US 9th Circuit rules First Amendment does not apply to YouTube and other online forums

[Cal Jeffrey]

Big quote: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." — First Amendment, US Constitution

It is a common misconception that the First Amendment of the US Constitution protects citizen’s right to say anything thing they want anywhere they want. However, its purpose and language are to prevent the government from restricting speech. The First Amendment does not apply to private businesses such as restaurants and banks or online platforms like YouTube.

The 9th US Circuit Court of Appeals has once again upheld a decision by lower courts to dismiss a lawsuit brought by Prager University against Google. According to the ruling, internet platforms are not subject to the First Amendment.

Conservative talk show host Dennis Prager, who runs the nonprofit PragerU, claimed that YouTube set a large number of his videos ranging from abortion to gun rights as “restricted” and demonetized them. He asserted that this was a violation of his freedom of speech. The courts disagreed.

In a unanimous 3-0 decision, the 9th Circuit said that despite YouTube’s “ubiquity” and its public accessibility, it is not a “state actor.”

"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," wrote Circuit Judge Margaret McKeown. "PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent [Manhattan Cmty. Access Corp. v. Halleck]."

The court also dismissed an allegation of false advertisement. Prager asserted that YouTube’s claims about free speech such as “everyone deserves to have a voice, and [the] world is a better place when we listen, share, and build community through our stories” was misrepresentative of its policies. McKeown said that these statements were not advertisements, but “merely opinions.”

“[Our products] are not politically biased,” said Google spokesman Farshad Shadloo. “[This decision] vindicates important legal principles that allow us to provide different choices and settings to users.”

PragerU attorney Peter Obstler told Reuters that the Seattle appeals court’s decision was “very limited” and that it was only “based on the facts alleged in this case.” Obstler was referring to another related PragerU’s lawsuit against Google in California, where state laws are more favorable to the plaintiff. However, it is worth mentioning that it was San Jose’s US District Court that made the initial decision to dismiss.

Former US Solicitor General Donald Verrilli said courts have remained consistent that privately-held internet forums do not qualify as state actors. He asserts that if they did, the internet would be a very different place, “chock-full of sexually explicit content, violent imagery, hate speech, and expression aimed at demeaning, disturbing, and distressing others.”

Image credit: Michael Schwartz via Getty Images

Permalink to story.

https://www.techspot.com/news/84187-us-9th-circuit-rules-first-amendment-does-not.html

 

[gamerk2]

"Former US Solicitor General Donald Verrilli said courts have remained consistent that privately-held internet forums do not qualify as state actors. He asserts that if they did, the internet would be a very different place, “chock-full of sexually explicit content, violent imagery, hate speech, and expression aimed at demeaning, disturbing, and distressing others.”"

He forgot his /sarcasm tag.

 

[CharmsD]

Good.. When freedom of speech is imperative make your own private billboard/internet.

 

[pcnthuziast]

Duh?

 

[Evernessince]

Duh?

A surprising number of people think Freedom of Speech applies to free enterprise.

 

[CharmsD]

A surprising number of people think Freedom of Speech applies to free enterprise.

Isn't that what the SC just ruled? "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" .

Youtube practices free enterpris-ing publicly - as a free service for users, as such it enjoys the priviledge of SHUTTING UP certain 'entities'.

 

[Evernessince]

Isn't that what the SC just ruled? "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" .

Youtube practices free enterpris-ing publicly - as a free service for users, as such it enjoys the priviledge of SHUTTING UP certain 'entities'.

Yep. I don't think the court could rule any other way. If they did, that would open up every company to first amendment lawsuits.

 

[wiyosaya]

It will be interesting to see if Prager appeals to SCOTUS as this was a district court, one of which there will be complaints that it has a liberal bias, an appeal to SCOTUS seems the next logical step. As I see it, his lawyers would probably discourage him from doing so if they have any sense.

Yep. I don't think the court could rule any other way. If they did, that would open up every company to first amendment lawsuits.

