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Federal Appeals Court dismisses PragerU suit against Google, rules YouTube is not a ‘public forum’

Federal Appeals Court dismisses PragerU suit against Google, rules YouTube is not a ‘public forum’

“Despite YouTube’s ubiquity and its role as a publicfacing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.

https://youtu.be/22i5_2KgzC8

The 9th Circuit Court of Appeals has upheld a lower court dismissal of Prager University’s lawsuit against Google regarding restrictions placed on Prager U videos on YouTube, which is owned by Google.

The federal district court dismissed the Complaint, as we covered in Federal Court: YouTube restrictions on PragerU videos do not violate 1st Amendment:

I have long argued that the censoring or restricting of content by internet oligopolies poses a greater current threat than government action because these private oligopolies, which control so much of our communications, are not covered by the 1st Amendment.

In a ruling earlier this week, a federal court held that the 1st Amendment did not apply and dismissed PragerU’s federal claims. As a result of dismissing the federal claims, the court held that there was no basis to continue to exercise jurisdiction over state-law claims. Those state law claims could be brought in state court….

The Court held that there was no 1st Amendment claim because PragerU had not pleaded sufficient facts to show that Google/YouTube were “state actors”:

“It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.” Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976). Plaintiff does not dispute that Defendants are private entities. See Compl. ¶¶ 18–19; ECF No. 25 at 14 (conceding that “Defendants are not public entities”). However, in some circumstances, a private entity can be a state actor for constitutional purposes. Specifically, “‘[t]he Supreme Court has articulated four tests for determining whether a private party’s actions Plaintiff contends that Defendants are state actors under the “public function” test. See Compl. ¶ 87 (stating that “Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function”). Under the public function test, “[p]rivate activity becomes a ‘public function’ only if that action has been ‘traditionally the exclusive prerogative of the State.’”….

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a “video-sharing website” and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. Instead, Plaintiff emphasizes that Defendants hold YouTube out “as a public forum dedicated to freedom of expression to all” and argues that “a private property owner who operates its property as a public forum for speech is subject to judicial scrutiny under the First Amendment.” Opp. at 18….

In sum, Plaintiff has not shown that Defendants have engaged in one of the “very few” public functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. Defendants do not appear to be at all like, for example, a private corporation that governs and operates all municipal functions for an entire town, see Marsh, 326 U.S. at 507–09, or one that has been given control over a previously public sidewalk or park, see Evans v. Newton, 382 U.S. 296 (1966), or one that has effectively been delegated the task of holding and administering public elections, see Smith v. Allwright, 321 U.S. 649, 664 (1944). Instead, Defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website. Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors….

The Court likewise declines to find that Defendants in the instant case are state actors that must regulate the content on their privately created website in accordance with the strictures of the First Amendment. As a result, the Court concludes that Plaintiff has failed to state a claim against Defendants under the First Amendment.

The district court offered Prager U a chance to try to amend the complaint, but Prager U declined to do so:

After further review and consideration of the Court’s March 26, 2018 Order Granting Defendants’ Motion to Dismiss Plaintiff’s Federal Causes of Action; Dismissing Plaintiff’s State Law Causes of Action; and Denying Plaintiff’s Motion for a Preliminary Injunction [ECF No. 54](the “Order of Dismissal”), and the statements of the Court and the parties at the CMC, Plaintiff PragerU respectfully submits this status report and request for final order.

Specifically, PragerU will not file an amended complaint because, based on the Court’s statements at the CMC and its Order of Dismissal, the proposed amendments will not affect the Court’s rulings that: (1) Plaintiff fails to and cannot allege facts establishing that Defendants engage in state action under Marsh v. Alabama, 326 U.S. 501 (1946), as modified and narrowed by Hudgens v. N.L.R.B., 424 U.S. 507 (1976) and other applicable federal law; (2) Plaintiff fails to and cannot allege facts establishing that Defendants violated the Lanham Act; and (3) the Court will not exercise supplemental jurisdiction over Plaintiff’s state law claims.

As a result, PragerU also requests that the Court enter a final order dismissing the Action based on its Order of Dismissal to allow PragerU to appeal the Court’s Order of Dismissal of the two federal causes of action based on the First Amendment of the United States Constitution and the Lanham Act, to the Ninth Circuit Court of Appeal and to refile any and all causes of action based on state law in California Superior Court.

Prager U appealed the federal court dismissal, but also filed in state court on the state claims.

