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On Wednesday February 26, in a unanimous decision, the Ninth U.S. Circuit Court of Appeals ruled that privately owned internet platforms have the right to censor content they don’t like. This presumably includes the most popular social media sites Facebook and Twitter.

A panel of judges dismissed the complaint filed by Prager University against YouTube and parent company Google. The complaint alleged a “violation of the First Amendment and false advertising under the Lanham Act.” Regarding the First Amendment the judges decided that even though YouTube is a public-facing platform it is still a private forum, and therefore not “subject to judicial scrutiny under the First Amendment.

Supreme Court had its Say

In 2019 the Supreme Court found that “merely hosting speech by others” does not qualify privately owned companies as state actors bound by First Amendment constraints. Based on that decision the Ninth Circuit ruled that the internet does not qualify YouTube as a state actor merely by performing a public function.

As for false advertising, under the Lanham Act, “commercial advertising or promotion” is a requisite to have a case. The panel found that YouTube merely stating its content moderation policies isn’t akin to commercial advertising or promotion. Nor was YouTube’s commitment to free speech bound by the Lanham Act.

Prager U Complaint

Prager University filed its complaint based on YouTube’s Restricted Guidelines. Under its restrictions videos about terrorism, war, crime, and political conflicts may be deemed inappropriate for certain audiences. Usually based on age. When a video is flagged it may not be viewed by such audiences and/or demonetized. Some of Prager University’s videos were demonetized. As were those published by many other independent journalists. mainly Conservatives. In the end, Prager’s request that the court make YouTube declassify the videos as restricted was denied.

Under the First Amendment the government is prohibited from abridging speech. Not privately owned companies.

Where Do We Go from Here?

So what does this mean for social media users and independent journalists moving forward? In short it means what it has always meant. When you use a free service you are more than likely bound to the likes and dislikes of the platform provider. As co-owner of a social media platform, Red Elephant which can be found at http://RDelephant.com I remember talking with my partner about the potential of Twitter ramping up its censorship once 2020 hit. This possibility seems all the more likely now. Not because I am a musician and owner of a social media platform do I not want the government and the courts to get involved in regulating internet speech. It is because as an American I have a choice to not use platforms I feel are treating me unfairly. Once we let the government interfere in situations rational people should be able to solve themselves, we allow the government to become bigger and have more control over our lives.

Most important in all of this is privacy. The biggest issue I have is the sale of our information by social media platforms. With free social media platforms the user is the product. I cannot stress this enough. When the user is the product of a free service it means that they get paid BILLIONS from your information. Without you knowing it. That is the real crime. Not whether your favorite activist or actor is banned. It is rational that service providers are paid. It costs to keep a platform running. But our decision at Red Elephant to charge a small fee in exchange for letting the user maintain its dignity and information is one that is well worth it. It also eliminates bots and trolls. Our mission was to create a comfortable environment for people to dialogue and exchange ideas without being harassed and taken advantage of. We achieved that. The con job of others is making you believe you are getting something for nothing. The real world does not work that way.

James Cheef