U.S. court rules YouTube does not illegally censor conservative content

The recent decision of the American Ninth Circuit judges that YouTube has not illegally censored conservative content on its platform has been largely overlooked, despite the major ramifications it has for freedom of speech online and  therefore democracy.

The facts of the case are as follows: a non-profit education company, Prager University, produces highly controversial conservative videos utilising Google-owned YouTube to share its content. YouTube in an attempt to moderate PragerU’s use of the platform demonetised their videos, and classified dozens to ‘Restricted Access’(Restricted Access restricts possibly mature or objectionable content to adults only, a setting in YouTube’s menu). According to the facts, Prager University then unsuccessfully appealed this through YouTube’s internal review process.  They then deemed this a violation of their First Amendment Rights, the Lanham Act and their internal policy, and pursued ‘declaratory relief based on Defendant’s alleged violation of the First Amendment of the US constitution.’

[Prager University] deemed this a violation of their First Amendment Rights, the Lanham Act and [Youtube’s] internal policy.

The ruling stated that regardless of the veracity of Prager University’s allegations of discrimination, YouTube did not constitute a public forum under federal law, and is therefore not subject to First Amendment scrutiny. In other words, “the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state” (Hudgens v. NLRB, 1976).

The second issue before the court was the allegation of false advertising under the Lanham Act. Although YouTube’s commitments to freedom of expression were encoded in their values statements, this does not qualify as either ‘advertising or promotion’ and is thus not in breach of the Lanham Act. The act expressly prohibits the ‘misrepresentation of the nature, characteristics, qualities or geographic origin of…their goods, services, or commercial activities’ and was therefore not compromised.

While this decision is legally sound based on jurisprudence, it exposes a fault in the U.S.’s way of handling large technology companies. Currently, the laws in place can cover a variety of speech on the Internet, such as obscenity, as well as false statements of fact,’ although this has had an irregular pattern of enforcement. In light of this, YouTube’s defence based on California law is circumspect, as it would have been easier to defend on a platform of combating ‘misinformation’ due to Prager University’s grounding in false facts. 

It highlights the power of these platforms to decide what content to amplify, and to silence, at the expense of due process.

As the first case considering the capacity of popular private forums to police the parameters of speech online, the ruling is very significant, in that it exposes several problems. Firstly, it highlights the power of these platforms to decide what content to amplify, and to silence, at the expense of due process. The second problem is that - social media platforms, including YouTube have next to no state oversight, and often operate under a public and a private label, labelling themselves as supporters of freedom of speech in public, but in practice selectively performing the editorial function of a private company. This is blatantly taking advantage of CDA 230, which suggests that no internet provider shall be treated as a publisher. However, Facebook, another flagrant violator, is currently arguing that they are a media company and thus a publisher of their data, which entitles those who it publishes First Amendment rights. This sort of legal duality is another unpunished violation which exposes the lack of litigation and ability to deny social media platforms the ability to misrepresent themselves like this.

This ruling creates huge gaps in how we view freedom of speech … [it]

leaves the bulk of the censoring to corporate bodies, who are not accountable to the people unlike governments

Of course, regardless of the law, this ruling creates huge gaps in how we view freedom of speech. Prager University is clearly a borderline case, but the ratio of this case does not only apply to Prager University. It applies to every individual and corporation who publishes their videos on YouTube, effectively negating any claims of freedom of speech online, excepting those forms of expression which are either hateful or protected. This leaves the bulk of the censoring to corporate bodies, who are not accountable to the people unlike governments. Even in 2012, these issues were becoming apparent- on the creation of an anti-Islamic film called Innocence of Muslims, which sparked protests leading to the death of a U.S. Ambassador. YouTube, adhering to Code 230 could not legally be forced to delete the video, which led to tangible global consequences. The case made in this article rings true today. Given the Obama administration’s failures to control the way that YouTube approaches freedom of speech, and the very real casualties which it led to, YouTube’s negligent approach to what freedom of speech clearly requires reform.

Finally, there is a huge problem on a global scale with the manipulation of social media by state actors, and the issues raised by their lack of oversight and regulation. This is seen through two case studies. The first is through YouTube’s owner, Google LLC’s troubling association with China. China has a fluctuating record on human rights, exemplified by the arrest of Jimmy Lai, a prominent free speech activist, and the dehumanisation and incarceration of the Uighur peoples. Despite these glaring violations of freedom of speech, Google was involved with plans to build a search engine tailored to the Chinese Communist Party’s need to restrict content surrounding human rights and historical events. It represents a clear violation of Google’s mission statement- to ‘organise world information and make it universally accessible.’

The judgement ruled by the 9th Circuit gives companies carte blanche to allow speech which aligns to their interests, and to censor that which does not. Google and other social media platforms are alleged to have enabled foreign interference in UK and US elections. For example, right-wing group admins averaged nearly 1000 posts per day. Twitter, specifically, facilitated, around 50,000 bots which were mostly pushing pro-Trump memes and information, which were interacted with millions of times. Given that these social media platforms play an increasing role in how we live, the politics of YouTube, Twitter and Facebook cannot be overlooked. Most worryingly, interference in the 2016 Presidential election can be regarded as a notable factor of the result.  This undermines the presumptive narrative that these platforms are impartial arbitrators of speech, and reinforces the urgency for increased oversight.

This undermines the presumptive narrative that these platforms are impartial arbitrators of speech, and reinforces the urgency for increased oversight.

While this is not to dispute the 9th Circuit’s judgement, this case transcends a dispute between an alt-right false news outlet, and a benevolent corporation. It involves everyone who uses the internet and expects their speech not to be regulated. Despite Prager University being a poor example of freedom of speech, this case will have implications on other, more credible cases of freedom of speech. Given social media platforms inability to weed out political interference, and their failures to restrict speech to preserve lives, it is clear that there must be a re-codification on laws of speech online, as well as a unified approach to social media platforms’ utilisation of dubious defences.