. I think Reagan is much overrated on the right, and don’t particularly find him admirable, but if you do it doesn’t disturb me.

          Prager is a crackpot. Here is one example, concerning Keith Ellison:

          Forgive me, but America should not give a hoot what Keith Ellison’s favorite book is. Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don’t serve in Congress. In your personal life, we will fight for your right to prefer any other book. We will even fight for your right to publish cartoons mocking our Bible. But, Mr. Ellison, America, not you, decides on what book its public servants take their oath.

          Is this man sane?

          1. Regardless of whether Mr. Prager is sane, the important point is that Mr. Prager — perhaps because of his position with respect to Rep. Ellison and the Bible — is admired by Prof. Volokh.

          2. I’ve thought that a lot of PragerU content is pretty good, but actually they are a neocon entity with a video on the Civil War that is pure propaganda.

            1. I’m not sure what you think the word neocon means, but I’m quite certain that it doesn’t mean whatever you think it means.

              You don’t specify exactly what video you’re talking about, but a quick search of their site reveals at least one Civil War entry that’s pure history, rejecting the neoconfederate falsehoods that the war was about something other than slavery. If you’re referring to something else, it’s not obvious what.

              1. ML is our resident neo-Confederate, David.

                Not about slavery, Lost Cause, Lee as noble hero, etc. Total BS, but he believes it.

              2. David, the video contains a tiny bit of factual information used to support simplistic and unwarranted claims for propaganda purposes.

              3. I didnt call them neocon based on that video, but I would be delighted to learn what neocon means, genuinely, maybe I have it wrong, please explain.

                1. “Neo”, which is to say, “new”, conservatives, were former liberals who abandoned the left during the Cold war over the left’s refusal to be serious about the dangers of communism. Basically all the real “neo-conservatives” are either dead or in senior homes.

                  Because the neo-conservatives were disproportionately Jewish, it became fairly common to call any Jewish conservative a “neo-conservative”, but this was just a manifestation of anti-Semitism.

                  In a similar way, because the real neo-conservatives tended to be foreign policy hawks, while the original conservatives tended towards isolationism, the term has been misused to as a label for conservatives who favor an aggressive foreign policy.

                  But, as the term actually means “new conservative”, it really is only applicable to people who were formerly on the left, and later evolved into being conservatives.

                  1. Interesting, that’s different from my impression of its more recent usage. “New” in my mind was describing the new ideological and policy bent and emphasis among this particular sub-movement on the right — specifically, a more militarily hawkish and imperialist attitude — as contrasted with the traditional conservative outlook, which also persists. So I thought of it as more of an ideological persuasion, which can persist across generations, rather than a label for specific persons that died with them.

                    https://www.theamericanconservative.com/articles/yes-we-should-call-them-imperialists/

      2. Prof. Volokh’s endorsement of Prager U. is predictable. He is, foremost, an intensely partisan movement conservative. Nearly everything observable — including treatment of speech issues — follows that. He defends conservative speakers opposing censorship. He censors non-conservative speakers. He issues passes to conservative censors. He incessantly criticizes liberal-libertarian mainstream institutions. He is silent when the Trump administration offends his ostensible principles. This pattern is vivid.

        Standard movement conservative culture warrior stuff.

        In the end, he will lose, just like the other clingers.

  3. The traditional cornerstone of free speech is the ability to shout out your views from the street corner or town square. The problem now is that we have a whole digital world, and the streets and sidewalks are all owned by private entities. The gateways to those streets and sidewalks are also owned by private entities.

    Social media sites built their whole business model on being those gateways. Now they want to limit speech to what they approve. Since there is no digital equivalent to walking to the corner or town square they should be limited to only restricting speech as far as what would be limited in the town square.

    1. Ownership matters. Governments are free to start their own FB and youtube like platforms to be publicly owned forums. But they don’t because nobody wants them.

      The law has not caught up with the network effect. In the past, geography assured that forums and news sources were primarily local. That assured some diversity. But with the Internet geography doesn’t matter. The network effect means that the best platform attracts all users. Competing Youtube’s and competing Facebook’s (myspace) drop away because it’s more useful if everyone uses the same platform.

