The 9th Circuit Court of Appeals has unanimously ruled that the First Amendment does not cover private entities like YouTube and other tech platforms. The court ruled against PragerU whose content had been censored on the video platform.
YouTube is a private forum and therefore not subject to free-speech requirements under the First Amendment, a US appeals court ruled today. “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.”
The court stated the obvious; the First Amendment only applies to government censorship and does not cover private companies.
“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.
Prager U tried to sell the judges the idea that YouTube was a “state actor” because they regulated speech in a “public forum.”
It didn’t work. The judges pointed to a Supreme Court case from last year where the plaintiff argued that “a private entity becomes a state actor through its ‘operation’ of the private property as ‘a public forum for speech.'” The Supreme Court shot that argument down.
The Supreme Court in that case found that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”
“If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum,” the Supreme Court decision last year continued.
YouTube basically destroyed PragerU by banning their videos and demonetizing their content. Did they deserve it? Slate called the lawsuit”preposterous” and the content “hateful claptrap.”
Dennis Prager, founder of the right-wing propaganda outlet Prager University, has a First Amendment right to lie about climate change, deny that straight people get HIV, viciously vilify Muslims, and declare that “men get turned on by any sight of female flesh.” He does not, however, have a right to upload these claims to YouTube and make money off them, the 9th U.S. Circuit Court of Appeals ruled on Wednesday.
Note that most of those issues are matters of opinion. YouTube has taken it upon itself to regulate opinions on its platform, censoring content with which many might disagree. The same could be said for Twitter, Instagram, and other social media sites that are owned and managed by liberals. Some opinions by conservatives are apparently censorable.
You can’t force a private company to publish or promote content with which it disagrees. While it harms conservatives, it also protects private companies whose employees spout leftist nonsense both in and out of the office. They can be fired for promoting those opinions if management disagrees with them.
The answer to YouTube is for the right to start their own social media companies. It won’t happen and even if it does, no one can compete with a Google platform. But in the free marketplace of ideas, that’s all that can be done.