Trending Legal News Vlog: Youtube & Free Speech

YouTube’s impact on public discourse, internet regulation, and the First Amendment

by Brett Gossett  

1. Development of YouTube and the First Amendment

 “The digital revolution has produced the most diverse, participatory, and amplified communications medium humans have ever had: the Internet.”[1] With this heightened ability to spread and receive information comes endless obstacles and opportunities to both protect and destroy free speech within the First Amendment.[2] In a time when much of the important public discourse and exchange of ideas are happening on the internet, Congress’ attitude and current legislation must catch up with this shift in order to protect every American’s constitutionally protected free speech.

YouTube in particular has become a place where lack of the platform’s accountability, commercial motivation, and the individual exercise of free speech have collided to create an ideal atmosphere to analyze the role of each of these within modern day society.[3] YouTube’s pervasive reach and influence is undeniable.[4] According to a Pew Research Center study conducted in 2018, 85% of U.S. teens report regular use of YouTube, making it their most used online platform in front of Facebook and Twitter which reported a 51% and 32% regular use, respectively.[5]

In the generation of abandoning traditional television in favor of more personalized media content, platforms like YouTube have managed to garner a massive following to the tune of 1.8 billion registered accounts that check in daily to watch 5 billion videos, as of 2018.[6] A “YouTuber” is a term that refers to a content creator that uploads videos to the platform, these individuals are quickly becoming the next generation of celebrities with massive followings enabling them to have New York Times bestselling book deals, Netflix series, sponsorships and successful product lines.[7]

YouTube decided to enact this expansive demonetization because major advertisers were pulling out from the platform due to their ads being played before videos of “terrorist organizations and others hateful content.”[8] A recent controversial example of demonetization and censorship occurred in August of 2018 when Alex Jones, a popular conspiracy theorist who runs Infowars, was kicked off various online platforms, including YouTube.[9] Jones was known to spread “misinformation” and “unfounded conspiracy theories” on the internet and has since filed a lawsuit alleging that his First Amendment rights were violated.[10] Jones’ legal arguments hinge on “what kind of platform constitutes a serious media institution, and what kind of actions signify a public figure.”[11]

One of the founding principles of the United States of America is its First Amendment, which reads in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .”.[12] The Supreme Court of the United States has acknowledge the extraordinary importance of cyberspace and social media platforms on the internet in Packingham v. North Carolina.[13] Justice Anthony Kennedy pointed out in his reasoning that today the most important place for the exchange of views is cyberspace, even calling the internet a “vast democratic forum.”[14] Kennedy concludes in his opinion by emphasizes the importance of the First Amendment in cyberspace because the internet acts as a “modern public square” and is “integral to the fabric of our modern society and culture.”[15]

In dealing with First Amendment issues in a private setting, the Court in Hudgens v. NLRB determined that even if a business is open to the public and seems to serve to the public, like a shopping mall, that does not mean it is preforming a public function and, thus, should not be subject to the First Amendment.[16] Hudgens was one of many cases that limited the reach of Marsh v. Alabama, where the Court concluded that in order for a business to qualify as performing a public function it must be acting in a role that normally the government would.[17] In Marsh, a town that was owned by a private corporation imposed a criminal penalty on a Jehovah’s Witnesses who were distributing religious literature after the company-owned town had forbade this.[18] This town had "all the characteristics of any other American town" and there was no way to distinguish this town from any other, but a private corporation ran all aspects of the town, including municipal functions.[19] The Court determined that the corporate-owned town was in fact acting like a governmental organization and thus under the law was to be treated as a state actor who was required to abide by the First Amendment.[20]

Recently in March of 2018, Prager University attempted to argue that YouTube is a public forum using the “public functions test”.[21] Prager University is a nonprofit company that provides “conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored.”[22] Prager University moved for a preliminary injunction against YouTube and Google for allegedly censoring its “political identity and viewpoint” by putting age restrictions and excluding its videos by putting them on YouTube’s “Restricted Mode”.[23] Prager University argued that YouTube mission is to “give people a voice” as a “place to express yourself” in a “community where everyone’s voice can be heard” and is thus a public forum subject to constitutional free speech requirements.[24]

2. The future of YouTube and the Internet

Courts have been leaning towards treating internet platforms as private entities.[25] The Courts have followed the logic that “[YouTube]’s homepage, like the shopping center, is accessible to the general public. [YouTube], like the center, can and does publicly dissociate itself from views expressed by people who, so to speak, set up a table on their sites.”[26] On the contrary, platforms like YouTube differ from malls and public outdoor shopping centers because they provide “powerful mechanisms available to a private citizen to make his or her voice heard that is not able to be achieved anywhere else.”[27] Today, internet access is easily assessable to every person, and with it comes the ability to “become a town crier with a voice that resonates farther than it could from any soapbox.”[28]