While I understand why you say that, I am not so sure that is, necessarily, the over-riding issue. SCOTUS has ruled that there are limits to the first amendment. In at least one ruling, SCOTUS specifically states that the first amendment was written to foster the exchange of ideas, and following along on this course, SCOTUS has also ruled that things like inciting violence are not necessary to the free exchange of ideas and are, therefore, not protected under first amendment rights.

There are those out there who think that the first amendment means saying whatever you want whenever you want in any context, and that is not consistent with SCOTUS rulings. I really do not know what Prager's videos entail, however, if any of them crosses that boundary into those areas that SCOTUS ruled are not parts of first amendment rights, such as inciting violence, YouTube could find itself in criminal court up against a district or US attorney.

Unfortunately, this issue seems to me to be yet another one of those talking points that are frequently cited to get others on board to a narrative of "our _put your favorite issue here_ are under attack" even though that narrative has no basis in a clear understanding of the underlying issues.

 

[Evernessince]

It will be interesting to see if Prager appeals to SCOTUS as this was a district court, one of which there will be complaints that it has a liberal bias, an appeal to SCOTUS seems the next logical step. As I see it, his lawyers would probably discourage him from doing so if they have any sense.


While I understand why you say that, I am not so sure that is, necessarily, the over-riding issue. SCOTUS has ruled that there are limits to the first amendment. In at least one ruling, SCOTUS specifically states that the first amendment was written to foster the exchange of ideas, and following along on this course, SCOTUS has also ruled that things like inciting violence are not necessary to the free exchange of ideas and are, therefore, not protected under first amendment rights.

There are those out there who think that the first amendment means saying whatever you want whenever you want in any context, and that is not consistent with SCOTUS rulings. I really do not know what Prager's videos entail, however, if any of them crosses that boundary into those areas that SCOTUS ruled are not parts of first amendment rights, such as inciting violence, YouTube could find itself in criminal court up against a district or US attorney.

Unfortunately, this issue seems to me to be yet another one of those talking points that are frequently cited to get others on board to a narrative of "our _put your favorite issue here_ are under attack" even though that narrative has no basis in a clear understanding of the underlying issues.

Hm, I going to have to do some research on supreme court rulings regarding the 1st. I can't say I'm awfully familiar with what rulings it's made in this regard.

 

[wiyosaya]

Hm, I going to have to do some research on supreme court rulings regarding the 1st. I can't say I'm awfully familiar with what rulings it's made in this regard.

I am not an expert or a lawyer by any means, however, prompted by other, similar articles here on TS, I have done some research. I did not uncover that many rulings, however, to me anyway, they sounded quite clear.

 

[captaincranky]

I am not an expert or a lawyer by any means, however, prompted by other, similar articles here on TS, I have done some research. I did not uncover that many rulings, however, to me anyway, they sounded quite clear.

Allen Dershowitz wrote on this topic, using the premise that in spite of the 1st amendment, you can't walk into a theater and yell "fire", when there is none.

The Atlantic | January 1989 | Shouting "Fire!" | Dershowitz

Justice Oliver Wendall Holmes's classic example of unprotected free speech--falsely shouting 'Fire!' in a crowded theater--has been invoked so often, by so many people, in such diverse contexts that it has become part of our national folk language.

www.theatlantic.com

 

[psycros]

Prager is just a conservative commentator. Google and most of Silicon Valley are fundamentally liberal. Almost every popular channel that leans right has been demonetized. Its pure political bias and censorship, nothing more, nothing less. The 9th circuit court is infamous for its own liberal bias and has walked over the Constitution more times than I can count. Its the left's favorite WMD.

 

[wiyosaya]

Prager is just a conservative commentator. Google and most of Silicon Valley are fundamentally liberal. Almost every popular channel that leans right has been demonetized. Its pure political bias and censorship, nothing more, nothing less. The 9th circuit court is infamous for its own liberal bias and has walked over the Constitution more times than I can count. Its the left's favorite WMD.

And you win the prize!

 

[Yynxs]

It will be interesting to see if Prager appeals to SCOTUS as this was a district court, one of which there will be complaints that it has a liberal bias, an appeal to SCOTUS seems the next logical step. As I see it, his lawyers would probably discourage him from doing so if they have any sense.