You can watch the oral argument in the federal 9th Circuit below:

On February 26, 2020, the Court of Appeals ruled against Prager U. Here is an excerpt from the Opinion:

Using private property as a forum for public discourse is nothing new. 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. Juxtaposed with today’s digital platforms, these analog means seem quaint. YouTube, LLC alone has more than 1.3 billion users—more than 30 million visitors every day—and 400 hours of video uploaded every hour.

Despite YouTube’s ubiquity and its role as a publicfacing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment. Prager University (“PragerU”) sees things differently and claims YouTube’s outsize power to moderate user content is a threat to the fair dissemination of “conservative viewpoints and perspectives on public issues,” and that YouTube has become a public forum.

PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. 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.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019). The Internet does not alter this state action requirement of the First Amendment. We affirm the district court’s dismissal of PragerU’s complaint.

There you have it. Unless this gets reversed by the Supreme Court, which I don’t think will happen, conservatives will need to seek a remedy other than the federal courts for political bias by large tech and social media companies. Perhaps state court is an answer, but I’m not optimistic since the state Superior Court also dismissed the lawsuit (which is being appealed).

Prager U. issued this statement in response to the 9th Circuit decision:

“As we feared, the Ninth circuit got this one wrong, and the important issue of online censorship did not get a fair shake in court,” says Marissa Streit, CEO of PragerU. “Sadly, it appears as if even the Ninth Circuit is afraid of Goliath — Google. We’re not done fighting for free speech and we will keep pushing forward.”

While considering its next steps in the federal case, PragerU continues to fight for free speech via its parallel lawsuit in California State Court. A court date is expected for later this year for oral arguments in PragerU’s appeal.

“Of course this ruling is disappointing, but we won’t stop fighting and spreading public awareness of Big Tech’s censorship of conservative ideas,” says Craig Strazzeri, PragerU CMO. “YouTube continues to falsely claim that they are not politically biased, but their recent six-figure investment in the left-wing news channel The Young Turks proves otherwise.”

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Comments

I would think that if a lawsuit can compel a baker bake a cake that disagrees with his mores, an internet site might be compelled to post my views they don’t like.

    notamemberofanyorganizedpolicital in reply to mrtomsr. | February 28, 2020 at 5:11 pm

    HEAR HEAR!

    Milhouse in reply to mrtomsr. | February 28, 2020 at 5:26 pm

    First, under federal law you can discriminate against gay people all you like. You only can’t do so under state and/or local law, in those places where there happens to be a law against it.

    Second, everyone agrees that if baking a cake is a form of expression then no law can make you bake one you don’t like. The only dispute is whether it is indeed a form of expression. Refusing to host user-provided content that one finds offensive is certainly a form of expression, and thus protected.

      If a cake is baked with any sort of message (whether in words, in symbols, or in images), it is baked with a “form of expression”.

        Whose expression is it? The baker’s or the customer’s? That’s the essential issue in the license plate cases — the courts have held that a custom license plate for some group or issue is the state’s speech, not the driver’s, so the state can refuse to say things it doesn’t like, but personalized numbers/letters are the driver’s speech, so the state cannot refuse a request just because it doesn’t like the message it conveys.

        I’m reasonably confident that an ordinary iced cake of the sort that one orders with the wording one wants would be held to be the customer’s speech, and the baker would not have a first amendment right to refuse (though he might have other rights); but the Colorado case was a completely custom cake, designed just for the customer and the occasion, and the baker’s claim was that this was inherently expressive activity, just as if the plaintiffs had commissioned a painting or a song for their wedding, and thus protected by the first amendment against all anti-discrimination laws. The Supreme Court never reached that question, so it remains unresolved.

        (The baker could also have argued that the Colorado court erred in the first place in regarding refusal to bake a cake for a same-sex marriage as discrimination on the grounds of sexual orientation. The error seems clear to me, though I think I can see what led the court to that error — an overly formulaic reading of Loving v Virginia. But the supreme court never reached that question so it remains undecided.)

      counsel in reply to Milhouse. | February 28, 2020 at 6:37 pm

      Don’t tell that to the Gay Rights Advocacy Groups or they will be all over this blog. Keep it as your secret Milhouse.

        Milhouse in reply to counsel. | February 29, 2020 at 8:08 pm

        Why would I care what the LGBTQWERTY political machine thinks about anything? I stopped supporting them years ago when it became clear that they were more interested in leftist politics than in advancing their ostensible cause.

