Ninth Circuit Rejects Claims That YouTube's Blocking of Content Was Compelled by or "Entangled with" Government

From Doe v. Google LLC, decided yesterday by the Ninth Circuit (Judges Margaet McKeown, Consuelo Callahan, and Lawrence Vandyke):

Appellants are fourteen self-described "conservative" content creators who spent years growing their YouTube channels and amassing more than 771 million views. These channels discussed topics such as "Hunter Biden and the Ukraine Scandal," "the ongoing corruption probe," "social media censorship," "race relations or protests in America," and "anonymous posts on political issues by someone identifying themselves as 'Q.'" Appellants' videos were hosted on YouTube, a video sharing platform whose Terms of Service give it discretion to terminate accounts under certain circumstances, including if YouTube believed that there was "conduct that create[d] (or could create) liability or harm to any user, other third party, YouTube or [its] Affiliates."

Appellants allege that on October 15, 2020, YouTube terminated or suspended Appellants' channels, claiming that it was "taking another step in [its] efforts to curb hate and harassment by removing more conspiracy theory content used to justify real-world violence." … In their claim for a First Amendment violation, which is the premise for federal court jurisdiction, Appellants asserted that YouTube and Google—the parent company of YouTube—either conspired with the federal government, or were compelled by the federal government, to take down their video content. This, they argue, constitutes an activity akin to state action and supports the assertion of a constitutional claim against a private company for its conduct.

In support of their assertion, Appellants cite seven events involving federal officials regarding YouTube, Google, or general social media platform moderation policies that took place between 2019 and 2020: (1) statements by House Speaker Nancy Pelosi on possibly removing the protection provided to social media platforms under Section 230 of the Communications Decency Act; (2) a letter by Representative Adam Schiff to Google's CEO and YouTube's CEO encouraging the curbing of COVID-related misinformation on social media platforms; (3) a statement by Speaker Pelosi at a Georgetown University forum on COVID calling for greater accountability for "the division and the disinformation proliferating online"; (4) the Senate Commerce Committee's vote to compel the testimony of Google's CEO regarding content moderation; (5) the House of Representatives' passage of House Resolution 1154, a non-binding resolution condemning the "QAnon" conspiracy theory, encouraging Americans to "seek information from authoritative sources," and acknowledging social media platforms efforts to remove "QAnon groups and their content from their platforms"; (6) a Department of Justice antitrust lawsuit against Google for maintaining monopolies in general search services and search advertising; and (7) the questioning of Facebook founder Mark Zuckerberg by the Senate Judiciary Committee concerning programs used to "to coordinate censorship efforts targeting content creators and others who expressed disfavored viewpoints." …

The First Amendment commands that "Congress shall make no law … abridging the freedom of speech." The Supreme Court has held that "the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech." However, Appellants argue that YouTube's removal of their content comes within the state-action doctrine and that YouTube can be held liable for a First Amendment violation, because YouTube was either (1) compelled by the federal government to remove the content, or (2) so entangled with the federal government that there is a sufficient nexus between the government's conduct and YouTube's conduct….

Under the compulsion theory, a private entity's conduct may constitute state action "when the government compels the private entity to take a particular action." For a private entity's conduct to constitute state action, the government must have "exercised coercive power or ha[ve] provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government]."

The government actions alleged in the complaint do not meet this standard. The antitrust suit against Google and the Senate Committee testimony of certain CEOs are only tangentially related to YouTube's content moderation decisions. Moreover, those events, like the acts that are more specifically directed at YouTube—for example, Speaker Pelosi's and Representative Schiff's comments—lack force of law, rendering them incapable of coercing YouTube to do much of anything. Cf. West v. Atkins (1988) (finding that, in the context of 42 U.S.C. § 1983, a state actor's challenged conduct has force of law when the actor has exercised power possessed by virtue of law and was made possible only because of their grant of authority by the state). In both their briefing and at oral argument, Appellants focus on House Resolution 1154, but in addition to having no force of law, the resolution mentions Google only in passing, and neither mentions nor asks anything of YouTube. Appellants have not alleged facts that suggest that the government compelled Appellees' actions.

Another fundamental problem with Appellants' compulsion theory is that the state-action doctrine only allows plaintiffs to hold the government liable for a private entity's conduct and does not support a claim against the private entity itself. Indeed, our precedent precludes such an inversion of liability. See Sutton v. Providence St. Joseph Med. Ctr. (9th Cir. 1999) (finding it is the state actor, and not the coerced private party, that should be held liable for a constitutional violation that arose from the state's compulsion). [Note that not all federal circuit courts have seen things this way, as Sutton acknowledged. -EV] Appellants' compulsion theory cannot sustain their First Amendment claim against YouTube and Google….

