🐱 Tech Platforms Aren’t Bound by First Amendment

Tech Platforms Aren’t Bound by First Amendment, Appeals Court Rules

A federal appeals court in California ruled that privately operated internet platforms are free to censor content they don’t like.

www.wsj.com

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.”

 

[TaimuRadiu]

Yeah, of course they're not bound to the 1st Amendment. They're private corporations.

But Trump can't block assholes on Twitter, because ... reasons?

 

[Duke Nukem]

Technology is for fags. Ted Kaczynski was right.

In any case, Google needs the Standard Oil treatment yesterday. I'm disappointed but not surprised.

Yeah, of course they're not bound to the 1st Amendment. They're private corporations.

But Trump can't block assholes on Twitter, because ... reasons?

"Excuse me, good sir, but the founders of this country have made it so I can't censor political opinions we don't like. Could you please work around the Constitution?"

If you think the Left hates the 2nd Amendment, just you wait until you see their opinions on the 1st.

 

[Tour of Italy]

I wish I could find it, but I remember reading an article about online censorship with a an illustrated header showing the major tech companies wading through a pool of radioactive waste (helpfully labeled “the Internet”) trying to clean it up. I had never had such a visceral reaction to a fucking political cartoon in my life and I still look back in it with disbelief at the arrogance of it all. The look of condescension on the drawn soy faces of the stereotypical tech bros, and the sense of superiority in the article itself.

We’re in a weird place where the internet is both incredibly important to public discourse, yet somehow still hopelessly artificial and overblown to the point where a caste of tech professionals really do think they’re doing humanity an enormous service by working to indiscriminately censor everyone they don’t agree with.

The best part about all of this is that conservatives are the most likely to defend corporations and their right to do whatever they want. It's hilarious watching them get exactly what they both asked for and deserve.

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You get some of that, but it’s possible to make the principled argument that government intervention in the telecommunication sector is what led to the monopoly in the first place. That, plus the general American conservative ideal that concentrated power in any of it’s myriad forms is destructive to society and the individual both.

I think it’s far funnier to watch hardcore leftists suddenly jump on corporate dick because daddy Google is deplatforming the nazis for them.

 

[moocow]

Any exceptional individuals using that argument would change their tone in a heartbeat if it were used against their speech.

This is the biggest reason I openly support and encourage people to relentlessly hammer those "report" buttons on every potentially rule-violating post all of these anti-free speech jackals make. I truly love watching liberals whine about getting suspended when they break the rules they've championed.

Every anti-free speech drone out there needs to experience censorship first hand to have any hope of understanding why free speech is so important.

 

[Duke Nukem]

I wish I could find it, but I remember reading an article about online censorship with a an illustrated header showing the major tech companies wading through a pool of radioactive waste (helpfully labeled “the Internet”) trying to clean it up. I had never had such a visceral reaction to a fucking political cartoon in my life and I still look back in it with disbelief at the arrogance of it all. The look of condescension on the drawn soy faces of the stereotypical tech bros, and the sense of superiority in the article itself. We’re in a weird place where the internet is both incredibly important to public discourse, yet somehow still hopelessly artificial and overblown to the point where a caste of tech professionals really do think they’re doing humanity an enormous service by working to indiscriminately censor everyone they don’t agree with.

You get some of that, but it’s possible to make the principled argument that government intervention in the telecommunication sector is what led to the monopoly in the first place. That, plus the general American conservative ideal that concentrated power in any of it’s myriad forms is destructive to society and the individual both.

I think it’s far funnier to watch hardcore leftists suddenly jump on corporate dick because daddy Google is deplatforming the nazis for them.

Ever since the corporate entities unfurled the rainbow flags and started claiming to support progressive causes, the "corporate greed is bad" crowd is kind of silent.

It's funny but sad at the same time, especially when the same people who support Google and Apple bitch about all the world's ills being capitalism's fault.

 

[Xarpho]

In any case, Google needs the Standard Oil treatment yesterday. I'm disappointed but not surprised.