There are those out there who think that the first amendment means saying whatever you want whenever you want in any context, and that is not consistent with SCOTUS rulings. I really do not know what Prager's videos entail, however, if any of them crosses that boundary into those areas that SCOTUS ruled are not parts of first amendment rights, such as inciting violence, YouTube could find itself in criminal court up against a district or US attorney.

Unfortunately, this issue seems to me to be yet another one of those talking points that are frequently cited to get others on board to a narrative of "our _put your favorite issue here_ are under attack" even though that narrative has no basis in a clear understanding of the underlying issues.

Then perhaps you should look at Prager U's videos. They're not hidden from adults. I've found a tremendous number of people that 'opine' about Google, et al., without actually investigating. There is tremendous suppression of informed free speech by Google's devs as previous articles here have shown.

 

[wiyosaya]

Then perhaps you should look at Prager U's videos. They're not hidden from adults. I've found a tremendous number of people that 'opine' about Google, et al., without actually investigating. There is tremendous suppression of informed free speech by Google's devs as previous articles here have shown.

I have no interest in Prager and his videos; I have much better things to spend my time on.

That said, my opinion of gagme, if you have not gotten it yet, is that they are a plague unleashed on this world. They will addict anyone and everyone they can to their services and their leadership has been caught saying as much. They are legal drug pushers who could give a crap about anything other than money. While I will occasionally watch a video here and there, I block all their advertising and cookies.

I will retain an interest in this case if, and only if, Prager appeals to SCOTUS. If Prager doesn't like gagme's practices, he is free to form his own website, video on demand, whatever, to proselytize his viewpoint.

What I think is that there are plenty of people out there who pretend that private industry is trampling on their rights. The thing is is that the 1st amendment says quite explicitly

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The operative word is "Congress" meaning government. Though I detest gagme for what I see as the vile principles they represent, it might be said that gagme is exercising their 1st amendment rights in refusing to allow free access to his videos.

Also note the words "peaceably assemble"

People think gagme is trampling on free speech. I say who gives a crap? There are plenty of other venues out there for people to express what they want to express. If you don't like gagme, don't have anything to do with them. It is a simple solution that I do not understand why people don't get that.

People like Prager opine that their rights, a word that I will interpret as "power", is being taken away from them by gagme. The way that I see it is that Prager, and others who hold a similar opinion, GAVE their power to gagme, and have basically said do with our power what you will - since they signed gagme's use agreement. The way I see it, that is the problem of the people who freely give their power to gagme and no one else.

gagme is not a government entity, and as all levels of the courts involved in this case, not just liberal leaning 9th circuit, have ruled, gagme is a private forum free to set their own limits on what content they allow on their site.

 

[Axle Greese]

If I create an internet service then I set the terms and conditions of its use, not PragerU.

 

[CharmsD]

gagme is not a government entity, and as all levels of the courts involved in this case, not just liberal leaning 9th circuit, have ruled, gagme is a private forum free to set their own limits on what content they allow on their site.

I understand avoiding using the company name, if you mean what you say the message should identify it by it's rotten name, which I believe is GOOGLE.

GOOGLE benefits from that obfuscation, do you really want to give them that?

 

[kmo911]

We needing a offline now comment. and a online when you are at work. two youtube accounts. one for work one for work. private life should not affect when you are online at work.
and put in a adblocker and a eraser program ccleaner antispyware searcher to get rid of all those bad cookies. tracing cookies are godd and bad.. if he are at work and using twitter he mus have a accont just for those ohurs and can make backup of what his been doing that day .

and next day he starts fresh computer mac win linuix and so on. a password logon maker sim card and so on. just put the phone on work and private and go have fun.
with live dvd unbutu in the cd dvd bdr slide and out when its done. EASY
that being a senator should put the protection of home and work high.
when he gets home it is family computer but with eraser funchion enabled and a full reset and offline bacup.
and write a contract that say home work should not be work day and so like.
president at work but home he is private.
and stop spreading bad tings about senate senators president. it just LOL to show on tv.
WE DONT WANT TO KNOW YOURE PRIVATE LIFE. WE JUST want to be left alone as PRIvate exit mr bean. now to all out the/r begin/g us(e)ing sos flags for talking with eatch other.
"do I like mc gyver"

 

[gamerk2]

Prager is just a conservative commentator. Google and most of Silicon Valley are fundamentally liberal. Almost every popular channel that leans right has been demonetized. Its pure political bias and censorship, nothing more, nothing less. The 9th circuit court is infamous for its own liberal bias and has walked over the Constitution more times than I can count. Its the left's favorite WMD.