The Appellants' governmental nexus approach to the state-action doctrine is also unavailing. "Typically, the nexus has consisted of participation by the state in an action ostensibly taken by the private entity, through conspiratorial agreement …, official cooperation with the private entity to achieve the private entity's goal …, or enforcement and ratification of the private entity's chosen action …." "[A]t bottom, the inquiry is always whether the defendant has exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."

Appellants do not allege that sort of close connection here. In support of their nexus theory, they focus on the Twitter exchange between Representative Schiff and YouTube's CEO. But as the district court explained, an exchange between an individual member of Congress and YouTube's CEO about COVID-19 simply does not allege the kind of entanglement between a government entity and private conduct necessary to support a finding of state action.

Similarly, Speaker Pelosi's statements and House Resolution 1154 are insufficient to show that anyone linked to the federal government was "so far insinuated" or "inextricably intertwined" with YouTube's content-moderation decisions that those decisions could be "fairly attributable" to the government. Indeed, Appellants have failed to show any link between the alleged actions by the Speaker and the House and YouTube's decision to remove Appellants' channels…. "Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality." ….

Even accepting Appellants' allegations of material fact as true and construing them in Appellants' favor, they fail to show the exercise of "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law" necessary for YouTube's actions to be akin to state action such that the company might be held liable for a First Amendment violation….

Comments

[BravoCharlieDelta]

We know this is nonsense. We’ve seen the coordination. We've seen whistleblower leaks of special portals created for .gov users to report content to be censured.

[Dr. Ed 2]

Would RICO apply here?

IANAA but my reading is that the government officials are considered to have acted as individuals, conspiring to harm the economic enterprise of the plaintiffs.

And how would that be any different from the local mobsters, acting as individuals, conspiring to harm the economic enterprise of the plaintiffs.... And wasn't the civil version of RICO, with treble damages (?) explicitly written to cover the latter?

So let the 9th Circus rule as it did, let them have their special portals and the rest -- it all can be used for the RICO suit.

[Zarniwoop]

Would RICO apply here?

Do some research; start here: https://www.popehat.com/2016/06/14/lawsplainer-its-not-rico-dammit/

[Zarniwoop]

but to distill the fundamental point:

RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

[Dr. Ed 2]

It depends on the predicate acts.

[Zarniwoop]

And your mood disorder. See the link above.

[Dr. Ed 2]

I did check the asininely sophomoric link -- and then found another which was much more helpful because it contained a link to the actual statute. Otherwise known as a "primary source."

It says that there has to be two "predicate acts" which have to be "indictable" -- not indicted. The latter is quite interesting because as the DoJ burns the rulebook in pursuit of Evil Orange Man, it's also redefining the concept of "indictable" -- in other words, anything that Trump is indicted for becomes "indictable", etc.

18 USC 1951 comes to immediate mind as an indict*able* predicate act, as to specific things (e.g. Hunter's Computer), 18 USC 1512 and 18 USC 1513 do as well.

Yes, I know you will say they don't apply here -- and they probably shouldn't -- but then Trump's telling an audience to "peacefully and patriotically" redress their grievances is not inciting a riot, either -- and memory is that EV explicitly wrote that on January 7th.

My point is that we are living in an era where law is more political than legal, and that in such an environment, one plays the politics and not the law.

And judges who don't like that can be impeached.

[Dr. Ed 2]

I'm going to go further -- I asked a simple question with more of an understanding of the actual statute than perhaps you realized.

Posting a link to the actual statute or a rational (non insulting) explanation of the statute would be the adult thing to do. Engaging in ad hominum abuse is not only childish but indicates the total lack of merit in your argument.

30 years ago, I would have told you that Trump couldn't have been impeached for what he was -- that the Dem House Leadership would never let those specific charges go forward. Remember what Clinton was impeached for -- not for getting BJs in the Oval Office or even lying about it, but lying about it under oath in a court deposition, i.e. perjury, and something he also lost his law license over.

That was then, this is now.

[Dick King]

Does anyone know whether US V Enmons is still good law?

US V Enmons is an early 70's decision by the Supreme Court that stated that extortionate acts that might otherwise be Hobbs Act extortionate predicate acts wouldn't be, if they were committed in the furtherance of a legitimate Union objective.

I came across a list of reversed SC decisiions: https://constitution.congress.gov/resources/decisions-overruled/ . and Enmons wasn't there. However, it could have been reversed by statute. The wikipedia page claims that Congress tried -- and failed -- several times to make Union thuggery a Hobbs Act violation even when committed in furtherance of legitimate Union objectives.