      Geography doesn’t matter also applies to countries. Hence the tension between EU and American approaches to Internet giants.

      IMO, “geography doesn’t matter” is a game changing concept. The law is glacially slow in dealing with game changers. As we approach the singularity, that is going to become an increasingly important flaw.

    2. Nobody is preventing you from saying things on the internet. You can go to GAB or 4chan if you don’t can’t use YouTube. Twitter and Facebook do not prevent you from posting things on the internet. You just want to post them in places that other people look.

      Your complaint is not that there is no street corner for you to shout at. It’s that you don’t think enough people will listen to you shout if you do it at a different street corner. You’re entitled to speak, not be heard.

      It’s also not the case that there is “no digital equivalent to walking to the corner or town square”. Quite the opposite, the availability of virtually unlimited digital distribution for anyone with an internet connection has widened unimaginably the extent of public speech. You are typing, right now, on a platform not owned by Google or YouTube, but which is accessible right now by billions of human beings.

  4. Whether YouTube is the government or not, unlike other private entities which are much smaller in scope and power, it is a genuine menace to the culture of free speech.

    We ought to recall as well that YouTube is not some small private actor that does not owe its existence to government. YouTube exists in its current form because the government has not enforced antitrust laws and because of government intellectual property laws shield YouTube from competition.

    So, it is supposed to comfort us that the government may not censor speech itself. But should we be comforted that the government may create an environment where speech may be squelched by a private actor? If the practical ability of some people to have their ideas heard in an effective manner is crushed by a private actor, does this not undermine our ability to properly engage in the democratic process and govern ourselves just as much as if the government, which through its actions and inactions empowered the private actor, did it themselves?

    1. “If the practical ability of some people to have their ideas heard in an effective manner is crushed by a private actor, does this not undermine our ability to properly engage in the democratic process and govern ourselves just as much as if the government, which through its actions and inactions empowered the private actor, did it themselves?”

      YouTube is not squelching the practical ability of PragerU to have its ideas heard. PragerU has its own website, which I believe hosts all of the videos that it posts on YouTube (and even if it doesn’t, it could). PragerU can take advantage of any number of ways to drive traffic to its website. PragerU can give talks, publish books and pamphlets, send mailers. PragerU can also post their videos on YouTube, subject to YouTube’s restrictions. Those restrictions are not squelching PragerU, even if PragerU would prefer they not be there.

      The First Amendment has never guaranteed either an audience or even access to a printing press.

      1. YouTube is not squelching the practical ability of PragerU to have its ideas heard. PragerU has its own website, which I believe hosts all of the videos that it posts on YouTube (and even if it doesn’t, it could).

        YouTube isn’t even keeping PragerU videos off YouTube! This suit wasn’t even about PragerU being banned. It was about some of their videos not being allowed to have advertising or not being deemed family friendly.

        1. Does your comment have any relevance to your views whatsoever?

          I suspect that you would be equally indifferent to YouTube’s censorship if the videos were not allowed on YouTube at all. So, this is a red herring.

          Unlike you, I also tend to think in a practical manner. If people can’t commercialize their speech while others can, that is a practical problem. The the speech that can be commercialized will be of a higher quality and quantity.

          Go ahead and stick your head in the sand, with the knowledge that “theoretically” our culture respects speech. Because apparently you are happy with theory and much less concerned about actual reality.

          1. Does your comment have any relevance to your views whatsoever?

            My comment was a response to how absurd it was for people to claim that YouTube was preventing PragerU from being heard. It was not addressing this legal issue.

            My views, since you ask so “nicely,” are that YouTube has the absolute right to choose which videos to distribute, and whose. And that goes for any other platform¹ and any other content. I hope that platforms exercise this right judiciously; I think society is generally better off if bad ideas are exposed rather than shushed. (Particularly since there’s often disagreement about what ideas are bad.) But I also think society is better off if people aren’t forced to associate with speech that they don’t want to associate with.