      George_Kaplan in reply to Milhouse. | February 28, 2020 at 6:57 pm

      How is refusing to host a form of expression? Isn’t it the same as a landlord refusing to permit someone to rent their property because the person seeking to use it is BlackConservativeRepublican…?

        Not at all. The right to speak includes the right to refuse to speak, and all speech on a site reflects on that site. Just as the Hibernian Society has the right to refuse to have the Irish Lesbian and Gay Association march in its parade, Legal Insurrection or Youtube has the right to refuse to host points of view it doesn’t like, probably even in places where there is a law against discrimination on the grounds of political opinion.

        But in any case, such laws exist only in very few places. In most of the USA it is perfectly legal for a landlord to refuse to rent to Conservatives or Socialists or whatever.

      ecreegan in reply to Milhouse. | February 28, 2020 at 7:41 pm

      Refusing to host is refusing to allow other people to express an opinion on your turf. It’s not the equivalent of refusing to bake a cake for a gay wedding; it’s the equivalent of refusing to rent a space for a gay wedding.

      Virginia42 in reply to Milhouse. | March 3, 2020 at 11:24 am

      Um. Under federal law you most certainly may NOT discriminate against gay people all you want. I’ve worked in the Federal sector for 20 years. That’s a good way to lose your job, very quickly.

I would think that if a lawsuit can compel a baker bake a cake that disagrees with his mores, an internet site might be compelled to post my views they don’t like.

Pardon the dual posts

That makes it a publisher and that is a different set of rules.

    No, it does not make it a publisher. Section 230 of the CDA explicitly provides that an interactive computer service may delete user-provided content it finds offensive without thereby becoming a publisher.

      Lucifer Morningstar in reply to Milhouse. | February 28, 2020 at 8:35 pm

      No, what it says is that the operators of an interactive internet publishing platform (eg. Youtube) are not responsible for any content/comments published on the platform by its users. It says nothing about deleting material they find objectionable. It’s a “safe harbor” thing. It doesn’t give a third-party publishing platform (eg. YouTube, Facebook, Twitter, Instagram etc.) authority to willy nilly delete content simply because they don’t like it.

      https://www.eff.org/issues/cda230

      https://www.eff.org/issues/cda230/infographic

        No, what it says is that the operators of an interactive internet publishing platform (eg. Youtube) are not responsible for any content/comments published on the platform by its users. It says nothing about deleting material they find objectionable.

        You are wrong. The very title of Section 230 proves you wrong: “Protection for private blocking and screening of offensive material”. The text provides:

        (2) Civil liability
        No provider or user of an interactive computer service shall be held liable on account of—
        (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

        The whole point of this law was that the courts had just held that AOL, by deleting offensive posts from its chat rooms, had become a publisher rather than a common carrier, and was therefore responsible for everything it didn’t delete. And it was obvious that such services simply couldn’t operate under such a rule. So Congress created this third category, a forum where content is the poster’s responsibility, and the host is not presumed to have even seen, let alone to have approved, any post, but the host is still entitled to delete objectionable content when and if he finds it.

      Arminius in reply to Milhouse. | February 28, 2020 at 10:11 pm

      Which is an unprecedented immunity. The argument behind section 230 which amended the Communications Decency Act was that social media sites were in effect common carriers like phone companies, delivery services, even airlines.

      But in the past common carriers had to accept the fact they had certain public obligations they had to accept in exchange for these legal privileges. Such as non-discrimination (including viewpoint discrimination), some restrictions on rates, and service to all customers. Airlines and phone companies can’t pick and choose to whom they want to provide service. They can’t refuse to provide service to someone because they don’t like their political views.

      The whole point of section 230, which became law in the 1990s when the internet was just becoming a reality, was to foster a free and open internet. In order to do so the law carved out an exemption not given to newspapers or other types of media; that they can’t be held responsible for the views expressed by third parties on their supposedly neutral platforms.

      Things have changed. Now the social media giants have no problem arguing hypocritically arguing as recently as 2017 that broadband providers such as Verizon or Comcast who could block their services that they must not be allowed to do so. That those providers must not be allowed to act as restrictive gatekeepers that prevent their subscribers from viewing certain content. But on the other hand they themselves they should receive the benefits of being classified along with common carriers while acting as publishers; they themselves can block people from viewing certain content. Which includes deplatforming content providers when those providers have viewpoints that their own censors dislike (according to those who have studied the matter such as Richard Hanania of Columbia University’s School of International and Public Affairs nearly 100% of the social media bans are against conservatives).

