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.
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.
These platforms are the giant retail shops that line the square in a capitalist world. They come and go. You don’t have to go into them and they can kick you out whenever they want.
I’ve used AWS and Cloudfront for years, never had a problem. And that’s only for high traffic applications.
EDIT I just looked this up. Seems like, in this specific instance, Cloudflare is contractually bound by the following:
"The party operating the resolver should not by default block or filter domains unless specifically required by law in the jurisdiction in which the resolver operates. Mozilla will generally seek to work with DNS resolvers that provide unfiltered DNS responses and, at its discretion, may remove from consideration resolvers subject to legal filtering obligations, depending on the scope and nature of those obligations."
There's at least some merit in an argument that YouTube is so dominant in user-uploaded video that, absent a big budget and/or notability to drive viewers elsewhere, if your video is not on YouTube it might as well not exist as far as the broader world is concerned.
You spend too much time in tech and you get blinders and literally start to think that nothing else exists. Most people still get their information from television and, believe it or not, radio.
YouTube just makes video hosting easy. You have a freedom of speech, not a freedom to a guaranteed audience.
Have you ever actually seen someone in a public square going on a rant? They are often lucky if they reach a few people.
As far as I'm aware, I can't upload videos to CNN. I'm certainly aware that other sources of video exist; I don't even use YouTube much myself.
I'm actually sympathetic to your overall argument especially when complaints focus on the difficulty of monetizing video outside of YouTube. But it's at least worth discussing what it means when a private company has outsized control over certain types of information sharing.
When YouTube started you could at least make the argument that uploading video was difficult, because in order for people to watch you had to convert it to VP6 and play it within Flash, but today everything supports MPEG4.
Monetizing video outside of YouTube also isn’t difficult. Sponsors are easy to get if you have high quality content. If you have trash content then yeah, it is hard to monetize. Which lets be real here—that’s what we are talking about.
People think they have a right to a free audience and a (cost free) revenue stream for uploading garbage content that is just marginally better than literally nothing at all. People seem to believe they have a right to an income for creating what is really just spam in video form. Honestly, I wish YouTube would just terminate the revenue sharing option entirely for non-partners. Let someone else deal with the garbage content and its associated drama.
Lets see who funds PragerU. From the Wiki:
>Much of the early funding for PragerU came from hydraulic fracturing billionaires Dan and Farris Wilks.[2][4] Two members of the Wilks family are on PragerU's board.[2] The next-largest donor is the Lynde and Harry Bradley Foundation.[7][23] Other donors include the Morgan Family Foundation, Fidelity Charitable Gift Fund, Donors Trust, and the Minnesota-based Sid and Carol Verdoorn Foundation, led by former C.H. Robinson CEO Sid Verdoorn.[23]
>As of 2018, the organization reportedly had a $10 million annual budget, of which it spent more than 40% on marketing.[2] In 2019, PragerU raised $22 million and expects to receive $25 million in 2020.[4][24] PragerU consistently spends more on Facebook advertising than major political campaigns and national advocacy groups.[25] It ranks among the 10 biggest political spenders on the platform.[25]
The lawsuit also talks about being demonetized because of advertiser preferences.
You can literally start with uploading .mp4 files on your site immediately. How many tens of billions have been spent on campaigns? There's so much money sloshing about just in the immediate vicinity of the political agenda driven folks complaining but somehow no one can throw source code on GitHub of Reddit and clones onto a server and buy a domain for a few bucks, or set up a video sharing site with all the commercial tools available, and advertise them.
Probably "originalists", although they may also be orientalists too :)
For example, Knight vs Trump basically held that Twitter was enough of a public forum that the president could not block people on his twitter account (here's a counter argument to that decision: https://abovethelaw.com/2019/07/twitter-is-not-a-public-foru...).
I'd be curious to know why Prager U didn't try to argue that youtube is a public forum. Youtube is by default open to the public to post speech on, and it holds a near monopoly position on its particular product, much like twitter. The hitch in this plan is that from my understanding, Knight didn't argue that all of twitter was a public forum, they just argued that Trump's account was a public forum.
Despite that, it seems a little contradictory to me to have legal system where twitter is considered a quasi public forum, and youtube it not.
The reasoning is that it’s similar to a government official holding a meeting, or other such public forum. That has to be open to all comers without viewpoint discrimination.
But it doesn’t mean a private business can’t block people from their accounts - just that it’s illegal for a government official to use that feature.
Except this isn't true. There are a number of exceptions where a public official can hold a meeting that is open to the public but only allows very specific topics to be discussed as chosen by the public official. In some cases, only the official may speak which means it isn't a public forum at all. Public officials in public meetings even have the power to exclude people based a a variety of criteria such as the case where someone is disrupting the meeting, or a press briefing. Knight vs Trump ruled that none of those exceptions could apply to Trump on Twitter, in essence making Trump's twitter account a completely public forum whether he wanted to or not.
