
YouTube can restrict PragerU because it is a private forum, appeals court rules - LinuxBender
https://arstechnica.com/tech-policy/2020/02/first-amendment-doesnt-apply-on-youtube-judges-reject-prageru-lawsuit/
======
gregd
Since the First Amendment acts as a constraint on Government, yeah, it makes
sense that YouTube is under no obligation to protect your freedom of speech.
This isn't a hard concept.

~~~
prostheticvamp
I think it’s a little more nuanced than that, in a way the bill of rights
never had reason to consider.

The freedom of speech prohibits government control of speech in government
(read: public) spaces, in order to conserve public right of criticism of the
government.

These massive platforms, as a matter of business, attempt to replace and own
“the public square.” Google/YouTube, directly or indirectly, controls an
enormous fraction of the public conversation. Their interests, as corporations
constantly lobbying for favorable regulatory treatment, tend to align along
the “appease the government as long as it doesn’t hurt our revenue” axis.

You can with some validity argue that an entity that monopolizes control of
the public square is obligated to protect the rights intrinsic in that square,
all the more so when their interests align with the government’s.

You can, with some validity, argue that a company doesn’t have to have a
monopoly on the public square to be forced to recognize those rights, but as a
continuous function, as they subsume more of the public square they should
undergo increasing burden for conserving the functions of that square.

It used to be “the public square” was a distinct geographic entity. We are now
faced with the fact that it was, maybe, a set of functions attached to that
geographic entity, and it’s those functions that must be protected.

~~~
yk
While I am quite sympathetic to the argument, PragerU would need to disagree
(if we assume they actually believe their videos are true). So they are
American conservatives in the sense that they argue that free markets have the
right outcomes, and more importantly they are originalists, that is they argue
that one should interpret the US constitution as intended when written, not in
a sense, what the principle would tell one when we imagine the US constitution
was written today.

~~~
floren
> more importantly they are orientalists

Probably "originalists", although they may also be orientalists too :)

~~~
yk
Indeed, fixed.

------
neuland
Everyone here is saying 1A doesn't constrain private parties. But that's
missing the heart of PragerU's claim.

Section 230 gives internet platforms immunity for what users post. But at the
same time, platforms want to moderate their content selecting which views are
acceptable and which are not.

These are inherently conflicting things. Section 230 gives special protection
on the assumption that platforms aren't involved in selecting what users post.
But then with the other hand, platforms _are_ selecting what users post via
their content guidelines.

We have common carrier provisions for other communication mediums with no
liability (ex. TV, ISP's). And we have liability for communication mediums
with editorial control (ie. Newspapers, Magazines).

Tech companies are running up the center and making huge profits with an
unfair legal advantage that no other communication medium gets.

Newspapers have to vet their classifieds and editorials. Facebook/YouTube/etc
doesn't. And that is inherently unfair.

So either Congress or the Courts need to fix the law. And it's fair game for
the courts, because the law is not being applied correctly to these platforms,
given their abuses.

~~~
belltaco
This argument has become a meme at this point. EFF debunks it.

[https://www.eff.org/deeplinks/2018/04/no-section-230-does-
no...](https://www.eff.org/deeplinks/2018/04/no-section-230-does-not-require-
platforms-be-neutral)

>These are inherently conflicting things. Section 230 gives special protection
on the assumption that platforms aren't involved in selecting what users post.
But then with the other hand, platforms are selecting what users post via
their content guidelines.

No. If HN removes spam or off topic content or anything else, it does not
automatically mean that it's suddenly liable for someone posting libel and
getting sued over it. That wasn't the intent of the law from the text, and it
was never interpreted that way.

~~~
neuland
EFF's word is not god. I like them, but you make it sound like it's a settled
debate. I'm here to say there's another side and present that viewpoint.

As you many imagine, I agree with Sen. Cruz's line of question from the
article you linked. And I don't think EFF's solution is viable. They suggest
that Facebook should make their policies more transparent and give users more
control over what they see.

But this misses the entire point. Facebook/YouTube/etc are in a monopoly
position. They've proven that they are nakedly partisan, and they have no
intention of acting in good faith.

Platforms should not be allowed to discriminate on any viewpoint or legal
content. They can still provide tools for advertisers to choose what content
their ads appear next to. And they can still provide tools for users to choose
what they see.

