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Wednesday, February 26, 2020

YouTube not a state actor (Updated)

When SCOTUS decided Halleck last term and held that a private company managing public-access cable channels is not a state actor, it was obvious that this meant online platforms such as YouTube or Twitter were not state actors. And so the Ninth Circuit held on Wednesday in PragerU v. Google, a challenge to YouTube policies restricting or demonetizing certain videos. The court rejected the argument that YouTube performed a traditional-and-exclusive public function in managing a speech forum (the argument rejected in Halleck) or that YouTube's public declaration that it is committed to free expression changes its private nature.

This was easier than Halleck. There was something to the position that Justice Sotomayor took in her Halleck dissent that it was a delegation case rather than a public-function case--the government took on a responsibility then delegated it to a private entity. YouTube is an electronic version of the private comedy club discussed in Halleck.

This part of the opinion ended on an interesting point, telling everyone, in essence, to calm the f*&^ down:

Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.

Posted by Howard Wasserman on February 26, 2020 at 06:00 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


14th Amendment Equal Protection does not apply to private actors, given its explicit state-action requirement. Private businesses are subject to a range anti-discrimination statutes enacted by state and local governments and by Congress acting under its Commerce power, which does not have a state-action limitation. No similar statute prohibits discrimination because of speech.

Posted by: Howard Wasserman | Feb 27, 2020 6:42:17 PM

As a caveat to my comment, though: I do find it troubling, though, that we are increasingly having lawmakers (from both parties) lambasting and grilling social media companies on what they are "doing to fight hate", "prevent radicalization on their platforms", etc. Given that a lot of attention was drawn to PragerU as an early "step" on the "road to right wing radicalization", their demonetization was in part a result of this "what are you doing to fight hate" trend. It does seem like a (still legal) workaround of the First Amendment, harkening back to Tipper Gore and the PMRC holding hearings with Frank Zappa and Twisted Sister, for lawmakers to threaten speakers, artists, and content-creators with plainly unconstitutional regulation, knowing that the result is that the industry (then music, now social media platforms) will likely engage in some manner of commercial censorship.

Posted by: RComing | Feb 27, 2020 5:50:24 PM

A foregone conclusion, but it was good to see a federal appellate court take the arguments seriously. I liken it to the MPAA giving films certain ratings, which influences whether movie theaters will carry them (or allow minors to see them), or, back from when people actually bought CDs, parental advisory stickers on the jewel cases. It will hurt to get a rating that reduces your potential sales, but the distributors, producers, and retailers' rights (arguably First Amendment rights of association and/or speech themselves) can't just be ignored because you want to use foul language or graphically portray sex acts.

Posted by: RComing | Feb 27, 2020 4:00:13 PM

Did y'all ever play Metal Gear Solid 2? It's amazing how closely a game from 2001 predicted these digital information fights.

Posted by: thegreatdisappointment | Feb 27, 2020 2:57:01 PM

So does that mean anti-discrimination/14th-Amendment doesn't apply to private actors either?
Or does the 14th-Amendment mention private actors specifically, whereas the First-Amendment as incorporated against the states through the 14th-Amendment doesn't mention the 14th-Amendment that mentions private actors?

Posted by: Falling Dow | Feb 27, 2020 2:38:39 PM

Sorry(!), they held it on Wednesday, not Tuesday.

Posted by: Asher Steinberg | Feb 26, 2020 11:56:09 PM

They held this on Tuesday, not Thursday. It only just turned Thursday (and it still isn't Thursday in the Ninth Circuit).

I love the false-advertising claim.

Posted by: Asher Steinberg | Feb 26, 2020 11:54:48 PM

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