      The solution is obvious. Congress needs to repeal section 230. Since the social media platforms have decided to control the content of what they allow on their sites, or what they can relegate to the backwaters of the internet where the vast majority of users won’t even know it exists, then they need to be treated exactly like newspapers, etc., which are legally responsible for everything they publish such as false, libelous, and even criminal content.

        rdmdawg in reply to Arminius. | February 29, 2020 at 12:09 am

        This is how you attack the big tech companies. Lawfare. Bury them under every civil suit that they facility communications for or provide other services. They are also subject for criminal indictments for every broken law that they participate in. If they want to set themselves up as publishers, fine, it’ll land all your execs in jail and your coffers utterly depleted. Enjoy your bright future.

        Katy L. Stamper in reply to Arminius. | February 29, 2020 at 6:49 am

        Really great points, Arminus. Thank you!

        Tom Servo in reply to Arminius. | February 29, 2020 at 8:06 am

        Very good points, all! I sympathize with Prager U., but this is a problem that cannot be fixed judicially, it can only be fixed legislatively. And if it cannot be done legislatively, then it cannot be repaired.

        Prager U. was asking the Court for an activist re-interpretation of existing law to give them relief. As much as I hate to say it, the 9th Circuit was legally correct to refuse.

        Milhouse in reply to Arminius. | February 29, 2020 at 8:44 pm

        The argument behind section 230 which amended the Communications Decency Act was that social media sites were in effect common carriers like phone companies, delivery services, even airlines.

        The argument was that they were in effect common carriers, even though they did delete objectionable content, which common carriers can’t do. The courts had just said the law didn’t provide for such a thing, so Congress changed the law.

        The whole point of section 230, which became law in the 1990s when the internet was just becoming a reality, was to foster a free and open internet.

        The point was to allow that while still allowing hosts to delete objectionable content. That was the entire purpose of the law. It says so right in its title.

        In order to do so the law carved out an exemption not given to newspapers or other types of media; that they can’t be held responsible for the views expressed by third parties on their supposedly neutral platforms.

        They already had that right, so long as they didn’t moderate. The point of section 230 was to let the moderate and still keep that right.

        The courts had just said that if you delete one objectionable post you become responsible for everything you don’t delete. Providers said they couldn’t operate like that.

        Newspapers can work like that because nothing is published before an editor OKs it, and even then they only publish a small selection of what is submitted. Newspapers don’t just moderate user-supplied content, they curate it, publishing only what they think will enhance their product.

        Interactive computer services, such as this forum we’re using right now, operate on the opposite principle, that everything a user submits is automatically published, unless the host notices it and decides to delete it. But that power to “post-moderate” is crucial, because without it any such forum turns into an unreadable sewer, with spam, pr0n, and outright racism.

        The solution is obvious. Congress needs to repeal section 230. Since the social media platforms have decided to control the content of what they allow on their sites, or what they can relegate to the backwaters of the internet where the vast majority of users won’t even know it exists, then they need to be treated exactly like newspapers, etc., which are legally responsible for everything they publish such as false, libelous, and even criminal content.

        Then you make such forums impossible. Prof Jacobson would have to shut this whole forum down, or else hold all comments for moderation, and hire enough moderators to go through it all, carefully scrutinize each comment, and approve only those that are guaranteed not to be problematic. I doubt he could afford to do that.

        As it is, the moderators here use a light hand. Truly offensive comments, as well as spam and pr0n, are deleted, but it takes quite a bit to trigger that, and it takes a while for a moderator to notice it. For instance there are commenters here who think rape is funny. Whenever I notice a rape joke I report it to Prof J, and he always deletes it. But imagine if he had to hold all posts in advance to screen for them, and were held liable if he accidentally let one through.

Hasn’t Prager learned to shop for a friendly court?

It will require a conservative organization or individual with extremely deep pockets to provide a comparable service that does not discriminate (or discriminates with a conservative bent).

Unfortunately, Google/YouTube has achieved the “first” position in this field. They ultimately might be unseated, but I suspect it will require several decades.