But discriminating on some viewpoints and not others is anathema to a public
forum. And you can read Section 230 that way.

~~~
toomanyrichies
If you believe Facebook is a monopoly, then the solution is to break up its
monopoly, not to compel it to behave a certain way in its capacity as a
monopoly.

~~~
jessaustin
In the past, other remedies have been found. For some time, there was a status
called "common carrier". Firms that were considered common carriers certainly
were compelled to behave in certain ways. Now they've paid lobbyists and
lawyers lots of money so that doesn't exist anymore. Still, it isn't
inconceivable that legislators who really valued the public good could create
a "common online service" status to cover this and similar situations.

~~~
belltaco
This doesn't make any sense. The common carrier status still exists. It
doesn't make sense to apply it to particular websites unless Congress acts to
create a new law.

------
yters
Is every commercial content platform free to censor the content however they
want? Can Verizon censor the CNN and Fox News that is delivered by cable? Can
my cell phone carrier censor whatever conversations I have that they don't
like? Can Google skew and eliminate searches they don't agree with?

The former cases seem unlikely, so what is the difference with YouTube?

~~~
vorpalhex
> Can Verizon censor the CNN and Fox News that is delivered by cable?

Yes, and they already set standards for the channels they accept on their
cable platform.

> Can my cell phone carrier censor whatever conversations I have that they
> don't like?

No, your phone carrier is a common carrier.

> Can Google skew and eliminate searches they don't agree with?

Yes, but they might hit issues with advertising guidelines depending on intent

~~~
ng12
The question is why YouTube and Twitter shouldn't be treated as common
carriers. Is it because they're one-to-many instead of one-to-one?

~~~
FireBeyond
Because among other reasons, common carriers were given certain
responsibilities to do so, among the privileges and rights they were given
(legislated rights of way, exclusive access to airwaves etc.) that were deemed
in the public good.

There are no such limitations on YouTube, Twitter, nor are there restrictions
on competition.

------
vumgl
YouTube is really silly to ban PragerU. Although I disagree with maybe 70% of
PragerU's content (I listen to their podcast), I find it very informative of
the conservative POV. It also exposes me to ideas that makes me do my own
further research. I listen to them regularly; there is much worse content on
other places in YouTube.

~~~
shadowgovt
They haven't banned it; their channel is the first search result on YouTube
for the keyword 'PragerU'.

They've flagged it as restricted content so that advertising isn't attached to
it, organizations who specifically ask Google "Don't show me restricted
content" (such as schools) can't reach it from the networks they control, and
auto-recommendation engines are down-sampled on it. Essentially, PragerU is
trying to argue that they should have the right to force YouTube to classify
their content into the same bucket as "baby shark" videos.

It's a very silly argument from PragerU's side.

~~~
DuskStar
And at the same time, Google claiming that prageru is "sensitive content" is
kind of ridiculous too.

~~~
shadowgovt
I believe it falls under "Incendiary or demeaning content"
([https://support.google.com/youtube/answer/7354993?hl=en](https://support.google.com/youtube/answer/7354993?hl=en)).

Edit: other commenters ([https://medium.com/@ephromjosine/okay-prageru-lets-
look-at-w...](https://medium.com/@ephromjosine/okay-prageru-lets-look-at-what-
videos-youtube-restricted-46351812d4ef)) note that it may very well simply
fall under "Mature Subjects" (terror, war, crime, politics).

~~~
DuskStar
All of those "Mature Subjects" sound like things that kids in schools should
_very definitely_ be allowed to access, IMO.

And somehow I'd imagine that CNN's YouTube channel isn't limited in the same
way. (Or Fox News, for that matter)

------
nostromo
While I agree with the ruling, we could use some new laws governing fairness
on the Facebook and Google monopolies.

These two companies have tremendous political power and I don’t think ignoring
that and hoping for the best is a great option for an open society.