It wouldn't have helped, most of the antitrust laws have concerned themselves with vertical integration (such as original AT&T's technical ownership of the telephones in houses, or Microsoft's integrated web browser and OS). The reason why Google doesn't manufacture its own smartphones for Android is probably to prevent this, and also probably why they sold off Motorola Mobility after owning it for just three years. The horizontal integration problem is pretty useless if all the tech companies gang up on people they don't like (Alex Jones, conservatives, etc.) instead of competing against each other. This is in stark contrast to, say, grocery stores, which are controlled by a small handful of very large businesses (H-E-B, Publix, Kroger, Albertsons, Ahold Delhaize) but fiercely compete each other as they try to drive their competitors out of the market.

 

[AnotherPleb]

It wouldn't have helped, most of the antitrust laws have concerned themselves with vertical integration (such as original AT&T's technical ownership of the telephones in houses, or Microsoft's integrated web browser and OS). The reason why Google doesn't manufacture its own smartphones for Android is probably to prevent this, and also probably why they sold off Motorola Mobility after owning it for just three years. The horizontal integration problem is pretty useless if all the tech companies gang up on people they don't like (Alex Jones, conservatives, etc.) instead of competing against each other. This is in stark contrast to, say, grocery stores, which are controlled by a small handful of very large businesses (H-E-B, Publix, Kroger, Albertsons, Ahold Delhaize) but fiercely compete each other as they try to drive their competitors out of the market.

I think the biggest issue stopping a lot of pushback against Big Tech really is the age of the people in Congress. If the grocery stores were doing this kind of thing they'd be getting hammered. Most of the people in the senate were in their 30s or 40s when the internet really started to be more than BBS's or something along those lines. Banks and payment processors being selective would be a good attack vector to stop the attack on the first amendment, but congress is oddly allergic to touching anything involving the banks since 2008 for some reason.


And even if you were somehow able to purge Congress you have the infestation that's rooted deep in every alphabet agency. How many of them were appointed by congresscritters that wanted to do things without having their reelection chances fucked? They've gotten way too big for their britches, and the more I look at all the problems the more I feel like the system needs a full purge. The people in the center are never leading those purges though, and that causes more issues. A military coup might be the only option.

 

[PantsFreeZone]

Of course it was 9th Circuit. Left-wing and kissing the asses of Silicon Valley. Interestingly, California's court history does hold historic views contrary to this, notably Pruneyard Shopping Center v. Robins, which held that free speech rules did apply in technically private areas (with "reasonable" rules, although that's open to interpretation).

It's actually a really bad sign long term because the 9th Circuit isn't nearly as left-wing as it has been in the past.

The real problem with these rulings is that the fucktards making them don't understand technology. The boomers slamming the gavel don't understand that Google and Co. aren't just private companies. They are essentially the gatekeepers, printing press operators, newspapers and local news networks of the modern era. If they understood how much power in influence and engagement these tech companies wield, they wouldn't be so blase with the "muh private company" rhetoric.

 

[CaesarCzech]

It's actually a really bad sign long term because the 9th Circuit isn't nearly as left-wing as it has been in the past.

The real problem with these rulings is that the fucktards making them don't understand technology. The boomers slamming the gavel don't understand that Google and Co. aren't just private companies. They are essentially the gatekeepers, printing press operators, newspapers and local news networks of the modern era. If they understood how much power in influence and engagement these tech companies wield, they wouldn't be so blase with the "muh private company" rhetoric.

the sooner the tradcucks die the better, make way for new right.

 

[⠠⠠⠅⠑⠋⠋⠁⠇⠎ ⠠⠠⠊⠎ ⠠⠠⠁ ⠠⠠⠋⠁⠛]

I think it’s far funnier to watch hardcore leftists suddenly jump on corporate dick because daddy Google is deplatforming the nazis for them.

Jacob Gershman isn't a leftist. If you want to put a label on his politics- not something I consider particularly productive- neoliberal is close enough.