The reason I care is that the new PRO act that our union-orgnizer-in-chief proposes any chance he gets says that members of a would-be bargaining unit only have to be induced to sign a card-check card in the presence of a Union organizer, and that the employer has to deliver a list of physical address [NOT email addfresses or phone numbers, for those who have them] to the Union organizer -- convenient for Teamsters to visit the employees and "persuade" them to sign cards.

Disclaimer -- I have been a would-be victim of Teamster thuggery. During a bitter labor dispute, a Teamster or Teamsters unknown cut the brake cables of my bicycle while I was at work, which could have caused all sorts of excitement at the next red light, while leaving my deurailler [shifter] cable alone, which I would have been more likely to notice. I wasn't even in the bargaining unit. They threw up a picket line, I was working on a software contract for a contracter to the company, they asked me and the other four members of my small software company to stop work in sympathy, and we didn't. I was the only one who regularly biked to work, a fact that most of the thirty or so Teamsters who worked at the site knew.

-dk

[Dr. Ed 2]

It appeared to be 5 years ago.
See: https://nrtwc.org/teamster-toughs-get-away-violence/

[Dick King]

Thank you very much.

I DO like this site, and its community at its best.

—dk

[David Nieporent]

Would RICO apply here?

No. This has been yet another episode of Simple Answers to Stupid Questions.

[Dr. Ed 2]

1: Was Hunter Biden's hard drive evidence of a Federal Offense(s)?

2: Was there a conspiracy to "prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense"?

3: Have you ever read the RICO statute?

NB: it says "a" law enforcement officer or judge" -- I read that as "any" and had the NYP not been censored, it is statistically likely that *a* law enforcement officer or judge" would have read about the laptop. It might even have started an investigation.

[Dr. Ed 2]

My point is that the statute neither specifies which LEO or Judge, nor specifies how the communication is to be made.

Hence, I argue, widely distributing evidence to the general public, knowing that it includes both LEOs and Judges, constitutes communication to the same.

And knowing that everyone else has seen the same information may be a more effective communication to both LEOs and Judges because it’s harder to ignore. (The FBI could ignore the laptop if no one else knew about it...)

[Nige]

'it is statistically likely that *a* law enforcement officer or judge” would have read about the laptop.'

Ok, that's funny, who says conservatives can't do satire.

[David Nieporent]

1) Assuming there is any such thing as "Hunter Biden's hard drive,"¹ we have not seen "evidence of a Federal Offense."
2) No.
3) Yes.

¹Nobody except the half-blind guy claims to have seen a laptop, and he doesn't claim to have seen Hunter Biden. There are, of course, a lot of digital files out there that people are purporting to be from a disk image of a hard drive taken from that laptop, but we don't know that.

[Nelson]

And yet every time these delusions get exposed to evidentiary requirements and impartial courts, they are shown to be baseless nonsense.

There's either a conspiracy of tens of thousands of people working with the government against every conservative in America, or these platforms don't want specific extremists to make their sites less pleasant for users or less appealing to advertisers.

Google "Occam's Razor" and figure out which of the two is more likely.

Not everyone wants to be 4chan. And you can't force them to.

[BravoCharlieDelta]

https://nypost.com/2022/10/31/feds-keep-facebook-censorship-portal-despite-dhs-disinfo-board-demise/

https://www.facebook.com/xtakedowns/login

You bootlickers are always so dumb,

[Michael P]

These platforms are acting at the behest of extremists. Yes, there is a conspiracy of tens of thousands of people -- they know that without extreme bias in traditional and social and online media, America would vote like Texas.

[Dr. Ed 2]

"There’s either a conspiracy of tens of thousands of people..."

It ain't the eighties anymore -- what you fail to understand is that a lot of this censorship is automated, as are the complaints that lead to the censorship.

"or these platforms don’t want specific extremists to make their sites less pleasant for users or less appealing to advertisers."

That's where "truth in advertising" -- to the advertisers -- comes in and why I think the wire fraud laws may apply. If the site were to openly state (advertise) that it will ruthlessly censor any viewpoint to the political right of Vladimir Lenin, fine.

But they advertise that they are open platforms and that thus offer access to a broad section of the population, including conservative demographics that advertisers are particularly interested in. That's fraud.

[Brett Bellmore]

It's a conspiracy, which is to say, people working together. It's just not a secret conspiracy, as the people doing it don't think they're conspiring to do anything wrong, and so don't see any need to hide it.

[Sarcastr0]

Believe it or not, Brett, there are not tens of thousands of people working with the government against every conservative in America, covertly *or* overtly.