The other solution could be to break up FB/Instagram/WhatsApp and
Google/YouTube to inject some competition back into these markets.

~~~
Traster
The problem we have is that whilst lots of people think that there should be
new regulation, no one can agree on what it is and in the mean time you have
to contend with:

* Both partisans pushing for legislation they can use to beat the other side with

* Monopolistic entities such as facebook that intend to use 'regulation' as a moat - writing legislation that only restricts them from doing things they already don't do

* Incompetent legislators who don't understand the issues - since they were born before colour tv was invented, let alone smart phones and the internet.

And that's before even considering the obvious anti-competitive mergers that
have been happening. You talk about breaking up Facebook/Instagram/Whatsapp.
Why were they allowed to be sold in the first place.

------
creaghpatr
Seems like a pretty weak argument they made regarding the first amendment.
Google censorship being considered a "state action"? Yeah right.

A more interesting test case is Google removing footage of elected officials
speaking in a congressional session: [https://www.axios.com/rand-paul-
whistleblower-name-youtube-v...](https://www.axios.com/rand-paul-
whistleblower-name-youtube-video-removed-
fcbeb035-c486-4aa1-a563-44deb10dd0be.html)

~~~
anon73044
It's Google's platform, they're not the stewards of reality and are free to
censor whatever they want.

~~~
creaghpatr
Freedom to censor being a legal right?

~~~
0xffff2
Yes. Free speech is just as much about your right to keep your mouth shut as
it is the right to open it.

------
rkapsoro
I wonder, why did they use a First Amendment claim rather than something to do
with safe harbour considerations (Section 230 of the Communications Decency
Act)?

[https://en.wikipedia.org/wiki/Section_230_of_the_Communicati...](https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act)

My understanding in this area is thin, but from what I understand the big tech
media companies often claim limited or no liability for user generated content
because of the above legal considerations. If so, and they then go on curate
content, that would seem to be allowing them to accept the upside of being a
publisher (a curated experience they can sell to customers and other
stakeholders) without accepting the downside (liability for copyright
infringement, slander and libel, etc.).

I'm not sure why PragerU's legal team didn't push in this area rather than the
admittedly dodgy First Amendment claim.

edit: grammar.

~~~
UncleMeat
This is exactly backwards. 230 does not say "you are safe if you moderate
nothing but expose yourself to trouble if you moderate". It says "if you
moderate, but not perfectly consistently, you are still protected from garbage
on your platform".

~~~
rkapsoro
Haha well that explains that then. Thanks.

------
mech1234
The world is a better world when reasonable opinions are well-considered on
all sides.

Prager U's videos are not hate speech. They are reasonable opinions voiced in
a calm manner.

It is sad that YouTube chooses to de-promote Prager's content. But it is not
illegal.

~~~
UncleMeat
> They are reasonable opinions voiced in a calm manner.

Many of their videos are _wildly_ against academic consensus and also
inflammatory. A classic is the claim that colonialism was actually great for
colonized nations.

You can absolutely voice inflammatory and bogus intellectual material in a
"calm manner". That doesn't change that it is both wrong and inflammatory.

~~~
lanternslight
And blindly following academic consensus is good?

~~~
UncleMeat
You are more likely to hold accurate beliefs about the world by deferring to
experts. Its not a guarantee but it works well. Treating heterodox ideas as
valuable simply by virtue of being heterodox is a much worse epistemological
model than trusting academic consensus.

------
Mathnerd314
A more interesting case would be the federal government pressuring YouTube to
remove some videos, similar to the Wiki leaks payment blockade a few years
back.

------
bgschulman31
As a private company, I don’t believe YouTube should be obligated to be a
platform to host people’s free speech. However, they do advertise themselves
as a public forum so by restricting viewpoints that they disagree with they
really aren’t the public forum they claim to be.

------
teh_klev
Leonard French (an actual lawyer) who runs the Lawful Masses YouTube channel
has quite a good analysis of the failed appeal:

[https://www.youtube.com/watch?v=Ddz5u8Yygys](https://www.youtube.com/watch?v=Ddz5u8Yygys)

------
downerending
The court could not have ruled otherwise. Still, a society where a dominant
corporation has this much power to squelch voices it doesn't like is not what
we ought to hope for.

------
shadowgovt
Or rather, First Amendment applies to YouTube, but they have freedom of the
press; they are not obligated to be a medium for other people to exercise
their freedom of speech.