            ¹Note, I am not using this the way MAGA Twitter randos use this word as though it were some sort of legal talisman; I’m just using it in a generic sense.

            1. I think society is generally better off if bad ideas are exposed rather than shushed.

              While I broadly agree, I think it’s very dangerous territory to conflate being “shushed” with someone, who has no responsibility or obligation to you, refusing to host and disseminate your ideas.

              YouTube is no more “shushing” you for not publishing your message then Scholastic is “shushing” you for not publishing you message.

      2. YouTube is favoring some content over others. Which leads to the unfavored speech not being distributed on the same terms as other speech. Which distorts the free market of ideas in whatever way Google chooses.

        YouTube is the dominant way in which people in the United States share video. So, this is not a minor issue.

        1. “YouTube is favoring some content over others.”

          So? It’s a free country. They’re a private actor, not the government.

          “Which leads to the unfavored speech not being distributed on the same terms as other speech.”

          So? It’s a free country. The First Amendment has never guaranteed either an audience or even access to a printing press.

          “Which distorts the free market of ideas in whatever way Google chooses.”

          Or it’s part of the free market of ideas. The marketplace of ideas has never required that everyone have access and use of the same distribution network or that every statement from everyone is treated equally. Some people’s ideas get much more attention than they should simply because they are famous. I guarantee if Taylor Swift and I put out a statement tomorrow on the same topic, hers would get virtually infinitely more attention than mine, regardless of the relative quality of the topic. Do you want to restrict what celebrities can say so they don’t drown out my voice?

          Like every other market, the marketplace of ideas is an imperfect market. Like every other market, giving the government control makes it worse.

          “YouTube is the dominant way in which people in the United States share video.”

          Porn Hub might have something to say about that, but sure.

          “So, this is not a minor issue.”

          You’re right. It’s not a minor issue. It’s not an issue at all.

          1. It’s a free country, but they’re violating their express terms of service when they do it.

            1. 1. I doubt it. I bet YouTube has better lawyers than that.

              2. Even if it were true, what are the damages for a website violating its terms of service? Is there even a contract?

              3. That has nothing to do with whether YouTube is a government actor subject to the First Amendment.

            2. No, they aren’t, Brett. Please stop.

          2. “So? It’s a free country.”

            It is a less free country when some can express themselves and others cannot. That is the problem.

            “They’re a private actor, not the government.”

            Like the government, they are a near-monopoly. YouTube is the way people distribute video in the United States. If you care about the actual health of the free market of ideas, does it make it that much better that it is a “private entity” doing the damage and not the government? I think not.

            “The First Amendment has never guaranteed either an audience or even access to a printing press.”

            You live in lalala-theory land. If ideas cannot reach an audience, then the free market of ideas does not work. Not being guaranteed access to a printing press is a BUG not a feature. You are talking about one of the downsides of history (people not being able to communicate with like-minded people) and basically saying that it is a good thing. But it is a bad thing. Ironically, you claim that the suppression of communication makes us a “free country.” No. We aren’t a free country if unelected executives at a tech company get to decide who says what and who can hear from whom.

            “Or it’s part of the free market of ideas.”

            The way Google should speak is by speaking, not suppressing the speech of others. Google’s censorship is part of the “free market.” Sure. If you think Google should decide for you instead of you deciding for yourself.

            “The marketplace of ideas has never required that everyone have access and use of the same distribution network or that every statement from everyone is treated equally.”

            You are mistaking a historical reality (speech has been expensive to distribute in the past) with a feature that is acceptable now when speech is cheap (in fact, nearly free) to distribute.

            If you don’t treat people equally, there is no reason to think the best ideas will emerge from discourse. Also, people really cannot government themselves properly, since they will not be fully informed.

            “I guarantee if Taylor Swift and I put out a statement tomorrow on the same topic, hers would get virtually infinitely more attention than mine, regardless of the relative quality of the topic. Do you want to restrict what celebrities can say so they don’t drown out my voice?”