I know you think that there are legions of rabid leftists in every institution out there willing to break all the rules to prevent the GOP from winning elections.

Your main evidence is your own sense of how people work. Which is profoundly distorted.

[Nige]

Still can't muster the evidence for court, though, no matter how open and obvious you claim it is.

[David Nieporent]

1) You meant censored.
2) Please stop using "whistleblower" when you don't know what it means.
3) Anyone, ".gov users" included, can make suggestions to private individuals. As long as there's no coercion, there's no issue.

[Dr. Ed 2]

"Anyone, “.gov users” included, can make suggestions to private individuals. As long as there’s no coercion, there’s no issue"

Actually there is -- it's like using a police car to go visit your neighbor.
It's the appearance of color of law and there very much is an issue.

Why do you think that EV has "[n]aturally, his posts here (like the opinions of the other bloggers) are his own, and not endorsed by any educational institution." posted above? And he's not even hosting this on a UCLA.EDU machine.

But back to the police car. Let's say that uniformed police officers go up to cars stopped at a stop sign (traffic backs up) and solicit donations for the (small town's) volunteer fire/ambulance department. Let's also say that they park the cruiser with blue lights flashing "for purposes of safety" on the side of the road here.

Would that be problematic?

Hint: this really happened and it was. It was the same police chief who was later involved in the tragic gun show incident where an 8-year-old fatally shot himself with a fully automatic Uzi. This was after the Chief gave a gun safety demonstration that none of the students would ever forget, accidentally taking out a doorframe in the town office with a weapon that actually *was* loaded at the time...

https://abcnews.go.com/US/police-chief-acquitted-uzi-trial-christopher-bizilj/story?id=12615703

[Randal]

Even if you had a point, it's not YouTube or Facebook's problem for taking the suggestions. It's the government actors' problem for making them. Suing YouTube is like suing the people making the donations in your analogy. It makes no sense.

YouTube can censor however it wants to censor. If it wants to censor along government guidelines, it can. (And if it were being coerced, it would be the victim.) I can see how the government issuing "Censorship Guidelines For Social Media Platforms" could be a 1st Amendment problem... I was not a fan of the disinfo board and am glad it's gone. But take it up with the government, don't take it out on the platforms. They're not doing anything wrong. If anything they're doing the patriotic thing.

[MatthewSlyfield]

"Suggestions" to private actors from government officials are inherently coercive.

[Sarcastr0]

That would be a pretty radical departure from current law.

[Brett Bellmore]

I'm sure it's no revelation to you that a great many current legal doctrines are utterly asinine.

Of course "suggestions" from people in a position to harm you and get away with it are coercive. But the government finds it convenient to have the law pretend otherwise.

[Sarcastr0]

Beyond the practical issues with basically treating huge segments of private industry as government action, this thread seems to have been a discussion about what the law is, not what it ought to be.

Actually, industry stakeholders seem quite secure in their ability to influence government to address their issues, and is not living in fear of some rando in the government's lack of approval.

This big business as a put-upon oppressed entity is ridiculous.

[Absaroka]

"This big business as a put-upon oppressed entity is ridiculous."

That seems to be understating things a bit, and somewhat missing the point.

If congress is futzing with the tax code, I expect Google, like any big business, to do the usual sleazy things - hire legions of lobbyists, make campaign contributions, locate facilities in the right districts, etc, etc. We all know that song, and big business isn't an unarmed victim.

It's a little different when some congresscritter intimates that it sure would be nice if google put a finger on the moderation scales, and BTW the tax code hasn't been revised in a while, has it? Google may not face the same billion$$ of incentives to fight back in that case.

Remember Florida and Disney? Not completely analogous - Disney was talking actual $$$ there - but it makes the point that maybe we don't want the government twisting arms about speech, whether the target is the corporation itself, or the corporation's customers.

[Sarcastr0]

Congresspople grandstanding about what business should do is not new, nor is it something businesses lack defenses against should they care to.

Businesses joining government in the crafting of policies as stakeholders is actually something I think results in better outcomes. And the main danger there is agency capture, not government coercion.

Yes, government arm-twisting would be screwed up. There are controls both internal and external against that.

More importantly, there is no evidence that's motivating anything here; this is just evidenceless paranoia. Beyond the lack of actual evidence for any of this, there is also the prescription of treating private industries as government agents. That's just nuts.

[Absaroka]

"... there is no evidence that’s motivating anything here; this is just evidenceless paranoia."