~~~
ng12
That's the core issue in my mind -- YouTube et al. are publishers when it
benefits them and platforms when it doesn't. They can't simultaneously
identify as press but then not be responsible for user-uploaded content.

~~~
shadowgovt
When they're acting as a hosting medium, they're conduit. When they add
features atop the content they host to curate and surface it or down-signal
it, they're press.

The two functions seem to be acceptable within one organization.

Probably worth noting there's a hefty dose of practicality in the
interpretations as they currently stand. Even this forum, without safe harbor
protection, could be on the hook for user-provided content if someone linked
to child pornography here, yet it seems most users here are in agreement that
Hacker News shouldn't lose safe harbor protections because it has moderators
and community-driven karma.

------
brightball
It’s interesting that the article lists PragerU as a conservative outlet. The
stuff I’ve seen of theirs in the past gave me the opposite impression.

~~~
blaser-waffle
Citation needed -- link me to something that isn't conservative.

~~~
brightball
I’d have to find it. They put out one on the causes of the civil war that went
viral years ago that was so misleading it was embarrassing.

( Civil War history is a hobby of mine because it’s really interesting )

~~~
mrguyorama
The only civil war cause related video of theirs I've seen is them explaining
that, "No, really, the civil war was because states wanted slavery and not
anything about states rights unless you think states should have the right to
allow slavery"

This is an odd position to take since the typical conservative angle is to
pretend slavery wasn't directly called out in like 50% of the seceding state's
documents of secession, and instead claim some nebulous "states rights" claim

~~~
brightball
IIRC they circulated a video along those lines in the wake of the Charleston
church shooting to capitalize on the topic for marketing purposes. It was a
very oversimplified video designed for the quick "FACT! In your face!" social
media argument.

If they are a conservative outlet then that video was specifically designed to
engage non-conservatives so that they could reach them and that would make
sense if that was the mission.

As for the the actual causes, there really is a lot of complexity to it.

The short version:

\- 11 states seceded

\- There were only 4 declarations of causes (SC, Georgia, Miss, Texas)

\- Secession happened slowly over the course of many months, from November to
May

\- The border states of North Carolina, Tennessee, Virginia and Arkansas
seceded in direct response to Lincoln's requisition for troops. The request
bypassed Congress. Virginia legislature in particular took it as an abuse of
executive power.

The viral video put out by Prager quickly listed off the states that seceded
and oversimplified by saying "all the declarations of causes" which insinuated
that each state produced such a declaration. It gave the appearance that the
secessions were something of a quick and unified action.

It hit all of the necessary points for a viral share though. Gave the
appearance of an educational entity delivering a quick video to support the
"everybody in the south was evil" rhetoric.

If you ever really deep dive into the history, there was a lot going on, so
seeing something like that from an "educational" institution immediately put
them on my propaganda radar. I haven't seen much else from them since.

------
godelzilla
Wow a fake university that promotes pseudo-science doesn't understand the
first amendment? Shocker.

------
tombert
Putting on my tinfoil hat on for a bit, I think PragerU did this lawsuit
largely for marketing value, knowing full-well it wouldn't win, since their
actual argument was bizarre and had implications that literally no one would
get behind.

It puts the right-wing entity "PragerU" into the public consciousness, and
they get to wear some badge of "We're the real defenders of free speech!" I'm
sure that Dennis Prager and his ilk will go on Fox News and use this to talk
about how the evil leftist court systems don't believe in open discourse, and
it'll probably end up with more people watching the videos overall.

~~~
shadowgovt
Agreed. PragerU doesn't appear to understand many things, but I think they
understand Streisand Effect.

------
kgwxd
Was that not already well established?

------
ghgdynb1
What a deceptive headline

------
jknoepfler
There are a lot of comments here suggesting that this case is cut-and-dried
obvious. YouTube is a private entity, QED.

This case is more nuanced than that, and part of an ongoing, evolving
understanding of the purview of the First Amendment in the United States.

(NOTE: IANAL, much less a constitutional law scholar, I'm just digging into
some news over coffee as an interested citizen)

Poking around the case materials a little bit:

PragerU lawyers reference a decision (here:
[https://caselaw.findlaw.com/us-9th-
circuit/1332974.html](https://caselaw.findlaw.com/us-9th-
circuit/1332974.html)) in which a corporate entity tried to remove street
preachers from grounds (the Rose Garden) partially leased from a public entity
(the City of Portland). The court found in favor of the preachers, holding
that the corporation effectively was a state actor over which the court had
jurisdiction.