    Katy L. Stamper in reply to navyvet. | February 28, 2020 at 8:59 pm

    Leaving big tech causes some withdrawal symptoms, but Gab and Censored TV are good.

    http://www.Censored.TV has Milo & Gavin McInnes, and costs $10 a month. I’m watching his Friday night show right now, “Friday Night’s Alright.” Starts at 8:30 p.m.

JusticeDelivered | February 28, 2020 at 6:04 pm

The bottom line is that Google and You Tube are too big, they wield too much power, and they and other social media need to be reigned in.

Also, the pricks use their power to give liberals a big advantage.

    The best solution requires that first, conservative voters regain control of the US Congress (nothing can happen without that) and second, that Congress then updates and amends the Sherman Anti-Trust Act, and uses it to break up all of the Big Tech companies.

      Milhouse in reply to Tom Servo. | February 29, 2020 at 9:12 pm

      The anti-trust act is inherently illegitimate and all conservatives ought to oppose it and try to repeal it. It was enacted out of pure envy and greed, the essence of leftism; leftists were envious of John Rockefeller and imagined that if he was successful it must have been at their expense. So they accused him of all sorts of ridiculous things, such as selling oil at a loss in order to drive competitors out of the market, which makes no sense and never happened.

      What’s more, it’s a fascist act, because it’s impossible for defendants to know in advance what conduct will be punished and what won’t.

Why is it that only one committee is looking at this problem; Chairman Ted Cruz Judiciary’s Subcommittee on The Constitution?

Why is that whoreson McConnell not pursuing this with vigor? It’s worse than laziness; he’s sheltering Big Tech.

I guess google’s undemocratic and authoritarian behavior doesn’t merit more than one subcommittee assignment? What about a task force? Make this the 2020 wedge issue theme?

Forget the executives. I want the computer scientists writing the algorithms hauled into the senate and grilled like a Los Gatos vegi-burger. I want to see Google’s team leaders dragged into senate and rolled like a drug addled Tenderloin District hobo.

I don’t know why there isn’t an alternative to youtube at this point. They screw so many of their content owners, people would flock to anything else viable.

Katy L. Stamper | February 28, 2020 at 6:45 pm

I have not read any of the documents in this case, I don’t remember what I read of YouTube’s terms of service many years ago, and I haven’t done legal research in this topic so I’m commenting without all that.

In years past I was known to do some state appellate work, and found usually that if I dug deep enough and far enough back, some unique information and thus theory would come to me.

My impression has been that the right judge or panel could be persuaded that the tech companies have engaged in a failure of consideration, breach of contract, fraud, or something similar to stop this conduct. I’m sure this has been discussed before.

The courts historically have applied all manner of causes of action shoehorning them into authority.

These sites become successful ONLY because they lure people into contributing to them. They must have contributors. In Facebook’s case, they charge for advertising and building an audience.

Therefore, it’s decisions and YouTube’s decisions, to pull the plug on contributors with completely arbitrary decisions -AFTER they have secured the $$ or content – undoubtedly renders the consideration paid (time, $$ or content) obtained fraudulently or in breach of agreement, regardless of TOS.

No one pays $100,000 to get the plug pulled. No one puts 1,000 hours of content up, builds up an audience to millions, just to get the rug pulled out.

Perhaps no judges believe in fair play for the right, or perhaps they refuse to create new causes of action for the right, whatever. The fact is a cause of action based upon these types of arguments should have no difficulty whatsoever stating a cause of action.

And when I think about all the cases I read in law school about “contracts of adhesion,” if these websites terms of service aren’t adhesion contracts, then they’re nothing. They’re also unconscionably one-sided, etc., etc., and all the usual talking points.

I believe it could be done. Even if tried somewhere and failed, it should be tried again. How many suits were brought against tobacco companies before they lost one?

Also, remember, the tech companies’ employees are 75% foreigners. They wouldn’t know the 1st amendment if it was a pit bull, it growled and bared it’s teeth at them, then bit them on the ass.

Katy L. Stamper | February 28, 2020 at 6:51 pm

By the way, this goes for a site named NextDoor.com also. They deplatformed me for “discrimination” when I made my opposition to a local “Mexican-American” candidate for public office.

They permitted him to splash his happy talk all over the comments section, but my comments in opposition to his candidacy got me kicked off the platform. Just more high-tech segregation & discrimination.

Just what we don’t need: more hyphenated Americans in office.

Katy L. Stamper | February 28, 2020 at 7:03 pm

Also, without giving it deep thought, a good first stab would be for Congress to enact legislation prohibiting companies from accepting payment or content unless their TOS/contract provides for objective standards for such.