In the case of Marsh vs Alabama, both parties involved were private. My point in bringing up Knight vs Trump was to point out that the issue of social platforms as public forums has already been decided in very narrow cases. It seems like Prager U's best legal strategy would be to argue for the expansion of the public forum designation to apply to youtube. A number of people in this very thread have expressed sympathy to that approach so it's not out of left field. Without youtube being declared a public forum, Prager U's first amendment approach is dead on arrival as the court rightly pointed out in this case.
Yes, but even with that ruling Twitter is still free to ban people from its platform and even prevent them from viewing Trump's tweets by blacklisting spammer and scraper IPs from it's platform, or even restrict and delete Trump's account. The court declaring Trump's twitter account a public forum does not change any of that. No can sue Twitter over that for not being able to view Trump's tweets. So this is not relevant at all.
Even the public square analogy doesn't really work because we never had global public squares.
As real flesh and bones individuals, the first amendment protections should apply.
For companies (aka: fictitious entities), are granted corporate charters by the government. They are extensions of the government allowing a bubble of state/federal government of what we call a company.
Freedom of speech makes sense when its my body - but who's body does the speech come out of with a corporation?
In that light, companies should have a requirement to uphold the bill of rights. They are created legal entities, not at all like a person.
------------------------
The glaring problem with not applying 1FA to a company means the mega-companies that wish to deplatform you leads you to no recourse. Do you have a right to use a monopolistic service?
The issue with that course of actions is that the rules to the megacorps (FAANG) also apply to the small companies with 1 or more. More regulation does tend to kill tiny companies.
PragerU is a corporation as well, so I'm not sure what you're getting at here. But this decision is absolutely consistent with applying the First Amendment to corporations.
Compulsory speech is not free speech. Why should YouTube be forced to spend their time and money to disseminate PragerU's content on their platform — i.e. to "speak" against their will?
PragerU attempted to argue YouTube infringed PragerU's freedom by arranging that metadata in a way PragerU didn't like.
There's nothing illegal about being a Nazi (at least in the US), but advertisers typically don't want to be on the same platform as Nazis (for good reason). Are you claiming that advertisers should be forced to advertise on platforms that they don't agree with?
NOTE:
I'm not claiming that PragerU is outright Nazi propaganda. I think they're a terrible organization and their videos are idiotic, but I haven't seen outright Nazi promotion on their stuff (though admittedly I haven't watched everything by them).
Without moderation things quickly become a cesspool. Whether spam, or child porn, or scams, or just extremely toxic behavior that scares off 99% of users the end result is the same.
Moderation of content - some form of censoring - is a feature, not a bug.
Nothing is stopping you from providing your own video platform that doesn't censor content (or at least doesn't censor any legal content). The free market, however, is unlikely to support you in that effort. Advertisers have always refused to sponsor content they find objectionable, and most people won't pay, so that leaves you with rather thin margins for such a service.
I agree this is true in theory, with the internet as it is today. PragerU can and should host their own videos if Google doesn't want to (edit: though in this case the problem is not related to hosting but advertising, it seems?). Anyway, we can and should criticise Google for their partisan stances and they shouldn't be treated with much sympathy if a conservative government retaliates in some way either, but that's by the by.
The problem is that this sort of thing doesn't have any limits. People were making the exact same argument when Google seized the domain of a source of unpopular speech such that the owners were not only unable to use Google's services, but in fact, were unable to host themselves too. It was basically a DoS attack by a corporation on that site.
The internet is run entirely by private companies. What happens to your argument when someone does in fact stop PragerU from providing their own video platform that doesn't censor content? For instance because an angry mob tries to shut down your ISP, or a DNS provider steals your domain, or a DDoS protection firm decides not to protect you anymore and then lets an anonymous mob take your servers offline?
Nobody at any point has violated the constitution, but the outcome is identical. Digital technology requires private sector collaboration. If an increasingly partisan set of tech firms systematically try to wipe conservative thought out - which is what they are doing - despite that this political philosophy represents about half the voting population, then they are going to end up regulated so strictly it'll make banks look like free-wheeling anarchists in comparison. This will happen slowly because conservatives don't want to do that, but it will happen, especially as actual shrink-the-state conservatives don't tend to get into leadership positions in the west.
Ultimately the right to criticise the government is a right to criticise those who have power. The arguments for it don't change if the government outsources suppression of speech to contractors, and don't change if a bunch of political allies manage to take control of organisations required to engage in speech. It's the right itself that matters.
It comes from the body of everyone who holds shares in the corporation. Banning free speech from corporations would increase the influence of billionaires, not lessen it, by making it impossible for those who don't have the means individually of purchasing distribution from banding together and purchasing distribution as a collective entity.
Concrete example: let's say there's an evil billionaire, Lex Luthor, who's flooding the airwaves with propaganda for policies that you think are awful and evil. In a world where corporate speech was prohibited or restricted, you and your neighbors would have much less power to oppose Mr. Luthor, because you would be unable to band together and form a corporate entity (e.g. "Concerned Citizens Against Kryptonite Pollution") to oppose Mr. Luthor's advertising that kryptonite is a perfectly safe chemical which has no negative health effects.
We, as many societies, will have to deal with the other large question: what do we do with monopolistic mega-companies?
