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First Amendment Doesn't Apply On YouTube; Judges Reject PragerU Lawsuit (arstechnica.com) 474

An anonymous reader quotes a report from Ars Technica: YouTube is a private forum and therefore not subject to free-speech requirements under the First Amendment, a US appeals court ruled today (PDF). "Despite YouTube's ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment," the court said. PragerU, a conservative media company, sued YouTube in October 2017, claiming the Google-owned video site "unlawfully censor[ed] its educational videos and discriminat[ed] against its right to freedom of speech."

PragerU said YouTube reduced its viewership and revenue with "arbitrary and capricious use of 'restricted mode' and 'demonetization' viewer restriction filters." PragerU claimed it was targeted by YouTube because of its "political identity and viewpoint as a non-profit that espouses conservative views on current and historical events." But a US District Court judge dismissed PragerU's lawsuit against Google and YouTube, and a three-judge panel at the US Court of Appeals for the Ninth Circuit upheld that dismissal in a unanimous ruling today. "PragerU's claim that YouTube censored PragerU's speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government -- not a private party -- from abridging speech," judges wrote.

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First Amendment Doesn't Apply On YouTube; Judges Reject PragerU Lawsuit

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  • Duh (Score:5, Insightful)

    by mr.dreadful ( 758768 ) on Wednesday February 26, 2020 @05:51PM (#59770850)
    Im astonished a lawyer would actually take this case. I understand the general public being confused, but a competent lawyer should have known the difference.
    • My understanding is that they argued because it was on the internet somehow YouTube became a public actor and therefore subject to the 1st Amendment.

      • That's almost as bad as the people arguing "well, it's on the Internet so that means it's been released to the public domain and I can use it in any way I want."

    • I think it's quite possible they will be regulated like a utility at some point. Evidently we are not at that point.
    • You are astonished that a lawyer would work for money? It's what they do, and there are many lawyers.

      As long as PragerU will pay, they can certainly find lawyers who will work for them.
    • They should have put the effort they put into their videos and arguments made into the real world.

    • If Prager U plonked down money up front what lawyer would turn that down? Unless they work strictly on contingency they get paid either way. If you can get a good enough cut of a big enough award then even slim odds can be financially viable, especially if you’ve got nothing better to do. Getting half of any multi-million dollar judgement or settlement you can negotiate is more money than most people will earn in a lifetime. Probably beats the hell out of dealing with tree law or dog bites as well and
      • by sconeu ( 64226 )

        If Prager U plonked down money up front what lawyer would turn that down?

        An ethical lawyer should have told them they had a snowball's chance in hell, and warned them they would almost certainly lose. If PU wanted to continue, then fine.

    • Actually, there is a case, it just isn't an easy one. Contrary to popular belief, private actors CAN be held to need to uphold the 1st amendment. The issue is they need to be shown to be large enough, or powerful enough, to be required to do so. The goto case was about a private city essentially that forbid door to door canvasing on the grounds the entire area was their private property, but this failed as they were too powerful to the control of the 1st amendment in that area. Here it is a matter if Yo
  • demonetization (Score:5, Insightful)

    by OrangeTide ( 124937 ) on Wednesday February 26, 2020 @05:54PM (#59770870) Homepage Journal

    Oh no, how will I ever Free speech if I'm not paid for it?!

    • You seem to be conveniently ignoring the part about restricted mode, which makes it very hard for anyone to find the video and reduces the number of views to practically nothing.

      Free speech has little value if nobody can hear what you're saying.

      • Re:demonetization (Score:5, Informative)

        by AK Marc ( 707885 ) on Wednesday February 26, 2020 @06:27PM (#59771092)
        If they uploaded a video, and sent the link to that video to all of their Twits over the Twatter, would that video exist at that link when someone clicked on it?

        Yes. They weren't promoted within YouTube, but their links weren't taken down or scrambled such that content was "hidden" in any way.

        YouTube's failure to promote them isn't censoring them in any way.

        Show some proof that people who followed their channel were unable to see recent uploads if they went to the channel page. Or that subscribers who selected "notify" weren't notified, or that Twits were unable to click links in Twats, then there could be some claim of censorship.

        This is like suing a Ford dealer for not selling them a Corvette. Your stupidity isn't a tort.



        Bonus Chutzpah points for PragerU taking the public position that businesses should be able to refuse service to anyone, while suing if someone doesn't deal with them in the exact manner they desire.
      • The First Amendment applies to the government. It doesn't apply to private property. No matter how many ways you try to argue it, you can't put a sign on my front lawn without my consent, and if I let you do it, my contract with you can stipulate any conditions I so desire, and if you don't like those conditions, you can go to someone else or plant in on your front lawn.