Kind of like how we do with residential renters. Can’t pull the plug except in specific circumstances.

I understand the dems won’t support this, so it won’t go anywhere, but perhaps the gop will win the house and keep the senate this year.

If the platform restricts viewpoints, it’s a publisher, not a bulletin board, and can be sued for libel. No safe haven.

Early on in their build up to their Goliath status the tech company sought federal protection from litigation claiming status as a platform rather than a publisher. In receiving that protection from Congress they placed themselves in a position where they are subject to Federal jurisdiction and subject to the same conditions as a state actor.

At least that is my understanding of the agreement with Congress. Now I understand that I may be reading too much into the agreement, but let suppose that (using a group that has already been mentioned here) that the tech giants started suppressing gay ideology. How long do you think it would take before Congress and the courts stepped in to act?

It is easy to brush off a claim as beyond your jurisdiction if the ideology is not the political flavor of the day. And as a gay man I would love to see a lot less of the radical LGBTQ b.s.

    Katy L. Stamper in reply to Shadow5. | February 28, 2020 at 8:00 pm

    I wouldn’t say that made them “state actors” but I would say, they obviously opened themselves up to regulation by horsetrading to avoid a certain form of legal exposure.

    So, Congress, do it again. I do like the utility angle. AT&T never cut off my phone because of what I say.

    Milhouse in reply to Shadow5. | February 29, 2020 at 9:30 pm

    Your understanding is not true. There was never any “agreement with Congress”, and certainly nothing that made providers “subject to Federal jurisdiction and subject to the same conditions as a state actor”.

    The facts are simple: Interactive computer services such as Compuserve chat rooms were considered common carriers, and thus not liable for what people said on them, but they ran into a problem with spammers, people posting pr0n, sexual predators, and other content that was threatening to make their forums unreadable. So they hired moderators to try to look in on chat rooms and delete anything obviously bad, while allowing the free flow of conversation to go on around them. In effect it became like road traffic, where everyone drives on their own responsibility, without cops to direct them, but you have cops roaming around pulling over those they happen to see breaking the law.

    But there was a big court case, Stratton Oakmont v Prodigy, which held that since Prodigy deleted some messages for “offensiveness” and “bad taste” it was responsible for everything it didn’t delete. Expecting Prodigy to moderate its entire traffic was impossible. It was getting 60,000 messages a day, and could not possibly afford to hire people to go through all that. But the only alternative was to let anyone post anything.

    So Congress enacted 14 USC § 230, providing “Protection for private blocking and screening of offensive material”. It explicitly authorizes hosts to delete anything they find offensive without thereby becoming responsible for whatever they don’t delete.

    (My faulty memory had told me the court case was with AOL, but I just looked it up and it was Prodigy.)

Questions Pragers attorneys should place before the Supreme Court.

1) Considering the fact that the U.S. Government uses these platforms to get information out to the General public: Where is the line drawn between a public platform and a private platform?
2) Sense Congress used legislation to provide protection for these companies under the platform status shouldn’t the Courts have jurisdiction to determine whether the tech companies are acting as a platform or a publisher?
3) Would the Court step in to act if these platforms started denying or supressing Federal sites? (for example I.C.E. the DOD or Congressional sites.)

Does the agreement Congress made with these companys have the force of law? And if so isn’t it the Courts obligation to interpret and uphold the law?

    How about an executive order barring google or youtube from government work until they stop censoring selectively?

      The problem with a executive order is it is only binding during that administrations term in office. And will be challenged in every court ad nauseam. Whereas A ruling by the Supreme Court’s is all but final. ( look at Roe v. Wade.

        Katy L. Stamper in reply to Shadow5. | February 29, 2020 at 6:27 am

        True, but it would be of benefit by:

        1. making the issue front and center;
        2. possibly helping in the short term to level the playing field
        so that during the election, normal Americans would be
        deplatformed less thus helping to win elections;
        3. put the platforms on defense.

        Katy L. Stamper in reply to Shadow5. | February 29, 2020 at 6:40 am

        4. And of course, giving congress time to pass something if they find the guts to do it.

        Katy L. Stamper in reply to Shadow5. | February 29, 2020 at 6:46 am

        However, the supreme court’s decisions are not “all but final” unless they affirm the left’s view point.