            This is the point. In the past, Taylor Swift would be the only one who has a voice. Now, your voice can reach the audience that wants to listen to you. Are you saying the marketplace is better not only if Taylor Swift is more popular than you (and thus has an ability to reach more people), but if you are also unable to communicate with that subset of the population that wants to hear from you? If we only hear from Taylor Swift, will we be as informed?

            “Like every other market, the marketplace of ideas is an imperfect market.”

            You should have started with this concession. It is BAD, all things being equal, for people to not be treated equally with respect to their ability to reach audiences who would freely choose to listen. (We aren’t talking about forcing anyone to listen to unwanted speech.)

            “Like every other market, giving the government control makes it worse.”

            You may believe this. That Google’s monopoly and ability to crush ideas at will is the best we can achieve. But at least don’t pretend like it is perfect. Unequal access is BAD. The best you can say is that it is the lesser evil. But you started your argument off saying it doesn’t matter. It DOES matter.

            “You’re right. It’s not a minor issue. It’s not an issue at all.”

            A third party interfering with communication between X and Y is a non-issue? How does this square with your concession that the marketplace of ideas is imperfect?

            This makes the marketplace of ideas less perfect. It a major problem.

            1. Leaving aside all of your lies and misrepresentations, yes, it’s a non-issue. Because YouTube is not interfering with communications between PragerU and anyone else. YouTube is merely placing some restrictions on how PragerU uses YouTube’s resources. PragerU doesn’t want to do the work of building up its own network. It wants to piggyback off the work that YouTube has already done. To protect that work, YouTube imposes certain restrictions. If PragerU doesn’t like those restrictions, or the way that YouTube enforces them, there are ample alternative methods PragerU can use to communicate with people.

            2. Even if you want to take this extreme position that everyone should have complete access to unrestricted hosting services, how in the world is that YouTube’s responsibility? If there is such a right, then it’s the government’s responsibility to do it, not YouTube’s responsibility to do so.

              1. “f there is such a right, then it’s the government’s responsibility to do it”

                Or maybe Oprah. “You get a printing press. You get a printing press. And you get a printing press.”

    2. “If the practical ability of some people to have their ideas heard in an effective manner is crushed by a private actor…”

      Notice that “crushed by a private actor” here means “because the private actor won’t distribute that speech.”

      Which antitrust law did YouTube violate but which the government isn’t enforcing?

      1. Thinking in a more practical matter, which you obviously are not, when some people have their speech distributed and others do not, that isn’t really a marketplace of ideas, is it?

        YouTube is obviously the main forum by which people share videos in the United States.

        1. Thinking in a more practical matter, which you obviously are not, when some people have their speech distributed and others do not, that isn’t really a marketplace of ideas, is it?

          For all of human history, there have been three avenues for “selling” your ideas.

          (1) Do it yourself. Go tell people, directly, about your ideas.
          (2) Convince/pay someone else to do it. Find someone else to go spread your ideas for you.
          (3) Have such a good idea that randos do #2 for you without you even asking.

          If you’re failing so bad at #2 that you can’t even pay someone to publish/host/distribute your ideas, that doesn’t mean that there isn’t a “marketplace of ideas”, it means your ideas are really unpopular.

          Further, as a “practical matter”, Freedom of Speech has never been interpreted as “Entitlement to Platform”. You have a right to shout from the street corner. You do not have a right to shout from someone else’s coffee shop.

  5. It would be interesting to see how Google/YouTube respond to a public accommodation and discrimination suit.

    1. Under what law?

      1. Clingers don’t need no stinking laws. They’ll just put Barr on it, after Trump tweets to lather the rubes.

        1. I’m surprised to hear you come out so strongly in favor of Thomas’s position on Bivens cases.

          1. I am not much familiar with Justice Thomas’ position on Bivens cases. What is that position, and what inclined you to contend I support that position?

            1. That’s odd. You posted comments in a post discussing his position on Bivens cases. I would have thought that meant you actually read the post first. You never fail to disappoint.

    2. After looking at Title II I assume they would respond with a successful motion to dismiss for failure to state a claim. Google/YouTube do not fit into the definitions of a public accommodation. Even assuming that was you’d have to plead it was actually engaged in “race, color, religion, or national origin” discrimination, and not just on the things people say that they conclude are not worth promoting.