Well, I may be paranoid, but am I paranoid enough?
Zuckerberg on suppressing the laptop story: "“Basically the background here,” Zuckerberg said, “is the FBI I think basically came to us, some folks on our team, and was like ‘Hey, just so you know, you should be on high alert. We thought that there was a lot of Russian propaganda in the 2016 election."

"Big Tech CEOs have been hauled before Congress again and again to be threatened with regulation should they fail to “crack down” on misinformation. Can you really blame Facebook, then, for being quick to acquiesce when the FBI hints it wants more censorship? You can say they were technically free to make their own decision, but being technically free doesn’t mean they were actually free."

Both from FEE

[Absaroka]

And here is Greenwald:

"House Democrats have made no secret of their ultimate goal with this hearing: to exert control over the content on these online platforms. “Industry self-regulation has failed,” they said, and therefore “we must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.” In other words, they intend to use state power to influence and coerce these companies to change which content they do and do not allow to be published."

I know you don't like Greenwald, but distaste isn't an argument. To be convincing, a counterargument will have to address the substance.

[Sarcastr0]

Does that sound coercive to you? That’s not the tone I read in that. Nor of acting as a government agent.

Greenwood offers an opinion - his interpretation. He does not offer an argument or evidence.

[David Nieporent]

Zuckerberg on suppressing the laptop story: ““Basically the background here,” Zuckerberg said, “is the FBI I think basically came to us, some folks on our team, and was like ‘Hey, just so you know, you should be on high alert. We thought that there was a lot of Russian propaganda in the 2016 election.”

To be clear, the FBI had said this to thembefore the laptop story, not about the laptop story. But "You should be on high alert" is not "We're going to arrest you if you do this."

[David Nieporent]

Of course “suggestions” from people in a position to harm you and get away with it are coercive.

And, indeed, in situations where law enforcement came to a business and threatened them with prosecution if they disseminated speech, the courts have slapped that down, because that is coercive. But a legislator complaining about something is not.

[Jonathan Affleck]

I half-understand the fixation on state action doctrine even though the real problem is public forum doctrine.

I try to disentangle public accommodation, public forum, and state action in my petition to SCOTUS for a writ of certiorari.

A challenger to public accommodation abuse should hire an expert like me. I can explain Internet technology and Internet organization.

See "9th Amendment Challenge to Social Medium Abuse".

https://www.gofundme.com/f/9th-amendment-challenge-to-social-medium-abuse

Click on "petition to SCOTUS". I try to explain on p. 40 (bottom) et seq.

[Jonathan Affleck]

A challenger to SOCIAL MEDIUM PLATFORM abuse should hire an expert like me. I can explain Internet technology. Internet organization, and an Internet business model.

When my litigation goes back to district court, I intend to address CRA violation, common carriage violation, state action doctrine violation, and public forum doctrine violation.

[David Nieporent]

I half-understand

You give yourself too much credit.

[JohannesDinkle]

So, maybe this is what they meant by "collusion."

[Michael P]

It's projection all the way down from leftists. They colluded with the Russians to try to set up Trump, they collude with China to sell influence, they collude with big tech to corrupt the electoral process.

[Nelson]

Yes, the only good and decent people in the world are cultural conservatives. Which is why it's perfectly OK to force everyone to accomodate them in all aspects of life.

[Dr. Ed 2]

""Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

---- John Adams

[Michael P]

There are lots of kinds of people who are not leftists, but apparently leftists have gone insane and forgotten that.

[Krayt]

Half their complaints are from my litany. I’m glad somebody is listening.

Speaker Pelosi’s and Representative Schiff’s comments—lack force of law, rendering them incapable of coercing YouTube to do much of anything

This is called regulation by raised eyebrow. If you don’t play ball, something might, you know, get broken.

In this case, section 230, causing their business model to get much more skittish in fear of lawsuits, hence breaking it and the trillion dollar club will calve off hundreds of billions in stock valuation each.

This is a profound evil and grotesque violation of the First Amendment.

To political hacks saying why defend Q-Anon? I am not. But freedom of speech must be fought for on distasteful grounds before it encroaches on something more important.

And, more importantly, say this to yourself in the mirror every morning, fellow lovers of freedom “on both sides.”

The benefit in the First Amendment isn’t that there’s value in every last vibration burping out of the mouth of some yokel. It’s in denying government the greatest golf club in the tyrant’s deluxe bag: censorship.

[Dr. Ed 2]

" If you don’t play ball, something might, you know, get broken."

Which is EXACTLY what the Mafia people do, and hence why I am thinking Civil RICO here.

[Zarniwoop]

And you’d be wrong.

