It appears that we finally have an answer to a question that was being sought in a PragerU lawsuit against YouTube: Is the company a private publisher which can editorialize its content? Or, has it become a public forum by virtue of its wide adoption and, therefore, required to remain politically neutral in accordance with constitutional principles?
As Zerohedge reports, Google has been declared victorious by the 9th Circuit Court of Appeals after they reviewed the initial 2017 ruling by a California federal judge:
On Wednesday, the 9th Circuit Court of Appeals upheld that decision and rejected PragerU’s contention that the site has become a digital-era public forum and its power to moderate content is a threat to fair dissemination of conservative viewpoints on public issues.
“Using private property as a forum for public discourse is nothing new,” writes Circuit Judge M. Margaret McKeown. “Long before the internet, people posted announcements on neighborhood bulletin boards, debated weighty issues in coffee houses, and shouted each other down in community theaters.“
While those methods seem “quaint” compared to the 400 hours of video uploaded to YouTube each day, the underlying issues don’t change.
“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,” writes McKeown, adding that both the First Amendment and Supreme Court precedent present “insurmountable barriers” to PragerU’s argument. –Hollywood Reporter
“Just last year, the Court held 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,” McKeown wrote. “The internet does not alter this state action requirement of the First Amendment.”
Prager’s lawsuit focused on YouTube’s so-called Restricted Mode, which slaps age constraints on content, requires viewers to click to watch, and disallows videos from being embedded on websites. The restrictions are aimed at videos containing alcohol, sexual situations, violence and other mature subjects – such as conservative content apparently. Restricted videos are also demonetized, so creators cannot derive income from third-party advertisers.
Creators can appeal restricted mode.
The 9th Circuit also tossed PragerU’s claim of false advertising.
The Court did issue a somewhat backhanded insult to YouTube’s claims of fairness, at least:
“YouTube’s braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act,” reads the decision. “Lofty but vague statements like ‘everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories’ … are classic, non-actionable opinions or puffery.”
You can read our original coverage of this lawsuit below…
By now, people the world over are well aware of the purge taking place across the Google-owned platform, YouTube. In fact, in 2017 YouTube terminated our own unblemished account here at Activist Post completely without warning and no recourse.
While many people still maintain that this has been a purge of primarily conservative voices, there are also examples of those on the left as well as the center who have also been struck down. This is coupled with demonetization of certain channels that are permitted to remain active, but can’t earn income. People like Dan Dicks at Press for Truth, for example, who had his account with 250,000 subscribers completely shut off. In our opinion, this amounts to demonetizing free speech. The opposite would then also be true: certain speech is financially rewarded. Incidentally, Google will also be taking similar action across web sites through its AdSense program, as they recently announced in a letter to publishers.
This presents a dangerous direction for the open discourse that is essential if we are truly engaged in finding truth in the information we consume.
Nevertheless, YouTube claims it is “more important than ever to be an open platform,” just one day after yet another banning spree.
All of this has called into question what exactly YouTube is. Is it a private corporation operating as a publisher — like Activist Post, for example? If so, they can certainly choose what to do with their own private property. However, there is a certain legal liability that comes with that freedom. Or are they a public forum? If so, they could be violating Section 230 of the Telecommunications Act which requires them to be politically neutral and protects them from legal liability.
Prager University is among those who have had their videos removed and has taken legal action to try and determine once and for all what we are dealing with when it comes to social media companies. In the video below, you can hear directly from Prager’s lawyer, Eric George, who concisely describes the overall issue, and what is at stake in the court case Prager University v. YouTube.
H/T: BrassCheck TV
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