  • by SmaryJerry ( 2759091 ) on Wednesday February 26, 2020 @06:04PM (#59770936)
    Nearly everyone agrees certain things should be banned or blocked from YouTube. Drawing that line has been left up to the companies running them because they are creating that community. If it were a free speech question they wouldn't block anything at all and so it isn't a free speech question. I do think YouTube's rules are misapplied and enforced arbitrarily by not only their algorithms but also their employees/contractors. The better way to enforce this kind of bad acting by YouTube is to apply new regulations on employee/employer relationships. similar to the way California is trying (has?) enforced that on Uber with their drivers, YouTube has a responsibility to the people that earn money there. At the drop of a hat YouTube demonetizes entire swathes of it's platform and a person that made $10,000 per video can go to zero and with no good or specific reason given. There needs to be some kind of employee protection program for those making money on the platform so their lives aren't throw into disarray on a whim. Even the biggest YouTuber's get hundreds of thousands of dollars worth of damages caused by demonetization and even they seem unable to fight back at all. The best they can do is post on Twitter with their complaints and hope YouTube doesn't want the bad press. This, along with the copyright claiming issues, is one of the big reasons YouTube's annual Rewind video gets disliked into oblivion.
    • by nwaack ( 3482871 )

      Nearly everyone agrees certain things should be banned or blocked from YouTube.

      Yes, there are clearly horrible things that shouldn't be allowed on YouTube...videos that makes progressives uncomfortable are definitely not one of them.

    • Youtube has a far greater fiduciary responsibility to Alphabet's shareholders, and those shareholders have made it pretty damned clear that Youtube cannot function like some Wild West, that to allow certain kinds of content materially harms their investment.

      Welcome to capitalism. The owners (read: the shareholders) get to decide what happens on their property, and if you don't like their rules, you can get stuffed.

    • by Kjella ( 173770 )

      YouTube has a responsibility to the people that earn money there. At the drop of a hat YouTube demonetizes entire swathes of it's platform and a person that made $10,000 per video can go to zero and with no good or specific reason given. There needs to be some kind of employee protection program for those making money on the platform so their lives aren't throw into disarray on a whim.

      That's not going to happen. Even the Supreme Court of California said [wikipedia.org]:

      [A]n employer may terminate its employees at will, for any or no reason ... the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment ... The mere existence of an employment relationship affords no expectation, protectible [sic] by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms.

      Now YouTube creators aren't actually employed by YouTube, as they have very broad creative control and set their own hours so I don't think they should be either. But even if they were, that'd only give them a few employment benefits and minimum wage they still could be given the boot at any time. At least in the US.

  • Nope (Score:2, Insightful)

    by sexconker ( 1179573 )

    Ninth Circuit

    That's all you need to read.

    SCOTUS will decide this.

  • by Chris Mattern ( 191822 ) on Wednesday February 26, 2020 @06:07PM (#59770958)

    Of course the First Amendment applies on YouTube, and this ruling doesn't change that. The US Government cannot arbitrarily censor it.

    The First Amendment has nothing to do with YouTube or Alphabet's decisions about what can be shown on the channel, because Alphabet is a private owner of the channel. Freedom of the press doesn't mean you automatically get a printing press for free.

    • Re: (Score:3, Insightful)

      by eaglesrule ( 4607947 )

      Freedom of the press doesn't mean you automatically get a printing press for free.

      "getting a printing press for free" is a complete red herring. Youtube is altering the deal, for content Prageru provides, whereas other similar content providers with different political stance are not receiving the same kind of treatment.

      But I guess it's fine for the Overton window to dictated to the rest of the country by vertical monopolies based in San Francisco, because it's not me that they are censoring right now.

      We're talking about something as vital to our democracy as free speech, with gatekeepe

  • Fuck PragerU (Score:5, Insightful)

    by AK Marc ( 707885 ) on Wednesday February 26, 2020 @06:19PM (#59771042)
    PragerU has supported the "right" of business owners to reject service to people they don't like.

    Then they sue when someone refuses to treat them the way they want, because the business owner doesn't like them.

    They can go pound sand. They were treated as they wish to be treated, and see no hypocrisy in their stance of bigotry and discrimination.

    Also note, YouTube didn't reject them. YouTube just didn't promote them. If they uploaded a video and sent the link to that to 1,000,000 people, the 2 who care could still click on that link, and the video was there. YouTube gave them free hosting, and they sued YouTube. They didn't sue for deletion of content (something that has happened to some gun sites), but "demonetization" and lack of promotion of their content.
    • I agree with the parent. I watched several of their videos when they were first getting started, and found their messages to be inaccurate and disgusting.

      Since then, whenever I see one of their video titles, I *always* exercise the control to stop seeing it, labeling it "inappropriate". I wonder whether other people do the same thing? I understand that I cannot (and truth be told, should not ever be able to) affect what others see directly. But I absolutely insist on not being personally bombarded by those

  • Two Sides (Score:2, Interesting)

    by Stolovaya ( 1019922 )

    This was never going to win based on the First Amendment. The First Amendment is merely about the US government not being able to curb people's right to free expression. Kind of interesting that they'd waste their money going from that angle.

    On the other, YouTube is a giant platform and almost a monopoly for video content. When you're not able to post on there, your reach is severely hampered. It'd kinda be like being only able to speak freely in small, specific spots in public because all the rest of the

    • It just seems funny that there are people that think that censorship of this kind can or will never be turned on them. That's some grade A arrogance.
  • by peppepz ( 1311345 ) on Wednesday February 26, 2020 @07:19PM (#59771326)
    Enough of this political correctness. PragerU is not a "conservative media company". It's an extreme right disinformation channel, financed by big industries to spread hate and false information to promote their interests. They lie already in the very name of their channel, as they pretend to be a "university" when in fact they disseminate unscientific propaganda.

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