Tech Platforms Aren't Bound by First Amendment, Appeals Court Rules
February 26 2020 - 2:59PM
Dow Jones News
By Jacob Gershman
A federal appeals court in California on Wednesday ruled that
privately operated internet platforms are free to censor content
they don't like.
Though not unexpected, the unanimous decision by the Ninth U.S.
Circuit Court of Appeals in San Francisco marks the most emphatic
rejection of the argument advanced in some conservative circles
that YouTube, Twitter, Facebook and other giant tech platforms are
bound by the First Amendment.
The case concerned a YouTube channel operated by Prager
University, a nonprofit founded by talk-radio host Dennis Prager
that produces short explainer videos promoting conservative ideas.
In 2017, PragerU sued YouTube and its parent, Alphabet Inc.'s
Google, after YouTube flagged dozens of its videos as
"inappropriate," stripping the clips of advertising and making them
less accessible to students, library users and children.
PragerU contended there was nothing offensive about the
restricted clips -- with such titles as "Why Isn't Communism as
Hated as Nazism?," "Why Did America Fight the Korean War?" and "Are
1 in 5 Women Raped at College?" -- and that it was a victim of
viewpoint discrimination in violation of the First Amendment.
It argued that YouTube has essentially turned itself into the
operator of a giant public square, a government-like role it says
warrants more legal scrutiny of the platform's content moderation.
PragerU brought a similar lawsuit in California state court.
"Obviously, we are disappointed," said PragerU attorney Peter
Obstler. "We will continue to pursue PragerU's claims of overt
discrimination on YouTube in the state court case under
California's heightened antidiscrimination, free-speech and
consumer-contract law."
Google, echoing the wider tech industry, argued that allowing
PragerU to pursue a constitutional claim would have "disastrous
consequences" for the First Amendment and online discourse.
The feud is part of a wider debate around speech rights in the
digital age, where a few giant tech firms own and police the
country's core mediums of communication.
No court has endorsed PragerU's legal argument. As a general
rule, the First Amendment's speech protections put constraints on
government, not the private sector. Exceptions are rare. In one
such case, the Supreme Court in 1946 ruled that a Jehovah's Witness
had the right to hand out pamphlets on a sidewalk that was the
property of a shipbuilding firm, in an Alabama suburb.
The Ninth Circuit was emphatic: This case was no exception.
"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," wrote Circuit Judge
M. Margaret McKeown for the three-judge panel, affirming an earlier
lower-court ruling.
Circuit Judge McKeown also stated that YouTube's "braggadocio
about its commitment to free speech" doesn't expose it to a federal
false-advertising claim.
"Google's products are not politically biased," Farshad Shadloo,
a YouTube spokesperson, said in a statement Wednesday. "PragerU's
allegations were meritless, both factually and legally, and the
court's ruling vindicates important legal principles that allow us
to provide different choices and settings to users."
Write to Jacob Gershman at jacob.gershman@wsj.com
(END) Dow Jones Newswires
February 26, 2020 15:44 ET (20:44 GMT)
Copyright (c) 2020 Dow Jones & Company, Inc.
Alphabet (NASDAQ:GOOG)
Historical Stock Chart
From Apr 2024 to May 2024
Alphabet (NASDAQ:GOOG)
Historical Stock Chart
From May 2023 to May 2024