Congress has shown its concern over First Amendment rights on the internet, especially in passing the Communications Decency Act (CDA) of 1996. Section 230 of the CDA addresses immunity from liability of platforms who publish information from third-party users, specifically stating that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[29] This has become extremely influential in the progress of the Internet, effectively letting platforms, such as YouTube, who have third-party publishers, evade lawsuits.[30] If this type of regulation did not exist, it would force these websites to censor potentially “constitutionally protected speech in order to avoid potential lawsuits.”[31] However, the negative effects of legislation of this effect is that it has increased online defamation because platforms have no incentive to police their sites, as they are not held responsible.[32]

YouTube is more concerned with its revenue stream and ability to hold on to advertisers rather than acknowledging its enormous impact in the First Amendment realm. YouTubers that do not provide suitable content for brands are quickly demonetized.[33] Essentially, demonetization is a form of censorship because it has a chilling effect on the specific YouTuber and others who fear the loss of monetization of their channel. This forces YouTubers to succumb to the demands of the platform as it heads in the direction of having more “advertiser-friendly content.”[34] Censorship and First Amendment violations do not only come in the form of having a video taken down.[35] As in the Prager case, Prager alleges only “that some of [their] videos have been demonetized or censored (in the form of an age restriction or exclusion from the Restricted Mode setting) based on [YouTube’s] intolerance towards [their] political views.”[36]

On April 11, 2018, President Donald Trump signed H.R. 1865, the “allow States and Victims to Fight Online Sex Trafficking Act of 2017” (commonly known as “FOSTA”) into law. The purpose of this law is to carve out a restriction under Section 230 of the CDA by encouraging “internet companies to exercise greater responsibility over sex-trafficking related content and to give law enforcement additional tools to go after the worst offenders.” However, FOSTA has a “knowing” requirement which works to penalize the knowing assisting, supporting or facilitating of sex-trafficking. The problem with this requirement is that “some sites may choose not to moderate content at all to avoid acquiring any requisite knowledge of covered content.” The relevancy of this law is that it is the first “small crack in the CDA legal shield that had been undisturbed by Congress since it was passed in 1996,”   which begs the question: Is this the direction that online platform liability is heading? If the answer is yes then, “this means websites will have to decide whether to overpolice their platforms for potential prostitution advertisements or to underpolice them so they can maintain a know-nothing stance, which would likely be a very tricky claim to prove in court.” The consequences of FOSTA is that “websites are pressured into deleting content, whether or not it has anything to do with sex work” and the fear is that this will create room for more bills that create exemptions to Section 230.

Unfortunately, it has become clear that when a platform takes a maximalist approach to free speech, it becomes a “de facto home of extremist figures who have been booted off mainstream social networks….”[37] This has been shown in the October 2018 shooting in a Pittsburgh synagogue, where the shooter was an “avid user of Gab, a social network popular among white nationalists and the alt-right.”[38] Because of Gab’s community standards of allowing users to say basically anything they want, it had become a hot bed for anti-Semitism, racism and conspiracy theories.[39] Congress needs to look at how its decision to not get involved in the laws regarding general speech on the internet is getting out of hand and leading to a detriment in American society.

In our current climate, it is clear that there is a real problem with speech on the internet.[40] We have three options in our approach to this issue: (1) more government regulation, but this threatens First Amendment rights; (2) more accountability on the online platform, but this leads to a skewed slant, usually liberal, on platforms that contribute vastly to public discourse, and; (3) no regulation or accountability at all, but this leads to the magnification of far-right extremism. Or, perhaps this approach should not ternary, and Congress’ method of addressing this issue should be an amalgam of all three.

Sources:

[1] Free Speech: Internet Speech, ACLU, https://www.aclu.org/issues/free-speech/internet-speech (last visited Nov. 3, 2018).

[2] Julie Alexander, The Yellow $: a comprehensive history of demonetization and YouTube’s war with creators, POLYGON (May 10, 2018, 3:43 PM), https://www.polygon.com/2018/5/10/17268102/youtube-demonetization-pewdiepie-logan-paul-casey-neistat-philip-defranco.