RICO is not a fucking frown emoji. It’s not an exclamation point. It’s not a rhetorical tool to convey you are upset about something. It’s not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It’s overused by idiot plaintiff lawyers, and it’s ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

It’s a good read. Unless you’re butthurt and have a mood disorder. https://www.popehat.com/2016/06/14/lawsplainer-its-not-rico-dammit/

[Currentsitguy]

Remember inoffensive or non-controversial speech needs no protection.

[Nelson]

Remember that the government is constrained by the First Amendment, but no one else is. Politicians sharing their opinions about certain subjects isn't the same as government action.

Trying to lower the threshold for what counts as "the government" is a terrible idea because capitalism works, if you let it. If there is an unmet need, someone will fill that need.

Your complaint seems to be that there doesn't seem to be an appetite for a social media site that caters to your particular flavor of conspiracy theory. That doesn't give you the right to force a company to do what you want them to do, against their interests.

[Dr. Ed 2]

Actually, it does -- and it goes all the way back to the concept that anyone could stay at the inn (if there was room).

It's the concept of common carrier and the very practical issue that even if I could afford it, society doesn't want to have "Ed's Telco" running poles on the other side of the street, with wires crossing everywhere at every intersection.

No, we established common carriers which is what these internet companies are, and I believe that the common carrier model should apply to them.

In an earlier era, the dissidents of that era used telephones and the US Mail to communicate. Can you imagine if Richard Nixon had told Ma Bell to disconnect all the hippies, and the Postmaster to not deliver their mail? No, it isn't even imaginable.

[Randal]

If your ISP were suspending your account so that you couldn't speak on the Internet at all, you might have a point. So you're a Net Neutrality supporter -- that's great.

But you don't have a right to your choice of venue. If Twitter won't have you, that's Twitter's business. Go to 4chan and speak all you want. Twitter is private property, not a street corner.

[Sarcastr0]

The issue, of course, is that you have no evidence of this influence actually occurring. Twitter is just as likely to just not like extremist nonsense on it's site that it holds out for advertisers.

You have a sense of the government that makes you want it to be true, but to convince people beyond yourself, you need more than that.

[Dr. Ed 2]

Hmmm.....

At what point does it become wire fraud with advertisers being defrauded? If they sell advertising on a market which isn't what they claim it is, that in any way is significantly different from what they claim it is, isn't that fraud -- and wire fraud if they do it electronically?

NB this goes beyond censorship -- if advertisers were told that people would see their ads in color while the platform only supported B&W, wouldn't that be fraud?

[BravoCharlieDelta]

>DHS plans to target inaccurate information on “the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”

https://theintercept.com/2022/10/31/social-media-disinformation-dhs/

[Krayt]

Oh ffs dude. The Democratic primary debates had a whole discussion unit where the candidates tried to one-up each other on how to penalize the companies unless they censored harrassment, which was done and applied to their political opposition right before an election.

And in case you missed it, "you should censor harrassment, starting with our political opposition or things might get broken" is exactly the comedy mafia formulation, and all too real "regulation by raised eyebrow" that weasels use so they can stand there and say, "I didn't do nothing, govnuh. We was just playing." as he picks the other guy up and brushes off his dust and straightens his hair.

This was all out in the open and very loud and well-covered. The republicans even tried a fight fire with fire response, to mess with section 230 if the companies did go along with Democratic demands of censorship. Which I also complained about as wrong, lamenting it had come to that.

[Sarcastr0]

Sure, companies just looked at Democratic primaries and that is what determined their decisions. Who needs proof of causality whan you can just declare stuff you FEEL strongly enough?

I know you love your government as mafia bullshit. You’ve been going on about it for years. As someone in government, you have no idea what you’re talking about, letting your ideology author your reality.

This shit you say is real is not, no matter how strong your feelings are. You have no proof. But of course your worldview neatly explains that you need no proof. Dems talking about more regulations is not proof of anything. You’re just unwilling to face an actual reality that challenges your priors and so you make up a bunch of secret influence that, I repeat, you have no proof of.

You can’t just say ‘well people that weren’t in power said something and then didn’t do anything but I’ll bet it was super influential.’ Well you can, but that just makes you an ideologue who doesn’t care about facts.

Welcome to the club around here, I guess. Bob and BCD guy and Ben will love to have you. You can trade racist conspiracy theories!

[Absaroka]

"You can trade racist conspiracy theories!"

I don't see the racist part of Krayt's post.

[Sarcastr0]

Right, but that's the club he's joining if he just continues to insist his take is so true that everything we see and don't see counts as proof.

[Absaroka]

I dunno. I don't think throwing around that insult baselessly is a good look, or effective persuasion. YMMV.

[Sarcastr0]

It was not an insult. It is the road he is traveling on.