        Daniel Horowitz of Conservative Review has an insightful article on this, https://www.conservativereview.com/news/horowitz-much-overturning-roe-conservative-5th-circuit-rules-ms-pro-life-law/, and he had another that was even more on point, but I can’t locate it.

        The left lower courts will overturn anything (for example we had a scotus case in the 70s that made homosexual marriage illegal), but the right lower courts won’t.

        Also, scotus doesn’t typically take a case unless there’s a conflict in the lower courts, and if all the left lower courts agree, then there’s no split to decide!

        Also, note despite the recent scotus decisions upholding time after time President Trump’s immigration decisions, we STILL have the 9th circuit issuing nationwide injunctions against them. Happened just yesterday! So much for the stay-in-Mexico protocol which has finally helped in reducing numbers of illegal aliens.

          Katy L. Stamper in reply to Katy L. Stamper. | February 29, 2020 at 6:48 am

          *The decision didn’t “make” homosexual marriage illegal…. sloppy choice of language, which is my habit. I didn’t read the decision; I assume it just decided that marriage law at the time wasn’t unconstitutional because it did not provide for same.

      How about an executive order barring google or youtube from government work until they stop censoring selectively?

      I’m pretty sure that would work. The devil would be in the details, since while we can all see what’s happening the companies insist it isn’t, and would fight any such order, so the rules would have to be very specific and backed by copious evidence. It might take a month to write such an order, but I think it could be done.

    Milhouse in reply to Shadow5. | February 29, 2020 at 9:44 pm

    None of these questions make sense.

    1. A public forum is one operated by the state, for the public to post whatever it likes. For instance, the courts found that while Twitter is of course a private forum, since Donald Trump was operating his account as a government account (by conducting official business on it and by having government employees managing it) the comments section of that account (or whatever the Twitter terminology is) is a limited public forum, subject to the first amendment. It can be moderated, and the moderation need not be content-neutral, but it must be viewpoint-neutral. Of course if he had kept his account purely private, running it himself or by people he hired privately, and not using it for official government announcements, it would still be private and he could do whatever he liked with it, subject to Twitter’s approval.

    2. No, that makes no sense at all. That’s not a legislative function, it’s a judicial function. Congress defined three categories: common carrier, publisher, and interactive computer service, and the courts decide in which category a given company’s conduct fits.

    3. No, it would not. Private companies have an absolute right to refuse to do business with the government. The government also has a right to refuse to do business with private companies, but that right is not absolute.

    There was no “agreement” so your question makes no sense.

Google, Facebook, Twitter et al. need to be assessed as public utilities. The phone company never denies service to a customer over the content of his calls.

How is a social media ban not a form of defamation?

Katy L. Stamper | February 29, 2020 at 6:41 am

Arminus put up an excellent comment closer to the top. Good points all.

Katy L. Stamper | February 29, 2020 at 6:53 am

Also, again this is for Congress:

Since these tech companies are having a Huge influence on American discourse, which influences and can and has changed the direction of American culture’s development and/or decline, it is time for Congress to declare these “sensitive” “national security” companies, and just as in defense companies, prohibit ANYONE from being employed by them, unless they are American citizens.

Since these foreigners were marinated in foreign culture, they have no business influencing ours. Further, they have a financial interest in negatively influencing ours, because if they destroy our speech that defends our borders and reduced immigration, they can bring their families here to our detriment, and make money at Americans’ expense.

These are sensitive jobs, they require American citizens to fill them.

    That would pretty blatantly violate the first amendment, just like such a rule for newspapers or TV channels.

    As Glenn Reynolds often points out, the most influential media are the women’s magazines. Can you imagine such a rule for them?!

    In any case, such a rule would do no good, since the ctrl-left is overwhelmingly American, not foreign.

“Sadly, it appears as if even the Ninth Circuit is afraid of Goliath — Google. We’re not done fighting for free speech and we will keep pushing forward.” -Prager U. statement

Uh, no. Free speech is expression uninhibited by government restraint.

Resubmit the suit, but this time show how not one of the censored videos contains material of a sexual, pornographic, violent, or dangerous nature, that would preclude it from being shown to children. Show YouTube has broken its own actions. Prove YouTube wrong from its own actions, from its breaking of its own standards.

    Milhouse in reply to Sally MJ. | February 29, 2020 at 9:52 pm

    Those are not the only grounds on which YouTube can censor content. And it can change its standards any time it likes.

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