The Youtube question has to primarily do with that they're the primary go-to for videos online that aren't related to pornography. There is Vimeo and other tiny video sites, but none of them amount to the connected monetization platforms, like the way Google does with YT.
Traditional monopolies don't really come into place, because as the canard here on HN is, "You can just make your own video site." In reality, that ignores all the interconnection and entrenchment. But Google doing X doesn't mean you can't. Are they a monopoly? (I believe they are.) And if so, what restrictions should they have in place to be fair?
(As and aside: I am arguing this in good faith. I've seen and had friends deplatformed for infosec, hacking, and gun repair videos on YT. I've also seen similar on FB and Twitter as well, with no recourse. And on FB and Twitter both, my elected politicians show up and talk with the populace. But alas, my first comment sits at -4, for what I guess is as a 'disagree button'. )
Why draw the line at pornography? It's legal and protected speech (at least "mainstream" porn, not talking about child porn or anything like that).
It's easy to say "well obviously YouTube isn't going to host that!", but it feels if we're going to compel them to platform speech they don't like, why would it stop at porn exactly?
NOTE:
I disagreed with your point above but I actually upvoted to offset some of the downvotes. HN really should reserve downvotes for problematic stuff or spam, not just people disagreeing where to draw the line for free speech.
The real "problem" is that the US has the First Amendment, which guarantees both free association and free speech in a relatively absolutist manner. Unrestricted corporate speech is a result of the confluence of those two conditions. I can associate with whomever I please, so long as it is not for a criminal purpose, and I can say whatever I want (subject to the usual restrictions around threats and direct incitements to violence). So of course, I can gather with like-minded individuals to say things more loudly.
I don't think the solution to this "problem" has anything to do with speech laws. The root cause, as you pointed out, is the massive disparities in wealth. If we addressed that, then the problem of the wealthy being able speak more goes away, without us having to weaken the First Amendment, a step I am very averse to taking.
Billionaires own, or control, PragerU, both in funding and board seats.
So they get the best of both worlds - the ability to use corporations to speak on their behalf _and_ shield them from the consequences.
I hope Prager appeals, this could easily reach the SC and potentially be an even more influential case than Marsh.
If they can't convince that level of hack, they don't have a chance in the SC.
Or as pointed out in the article, probably not:
> Appeals court judges were not convinced. They pointed to a Supreme Court case[1] from last year in which plaintiffs unsuccessfully "tested a theory that resembled PragerU's approach, claiming that a private entity becomes a state actor through its 'operation' of the private property as 'a public forum for speech.'" The case involved public access channels on a cable TV system.
[1] https://www.scotusblog.com/case-files/cases/manhattan-commun...
Interestingly Manhattan Community Access Corp is definitely in some regards closer to a state actor, being authorized by NYC to operate.
The question of trading off between the customer's speech and the service provider's freedom seems to be nearly the same in both cases.
But the people following along at home have almost all traded sides! Those who were for the customer before are now cheering for the provider. Those who supported the old provider are now supporting the new customer. And they're using many of the same arguments to do it.
People are weird.
One important difference here is that people are free to discriminate on almost any grounds except a narrow set that have proven to be irrational and historically devastating. Race, gender, religion, and a few other things depending on jurisdiction.
The same rules apply to YouTube. If they had been arbitrarily banning the accounts of black people, they would have lost.
The wedding cake case in Oregon was much closer to what you describe.
The one in Colorado was more like the Youtube case. He offered to sell them a cake off the shelf, but refused to create a custom cake for something he didn't support.
It's not against the law to be a bad person. In fact, there's a famous quote from H.L. Mencken that "The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels."
The legal question is whether or not you can be required to create, perform, or publish something against your will. So in that narrow sense, yes the two cases are isomorphic.
If you start trying to create a legal framework that grants rights based on who's a good person and who isn't, well... Then you have a long road in front of you, and as they say, it's "paved with good intentions."
That is true, but that's not what the Colorado guy was doing. (In the Oregon case, you're right, it's much more similar.)
The Colorado guy was closer to somebody who refuses to make a cake for MLK Day. Not making a cake to celebrate Martin Luther King does make you a pretty crappy person, but it's not quite the same thing as excluding a customer based on their race.
Similarly, a print shop could by that theory refuse to reproduce the resume of a black person on the grounds that they think black employment is against their religion. There's extensive (white) theological history supporting that position.
Of course, exactly none of this is the same thing as YouTube deciding not to run ads on some corporation's videos.
> If you start trying to create a legal framework that grants rights based on who's a good person and who isn't, well... Then you have a long road in front of you, and as they say, it's "paved with good intentions."
This is the absolute crux of the matter, and something that the current crop of puritans ignore.
In the case of the bakers refusing to bake a wedding cake for a lesbian couple (I followed this case closely as I lived in Oregon at the time), the cake shop owners refused to bake the cake on the grounds that they said specifically they refused to bake the cake because the couple was gay. The bakers also went the additional step of doxxing this customer for which they paid a hefty fine.
Also in Oregon, gay people are a protected class of citizen by the State.