I think it is pretty clear from context that I’m not saying he thinks that, but that such types are the association his logic joins him with,

[Nelson]

“This is called regulation by raised eyebrow. If you don’t play ball, something might, you know, get broken.”

So if this sort of behavior counts as government persecution of private speech, what is your assessment of a governor stripping 6 out of 1844 special tax districts of their status because one of those six spoke out against a law the governor championed?

I’m asking for a friend. He’s writing a book about hypocricy.

[BravoCharlieDelta]

That's the legal principle of Goose and Ganders.

[Krayt]

Please read my response above. Well-worn ruts in your nonsentient automata minds are easy to predict, bolstering the theory.

[Formerly Known as Stash]

But if regulation by raised eyebrow is so easy, then deregulation by raised eyebrow should easily counter it. The new GOP House majority has promised to haul in social media to answer for all that censorship. Heck, you've got actual state laws being passed, and both putative leaders of the GOP complaining. So, eyebrow raise, and problem solved! What's the big deal?

[arbitrary aardvark]

This situation has been on my radar for a while. Senate hauls in Zuckerberg to answer questions. Shortly thereafter Zuckerberg imposes censorship policies that would be unconstitutional if directly mandated by government. The senators may be protected by the speech and debate clause, qualified immunity, or absolute immunity, from damages. I have not read the above case. I'm thinking it is saying that as a matter of law you can't get injunctive relief or legal fees, even if you are able to prove what you suspect; some form of entanglement. I don't take cases about censorship unless they are open and shut simple, but this situation has bothered me.

[Nelson]

"even if you are able to prove what you suspect"

Cultural conservatives keep skipping this step. They jump from "Senate hauls in Zuckerberg to answer questions. Shortly thereafter Zuckerberg imposes censorship policies" to "social media companies are government actors".

The fact that content moderation predated Zuckerberg being "hauled in" is, apparently, completely irrelevant.

There is a huge difference between observing that one thing happened after the other and proving the first one caused the second. But not for cultural conservatives.

[Krayt]

Oh ffs dude. This is why they use the mafia formulation. And in other cases talked about around here, government making you stand tall and explain your speech is long considered intimidation.

But hey, it's your side doing the censoring, and intimidation, and warning things like section 230 might get, you know, get broken.

"If they don't censor harrassment, section 230 will get broken."

They censor harrassment.

"Start with harrassing tweets of our opposition right before an election."

Which was done.

Shills: "You can't prove nothin', guvnuh."

[Sarcastr0]

Repeating mafia a whole bunch and then being super annoyed at people who call you out on your lack of actual proof is not actually showing you to be correct. It's showing you to not care about facts over your narrative.

They censor harrassment.
Harassment is illegal. Has been for a long time.

Shills: “You can’t prove nothin’, guvnuh.”
If your theory contains within it the reason why you can't prove your theory, that's a clue you're not in this biz to interface with reality.

[David Nieporent]

Shortly thereafter Zuckerberg imposes censorship policies that would be unconstitutional if directly mandated by government.

Well, no. These policies that the MAGAts are inaccurately complaining about are not new. Facebook et al. have been moderating for years.

[Zarniwoop]

Oh look, the GQP snowflakes are out.

Freedom of speech speech is protected.

Entitlement to reach is not.

[AtR]

In the ineffable words of Justice Potter Stewart, "I know it when I see it ..."

[Noorondoor]

Another, FYGW case.

Much like the piece of crap panel on the 2nd Circuit that stayed Suddaby's PI in bad faith.

[Zarniwoop]

I googled "FYGW" and I still can't tell what you're talking about.

the top two hits:
FYGW : Otjimbingwe - Airport Nav Finder
FYGW F***YeahGorgeousWomen

Consider adjusting your meds.

[Noorondoor]

"Fuck You, Government Wins."

[Zarniwoop]

Ah. So in your case, a synonym for "I made my conclusions before I considered the facts". Thanks, quite helpful!

[David Nieporent]

The government wasn't even a party to the suit!

[Brett Bellmore]

That's certainly the easiest way to win.

[Dr. Ed 2]

The problem with FYGW is that, cumulatively, it destabilizes the G...

It leads to jury nullification and worse.

[Jerry B.]

The Ninth supports Democrats. No news here.

[Brett Bellmore]

As long as they stick to winks and nods, and maybe the occasional explicit threat carefully not recorded, apparently they can get away with it, even if everybody can see what is going on.

[Sarcastr0]

As long as you stick to stuff not being provable, you can claim to be persecuted forever regardless of reality!

[Randal]

Who knew whining was so addictive.