Uhh...no. It's more that the right has a completely perverted view of the Constitution and the protections that it does (and does not) offer.

Regardless, this is one of those cases that is obvious to pretty much everyone. It's *very* well understood the protections offered in the Constitution apply *only* to laws passed by the Federal government. Private industry is free to restrict those rights so long as you are under their domain in whatever way they so choose, so long as they are consistent with laws passed by Congress. As the Internet is nothing more then a series of privately owned websites networked together, you do "not" have the right to free speech, and you do "not" have the right to spout whatever nonsense you want. Your rights are limited by each websites TOS, period.

 

[QuantumPhysics]

"The First Amendment does not apply to private businesses such as restaurants and banks or online platforms like YouTube."

THANK YOU - someone read the acctual constitution!!!

As a user of these social media platforms, (a Youtube partner) I understand that these are not simple "utilities" and they aren't "public".

You don't have a right to say whatever you want on my channel just as much as I don't have a right to say whatever I want on Youtube.

That's why I use that Block and Ignore button when people annoy me.

Let the free market work.

If people think my channel is bad then my 65,000 subs will leave.

The Free Market is ALWAYS right.

That said: Apple should absolutely REFUSE to let the Europeans force them into USB C or battery redesigns.

If Europe can't handle it then stop selling Europe iPhones.

These are constitutional issues.

Freedom of speech, expression and right to associate with entities who uphold my values.

 

[Theinsanegamer]

A surprising number of people think Freedom of Speech applies to free enterprise.

Well, Trump is forced to not block people on twitter, a free enterprise, and these same people are OK with that. Hypocricy is alive and well.

It will be hilarious when the precious snowflakes that push for censorship start having their content censored because advertiser revenue. It's gonna be funny.

"Yeah, get those bigoted NAZIs that support DRUMPF off of youtube, SHUT THEM DOWN! BASH THE FASH! WAIT!, dont get rid of me, I'm a good transgirl, I didnt do nothing!"

The salt is going to give google heart disease.

 

[audioman83]

Prager is just a conservative commentator. Google and most of Silicon Valley are fundamentally liberal. Almost every popular channel that leans right has been demonetized. Its pure political bias and censorship, nothing more, nothing less. The 9th circuit court is infamous for its own liberal bias and has walked over the Constitution more times than I can count. Its the left's favorite WMD.

I'm not clear on your meaning. And like Prager, I love clarity. Is your comment pointing out the historical bias of the 9th circuit meant to highlight that the court is wrong on this case?

 

[Yynxs]

I have no interest in Prager and his videos; I have much better things to spend my time on.

Maybe you do. You're basically stating, I trust Google to make the right decision and the courts and the Constitution will bear out my right to be ignorant of the protestors.

 

[Capaill]

Well, Trump is forced to not block people on twitter, a free enterprise, and these same people are OK with that. Hypocricy is alive and well.

The problem there is that Trump chooses to use Twitter to announce national policies. So he should not be free to block who he wants, as long as he persists in using Twitter in such an official capacity. He forced Twitter to make an exception for him. If he only used Twitter to talk with fellow golfers about the courses he visits and the scores he has, then normal Twitter rules would apply.

 

[Uncle Al]

This could be the first brick in the wall that leads to Fakebook's demise. Once people start getting successfully sued as well as Fakebook getting sued for supporting them, their revenue stream will all but dry up completely as their membership plummets ..... no doubt that Zuck is going to look for a way to remain a business while becoming a public forum ...... time will tell.