[3] Julie Alexander, The Yellow $: a comprehensive history of demonetization and YouTube’s war with creators, POLYGON (May 10, 2018, 3:43 PM), https://www.polygon.com/2018/5/10/17268102/youtube-demonetization-pewdiepie-logan-paul-casey-neistat-philip-defranco; Kate Klonick, The New Governors: The People, Rules, And Processes Governing Online Speech, 131 Harv. L. Rev. 1598, 1602.

[4] Salman Aslam, YouTube by the Numbers: Stats, Demographics & Fun Facts, Omnicore (Feb. 5, 2018), https://www.omnicoreagency.com/youtube-statistics.

[5] Monica Anderson and Jingjing Jiang, Teens, Social Media & Technology 2018, Pew Research Center, May 31, 2018, at 2.

[6] See Artyom Dogtiev, YouTube Revenue and Usage Statistics (2018), BusinessOfApps, http://www.businessofapps.com/data/youtube-statistics/ (last updated Jun. 1, 2018).

[7] See Franklin Graves & Michael Lee, The Law of YouTubers: The Next Generation of Creators and the Legal Issues They Face, 9 American Bar Association: Landslide 1, 1 (2017), https://www.americanbar.org/publications/landslide/2016-17/may-june/the_law_youtubers_next_generation_creatorsand_legal_issues_they_face.html.

[8] Julie Alexander, The Yellow $: a comprehensive history of demonetization and YouTube’s war with creators, Polygon (May 10, 2018, 3:43 PM), https://www.polygon.com/2018/5/10/17268102/youtube-demonetization-pewdiepie-logan-paul-casey-neistat-philip-defranco.

[9] Alan Feuer, Free Speech Scholars to Alex Jones: You’re Not Protected, N.Y. Times (Aug. 7, 2018), https://www.nytimes.com/2018/08/07/business/media/alex-jones-free-speech-not-protected.html.

[10] Alan Feuer, Free Speech Scholars to Alex Jones: You’re Not Protected, N.Y. Times (Aug. 7, 2018), https://www.nytimes.com/2018/08/07/business/media/alex-jones-free-speech-not-protected.html.

[11] Emma Grey Ellis, Win or Lose, The Alex Jones Lawsuit Will Help Redefine Free Speech, Wired (Aug. 6, 2018, 7:00 AM), https://www.wired.com/story/alex-jones-lawsuit-will-help-redefine-free-speech/.

[12] U.S. Const. amend. I.

[13] See generally Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).

[14] Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017).

[15] Packingham v. North Carolina, 137 S. Ct. 1730, 1735-38 (2017).

[16] See Hudgens, 424 U.S. at 520-24.

[17] See Marsh v. Alabama, 326 U.S. 501, 509 (1946).

[18] See Marsh v. Alabama, 326 U.S. 501, 502 (1946).

[19] See Marsh v. Alabama, 326 U.S. 501, 502 (1946).

[20] See Marsh v. Alabama, 326 U.S. 501, 508-09 (1946).

[21] See Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *15 (N.D. Cal. Mar. 26, 2018).

[22] See Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *2 (N.D. Cal. Mar. 26, 2018).

[23] See Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *5-7 (N.D. Cal. Mar. 26, 2018).

[24] See Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *3-4 (N.D. Cal. Mar. 26, 2018).

[25] See Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *18 (N.D. Cal. Mar. 26, 2018).

[26] Heather M. Whitney & Robert Simpson, Search Engines and Free Speech Coverage, Oxford Univ. Press (Susan J. Brison & Kath Gelber, eds.) (forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2928172.

[27] Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

[28] Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (quoting Reno v. ACLU, 521 U.S. 844, 870 (1997)).

[29] 47 U.S.C. § 230 (1996).

[30] Harvard Law Review, Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2027, 2027-28 (2018).

[31] Harvard Law Review, Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2027, 2027 (2018).

[32] Harvard Law Review, Section 230 as First Amendment Rule, 131 Harv. L. Rev. 2043-44 (2018).

[33] Julie Alexander, The Yellow $: a comprehensive history of demonetization and YouTube’s war with creators, POLYGON (May 10, 2018, 3:43 PM), https://www.polygon.com/2018/5/10/17268102/youtube-demonetization-pewdiepie-logan-paul-casey-neistat-philip-defranco.

[34] Advertiser-friendly content guidelines, https://support.google.com/youtube/answer/6162278?hl=en (last visited Oct. 20, 2018).

[35] Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *6 (N.D. Cal. Mar. 26, 2018).

[36] Prager Univ. v. Google LLC, No. 17-CV-06064, 2018 WL 1471939, at *6 (N.D. Cal. Mar. 26, 2018).