And really it's both sides. They haven't made it into quite the self-fulfilling grievance fantasy that the right has done, but the left is fairly whiny these days too.

[Sarcastr0]

It is something I worry about. But for now at least the left whines about the Dems, and the right whines about the Dems.

Plus of course the whining comes from the leaders on the right, and just randos on the left.

We have a ways to go before there's symmetry.

[Ben_]

Just like anything, they’ll get away with it until they don't. It only takes one successful case to bring their censorship regime down. To keep it going they need decisive victories ever single time.

[Randal]

I wish you success in your $1,000,000 glass of lemonade business.

[Ben_]

How long have you been hearing voices in your head?

[Sarcastr0]

In your scenario this cabal of liberal censors has been succeeding for years and years, but yet are fragile and will one day fall.

Your enemies are many, and strong. But also you are must remain convinced that you can overwhelm them. This requires some work:

"thus by a continuous shifting of rhetorical focus, the enemies are at the same time too strong and too weak."

Congrats on being such a textbook member of this club.

[Ben_]

Shorter: if you think you may somehow prevail over a strong opponent, Sarcastr0 says you may be insane or something.

Everyone besides Sarcastr0 understands that this is the most common understanding by all members of disagreeing factions on every side.

[Sarcastr0]

I don't think most folks think their opposition is a vast and overwhelming foe that is yet weak to but one success away from toppling.

Because that shit is textbook Eco's ur-fascism. And no, Ben, most people don't believe that.

[Ben_]

Nah, you’re just being dumb. Hoping to win is normal. Whatever BS you’re trying to peddle to the contrary is dumb, and you should stop digging yourself deeper and deeper.

[Sarcastr0]

You hope to win. But also posit a vast and powerful foe. That is the combo.

[Ben_]

If the opponent is a complete pushover, there’s no need for hope.

You’re still digging.

[Randal]

I hope & assume y’all and EV saw Elon’s declaration of what he means by free speech absolutism, which (in addition to no speech criticizing him) is:

New Twitter policy is freedom of speech, but not freedom of reach. Negative tweets will be max deboosted. You won’t find the tweet unless you specifically seek it out.

(Lightly edited.) Which is what I’ve been saying and EV as well to some extent. Sure, post your garbage thoughts, but only your friends will see it.

I assume that’s not what y’all were hoping for. You can do better than that on 4chan.

[Ben_]

No, that’s pretty much what everyone wanted.

Some people are complaining about it and calling it a "shadow ban" but the problem with shadow bans was always the deception involved. Platforms were hiding content while pretending not to (much like how the MSM handles news stories that aren’t pro-Democrat). If Twitter is upfront and honest about what they are doing, then it’s not a shadow ban and not really a problem, just a straightforward policy that people can deal with.

We will see if Twitter chooses to lie and deceive and cheat like Democrats do or if they’re honest and arguably consistent.

[Randal]

just a straightforward policy that people can deal with

Really? Ok great! This is what us lefties have been saying all along so, I'm happy you agree!

[Ben_]

"This is what us lefties have been saying all along…"

Yeah, leftist policy is that everyone who says anything leftists don’t like needs to be shut up and punished as much as leftists can get away with. And leftists get to decide what they don’t like whenever, and apply their standards retroactively.

It is, indeed, straightforward. Totalitarianism is ultimately very simple.

[Randal]

Hey, you said it, not me.

[ah....Clem]

Another day, another LOLSuit tossed for being without merit. I don't know how this even got to trial, since the court said

"Even accepting Appellants' allegations of material fact as true and construing them in Appellants' favor, they fail to show ... YouTube's actions to be akin to state action such that the company might be held liable for a First Amendment violation…."

BTW, I've seen this moronic argument (compulsion theory, as it is called by the court) here in the comments over and over. I would hope that those promoting it would read the ruling and adjust their rhetoric accordingly.

[ah....Clem]

Oops, didn't read the actual ruling, only the excerpt above.

The original case was jeeted on a motion to dismiss. This was the ruling on the appeal of the dismissal, so it never went to trial.

As I say, another LOLSuit.

[Shamie Ervin iv]

9th Circuit, not a good forum for the claim. Very much entangled, though, in bed with one another.

[David Nieporent]

Well, when you sign up for an account there's a forum selection clause, so you're always going to end up in the 9th circuit on a claim like this.

[apedad]

Why were the plaintiffs allowed to proceed as Doe?

[ah....Clem]

Perhaps because there are fourteen of them? Maybe their names appear in the original case? Not sure.

Interesting question, and given EV's recent interest in anonymous litigants I'd be surprised if he didn't comment about it if they were actually anonymous.