If you read the reasoning in that case, you'll find reference to other cases
in which the courts tried (unsuccessfully) to hammer down what counts as a
state actor. From a very cursory reading there's substantial jurisprudential
churn around the notion of "state actor" \- there are commonly accepted
"tests" (which are sort of like thought experiments in philosophy), a
substantial amount of common sense, and a large margin of error involved in
determining whether or not a private entity is behaving in a way that might
run afoul of restrictions placed on public actors.

It's clear that there are cases where publicly owned resources are leased to
private entities, and that "speech" happens over these resources (broadcast
frequencies, ISP rights, publicly-owned domains, etc.). There certainly are
private actors in this space that do fall under the purview of the First
Ammendment.

Again, I don't think YouTube is such an entity - and the courts agree - but
this is a space where limits are evolving and being tested all the time.

edit:

I enjoy the court's somewhat punchy decision:

    
    
      Both sides say that the sky will fall if we do not adopt 
      their position. PragerU prophesizes living under the tyranny 
      of big-tech, possessing the power to censor any speech it 
      does not like. YouTube and several amicus curiae, on the 
      other hand, foretell the undoing of the Internet if online 
      speech is regulated. While these arguments have interesting 
      and important roles to play in policy discussions concerning 
      the future of the Internet, they do not figure into our 
      straightforward application of the First Amendment. Because 
      the state action doctrine precludes constitutional scrutiny 
      of YouTube's content moderation pursuant to its Terms of 
      Service and Community Guidelines, we affirm the district 
      court's dismissal of PragerU's First Amendment claim.

~~~
jknoepfler
why on earth was this downvoted? did I incorrectly report something? I'm
actually confused. was the observation that the case represents a sample of a
complicated and interesting legal landscape in the United States of America
incorrect, insulting, or what?

~~~
Bendingo
I have no idea why you were downvoted.

The whole concept of down/up votes is broken - I am a grown-up and quite
capable of critical thinking and can form my own opinion of other people's
view.

Furthermore, in this current era of group-think and censorship, comments (like
yours) that are downvoted are usually the the most interesting.

On the plus side, the greying-out of such comments just makes it easier to
find them among a sea of conformance.

Sincere thanks to all downvoters.

------
wnevets
am I the only one who finds the irony of a right wing org wanting the
government to force a private company to create a safe space for their content
funny?

------
gfodor
mark my words: this will get to the supreme court, and youtube will lose.
sites like youtube, facebook, twitter ultimately need to be recognized as some
kind of semi-public forum. once they are, the rules change.

------
throwGuardian
Does anyone else find it ironic that Google (rightly) led the net neutrality
fight against ISPs/carriers, with one of the complaints being potential
censorship from these entities.

And then they turn around and censor conservative content disproportionately,
with no self awareness on perceptions of bias that it creates.

It doesn't matter if section 203 requires neutrality, a giant megacorp with a
monopoly on internet video needs to stay neutral. We cannot have a "rules for
thee, not for me" attitude from Google. If they won't stay neutral, they need
to be regulated.

Section 203 needs to be scrapped, and something that guarantees 1A, while
shielding platforms from culpability, needs to emerge.

~~~
tzs
> Does anyone else find it ironic that Google (rightly) led the net neutrality
> fight against ISPs/carriers, with one of the complaints being potential
> censorship from these entities.

No, because to use a transportation analogy ISPs are like buses or light rail,
while websites are like the stores and offices and gathering places that you
take the buses or light rail too.

There would be nothing ironic about believing that a city's bus or light rail
systems should be required to accept all passengers who have the fare and are
not an actual danger to other passengers, while simultaneously believing that
a private store or office that one might reach by bus does not have to accept
everyone.

~~~
throwGuardian
Why does Google feel the need to censor _any_ conservative content? The right
to censor doesn't have to culminate in actual censorship without cause.

Double speak is on full display here: self certified ethical, moral, freedom
loving, anti authoritarians are the first to indulge in thought policing.

Moreover, this kind of censorship plays out on the daily across tech, while
the companies involved lie about not being biased, with a straight face. It's
all too Orwellian