      1. Wouldn’t the more relevant point be if public accommodation laws are constitutional

        1. Under current law no. And YouTube and Google would never argue that if they were sued under Title II.

  6. While I agree with the 1st amendment analysis, I’m a bit troubled by the court blowing off YouTube’s violation of it’s publicly announced term of service.

    1. The court did no such thing. Read more better.

  7. “So the Ninth Circuit correctly (and unsurprisingly) holds …”

    Actually, it’s at least as often as not when the Ninth Circuit surprisingly holds correctly.

  8. The court should sanction PragerU’s attorneys for filing a frivolous claim. It is settled law that YouTube cannot violate the First Amendment because it is a private entity. PragerU’s attorneys were undoubtedly aware of the law when they filed suit. They did not assert a First Amendment claim in the hope of prevailing in court. PragerU probably filed suit to present to the public its narrative that it is a conservative organization being shut down by the liberal establishment.

    Of late, many high-profile plaintiffs are filing cases they know are meritless. (Trump’s lawsuit filed yesterday against the New York Times was particularly silly.) These plaintiffs are filing dubious lawsuits because the legal fees of filing suit are small compared to the value of the free publicity they will receive. The courts should not be used this way.

    1. Yes, I’m inclined to think the 1st amendment claim was frivolous, PragerU isn’t ignorant of this point. OTOH, can any claim really be frivolous if the luck of the draw might give you a judge who likes it regardless of the theoretical merits? A good deal of well established precedent is rationally frivolous!

      Their state law and TOS arguments are a lot stronger. Youtube really IS violating their terms of service on a fairly routine basis to disadvantage conservatives.

      1. Spoiler alert: Brett is making stuff up. He’s never read their Terms of Service.

  9. This ruling seems correct to me, and YouTube is still bad and wrong. As libertarians, I can’t think of any more fundamental precep than “not all that we find distasteful should be illegal”. I don’t understand why conservatives and IDWs keep complaining about YouTube, but aren’t moving their operations. Some mirror their videos to bitchute, but YouTube is still always their primary focus.

    1. Vindicate your ostensible market beliefs, start a service that flatters bigots and yahoos, and profit!

      Or, clingers, just keep whining.

      1. Why such hate, “rev”? What happened to love and grace, or turn the other cheek? May I suggest you work on removing the plank from thy own eye before focusing on the splinters in others’?

        1. I have lost my taste for political correctness and no longer appease (including no longer enabling them to hide behind euphemisms and societal politesse) bigots, half-educated rubes, and many other conservatives.

          1. And yet here you are. Curious that you cheer on YouTube censoring anyone who’s politics you disagree with, yet spend hours a day commenting on reason, who doesn’t censor their political intraoculars….. maybe something to learn there.

    2. It isn’t complicated: They want to reach NEW people. If they move to a different, and inevitably much smaller platform, they cut themselves off from most of their potential new audience.

      Retreating to a ghetto might be easier. But it basically guarantees being relegated to the fringe. Which is exactly what YouTube is attempting to do to them.

      1. Conservatives have formed a number of separatist organizations consequent to dissatisfaction with mainstream institutions — why would or should this situation differ?

      2. BREAKING NEWS

        PEOPLE WITH FRINGE VIEWS COMPLAIN ABOUT BEING RELEGATED TO FRINGE

        1. Yeah, PragerU’s views aren’t particularly fringe. YouTube would like to make them fringe, however.

          1. It’s not fringe to say that private comments and conduct are not an accurate indicator of a person’s character?

            Or to engage in heterosexual AIDS denialism and claim it is a leftist myth?

            Or to claim that the Southern Strategy is a leftist myth, despite being the prevailing view among historians, political scientists, and key Republican figures themselves?

            Or again, and I cannot emphasize this enough, saying it is idiotic that he can’t say the N-word, when the only thing that is stopping him is social convention and human morals?

            Those mainstream totally-not-fringe views?