[37] Taylor Lorenz, The Pittsburgh Suspect Lived in the Web’s Darkest Corners, Atlantic: Technology (Oct. 27, 2018), https://www.theatlantic.com/technology/archive/2018/10/what-gab/574186/.

[38] Taylor Lorenz, The Pittsburgh Suspect Lived in the Web’s Darkest Corners, Atlantic: Technology (Oct. 27, 2018), https://www.theatlantic.com/technology/archive/2018/10/what-gab/574186/.

[39] Taylor Lorenz, The Pittsburgh Suspect Lived in the Web’s Darkest Corners, Atlantic: Technology (Oct. 27, 2018), https://www.theatlantic.com/technology/archive/2018/10/what-gab/574186/.

[40] John Naughton, However extreme your views, you’re never hardcore enough for YouTube, Guardian (Sept. 23, 2018), https://www.theguardian.com/commentisfree/2018/sep/23/how-youtube-takes-you-to-extremes-when-it-comes-to-major-news-events.

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Episode 1

1. “The digital revolution has produced the most diverse, participatory, and amplified communications medium humans ever had: the Internet” (1)
2. In a time when much of the important public discourse and exchange of ideas are happening on the internet, Congress’ attitude and current legislation must catch up with this shift in order to protect every American’s constitutionally protected free speech.
3. YouTube’s platform has a pervasive reach and presence on the internet, and its influence is undeniable -- 1.8 billion registered accounts that check in daily to watch 5 billion videos, as of 2018. (6)
4. YouTubers, content creators who make their living from the advertisers sponsoring their videos, are subject to YouTube’s demonetization efforts as the platform attempts to limit hateful content in response to major advertisers leaving the platform.
5. A recent example of such demonetization was the controversial censorship of popular conspiracy theorist, Alex Jones, as he was kicked off various online platforms, including YouTube, for spreading “misinformation” and “unfounded conspiracy theories”.
6. In a deciding case, Packingham v. North Carolina, Justice Kennedy emphasized the importance of the First Amendment in cyberspace, noting that the internet acts as a “modern public square” and is “integral to the fabric of our modern society and culture.”
7. Other critics, such as Prager University, have argued that YouTube’s mission is to “give people a voice” as a “place to express yourself” in a “community where everyone’s voice can be heard”, and is thus a public forum subject to constitutional free speech requirements.
8. This legal discourse shows us that with the heightened ability to spread and receive information comes endless obstacles and opportunities to both protect and undermine free speech within the First Amendment.
9. Next week, we will go more in depth at the future of the Internet as it concerns the First Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”.

Episode 2

1. Last week, we discussed the YouTube’s development and its impact on the First Amendment. This week, we will be looking at the future of Youtube, the internet, and free speech.

2. Courts have been leaning towards treating internet platforms life private entities.

3. While the platform gives every person the ability to “become a town crier with a voice that resonates farther than it could from any soapbox”, courts have noted that YouTube “can and does publicly dissociate itself from views expressed by people”. (28)
4. Congress’ concern over First Amendment rights on the internet is reflected in the Communications Decency Act (CDA) of 1996, which addresses platforms’ liability when publishing information from third-party users.
5. This has become increasingly influential in the progress of the Internet, effectively allowing platforms such as YouTube evade lawsuits.
6. A negative effect of such legislation is that it has led to increased online defamation because platforms have less incentive to police their sites, as they are not held responsible.
7. As YouTubers’ revenue comes from their ability to hold on to advertisers, YouTube’s demonetization essentially acts as a form of censorship, in that it heavily impacts affected YouTubers’ ability to produce and publish content.
8. As a result, YouTubers must oblige by demands from the platform to post “advertiser-friendly content”, or risk losing their revenue, and in some cases, livelihood.
9. Unfortunately, it has become clear that when a platform takes a maximalist approach to free speech, it becomes a “de facto home of extremist figures who have been booted off mainstream social networks…” (37)
10. These consequences were illustrated in the October 2018 Pittsburgh synagogue shooting, where the shooter was an “avid user of Gab, a social network popular among white-nationalists and the alt-right”, where antisemitism and extremist ideology was not at all censored.
11. It is clear that there is a growing problem with free speech on the internet. We have three options in our approach to this issue.
    1. more government regulation, but this threatens FA rights
    2. more accountability on online platforms, which typically leads to a skewed, usually liberal slant on platforms that contribute vastly to public discourse
    3. no regulation or accountability at all, leading to the magnification of extremism and hateful content

Perhaps the Congress’ approach to this matter can incorporate all three proposed elements.