            1. Prager is a fringe-inhabiting, and clinger-lathering, casualty of the American culture wars. His views are destined to become less popular as America’s electorate continues to improve. American progress will continue to be shaped against his wishes, against his efforts.

              He’s a disaffected extremist whose narrowcasting profits do not diminish his position at the right-wing fringe.

    3. I don’t understand why conservatives and IDWs keep complaining about YouTube, but aren’t moving their operations.

      Consider the case of Fox News (which was set-up to be a “conservative” news station) and Gab (which was set-up to be a “conservative” chat program).

      Fox News, while conservative, didn’t and doesn’t go so far into it’s conservative bias as to turn off most of the middle, and while it caters to the right, it won’t go all the way to the far right.

      Gab put itself out as super-conservative from the get-go, and immediately got Nazis, anti-semmites, and so-on as it’s core base, and refused to rebuke them. It’s so “Conservative” that the majority of conservatives think it goes “too far”.

      And that’s the problem in a nutshell. Most of the time when conservatives get fed up with the “liberal” stuff out there, they don’t try to make a “leans conservative” alternative like Fox, they try to make a “goes super-hard conservative” like Gab. And as a result, they can’t attract the middle.

      1. I don’t find minds particularly gab-y, though the block user button does get a workout whenever I’m on bitchute. I think the fediverse is the early days of the next evolution of social, with a standard protocol, but different communities that can maintain their own standards…if the sjws don’t succeed in breaking the protocol to own gab :/ I guess we’ll see, but I think after 15 years of social media evolution, we have the experience and tools to solve some of these problems.

      2. “Gab put itself out as super-conservative from the get-go, and immediately got Nazis, anti-semmites, and so-on as it’s core base, and refused to rebuke them.”

        Gab put themselves out as an uncensored forum. Naturally, if you set up an uncensored forum, you’re going to get people who get censored elsewhere, and some of those people will be pretty scuzzy. But, unless you think the very idea of providing an uncensored forum is disreputable, (I gather this is becoming a popular view on the left.) just refusing to to censor people should not be taken as an endorsement of their views.

        1. To be clear, are you actually disputing my point (which is that most explictly “conservative” options turn-off the middle and even most “conservatievs”), or are you just jumping to Gab’s defense?

          ’cause I’m not gonna argue Gab’s reputation. It earned it’s reputation fair and square.

        2. Except Gab’s own twitter feed has had its own history of posting and promoting anti-Semitic and racist views. Don’t believe me? Ask Popehat.

  10. “At issue here is YouTube’s Restricted Mode, which, when activated by a user, makes unavailable certain age-inappropriate content. In addition to individual users, institutions such as libraries, schools, and businesses can turn on Restricted Mode. On average, 1.5–2% of users view YouTube through Restricted Mode. . . ”

    This is misleading. On YouTube, “age-restricted” is not the same thing as “Restricted Mode.” When YouTube age-restricts a video, this not only blocks access by the 2% of users for whom Restricted Mode is active, but also the vastly higher percentage of users, in the millions, who are not “signing in” with login credentials to verify their age to view an age-restricted video or who are under 18. YT has carried out its extensive and blatant political censorship in both ways. I believe PragerU also had some videos age-restricted and not just placed in Restricted Mode.

    This doesn’t affect the 1A issues, of course.

  11. Looks like Eugene stirred up the Cancel Culture Fascists with his compliment of Prager U

    1. More like he briefly dropped the mask.

    2. It’s not cancel culture to simply say “you should rethink this opinion because the person you are endorsing is actually not good.”

  12. It’s time to make political affiliation a federally protected class. It’s the only way to stop the Liberal Fascists.

    1. We must embiggen government in order to ensmallify it!

      1. Haha yeah civil rights protections are hypocritical for conservatives to call for haha

        1. Being conservative is a personal choice unlike race, color, ethnicity, sex, national origin, or sexual orientation.

          1. Gender Identity is a personal choice, but people are wanting that to be a protected class. Further there already are some district that protect political affiliation, such as D.C.

        2. As though you’re a big fan of the Civil Rights Acts.

          YouTube isn’t a civil right. And ideology cannot practicably be a protected class.

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