Oh just wait till the fun begins when trump destroys section 230 and everyone is getting sued for mean words

It’s Time For Those Who Value Section 230 Protections To Panic - Above the Law

Last week, two powerful forces -- Facebook and the Department of Justice -- came out in unambiguous favor of removing Section 230 liability protections.

abovethelaw.com

That's actually a remarkably good article by ATL, which publishes a lot of garbage. Very interesting to learn that Facebook wants Section 230 gone. That will give them the perfect excuse to really go hard banning hate facts and hate true speech- on the basis that not doing so risks exposure to lawsuits.
EDIT: Interesting take on this from Ivanka

 

[DrunkJoe]

Is there some sort of legal recourse invloving contract law that might apply to uneven discrimination based on political leanings for these tech companies? They setup a terms of service and if they are not evenly enforcing it and just outright ignoring their own rules is there a case to maybe be had?

 

[AnotherPleb]

Is there some sort of legal recourse invloving contract law that might apply to uneven discrimination based on political leanings for these tech companies? They setup a terms of service and if they are not evenly enforcing it and just outright ignoring their own rules is there a case to maybe be had?

Even if there is they can drown you in millions of dollars in litigation.

 

[Xarpho]

The real problem with these rulings is that the fucktards making them don't understand technology. The boomers slamming the gavel don't understand that Google and Co. aren't just private companies. They are essentially the gatekeepers, printing press operators, newspapers and local news networks of the modern era. If they understood how much power in influence and engagement these tech companies wield, they wouldn't be so blase with the "muh private company" rhetoric.

And that's the other bad thing about the technology wing in general, the barrier to entry is so high that it effectively blocks new companies. Going with the grocery example above, you can open (or buy) a store that can compete on a 1:1 basis with the chains. You won't get the buying power as the big chains, or have one quite as large, but it's entirely possible to still have all the essentials (a good bakery and deli, pharmacy, seafood and meats), and gain a following (through prepared foods and rare items).

Creating a new technology company is all but impossible, as it requires groundwork for coding and infrastructure to run properly, and venture capitalists, which largely congregate in Silicon Valley. Meanwhile, to do this, you need to largely build off of other tech companies (Google SEO, etc.), who only allow you to do so because they don't view you as a threat.

 

[mindlessobserver]

Fortunately Prager has enough money to take this lawsuit all the way. Be interesting to see how the Robert's court rules. They have been pretty strong on 1A protections.

 

[FunPosting101]

I have mixed feelings about this, because as much as I dislike the average internet moderator even more then I did in the past due to all this stupid enforced PC bullshit, I do recognize why you need a certain number of baseline rules in order for a forum, messageboard, imageboard, or whatever else, to be able to function properly. In the meantime, I'll just continue to hope that most of these annoying and authoritarian internet hall-monitor types that work for places like Google, Twitter, etc, all spontaneously combust.

 

[#zzz]

Ever since the corporate entities unfurled the rainbow flags and started claiming to support progressive causes, the "corporate greed is bad" crowd is kind of silent.

It's funny but sad at the same time, especially when the same people who support Google and Apple bitch about all the world's ills being capitalism's fault.

But it was great for corporations. Once they gained control of the anti-globalist leftist crowd, they've now got carte blanche to do whatever they want, and all they have to do in order for people to stay in line is to tell them it's racist otherwise. Arguably its more control than they ever had over those bible bashers.

 

[Kacho]

The best part about all of this is that conservatives are the most likely to defend corporations and their right to do whatever they want. It's hilarious watching them get exactly what they both asked for and deserve.

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Net neutrality is a terrible example of this. Net neutrality gave unprecedented power and protection to internet/tech corporations, which is why they all supported it fully. There was nothing anti-corporate about it, it was the best thing that ever happened to them.

 

[Terrifik]

Thank-You NULL for a wonderful platform that you only censor.
Isn't it great that only way to bring youtube to court is through the FTC with tech laws and how they are follow those rules.

 

[WonderWino]

One could argue no court in the US, especially a federal court should even be able to hear such an argument let alone rule in favor of it under any circumstances.

Why you ask? Its quite simple. Per the US constitution the government is explicitly prohibited from infringing a persons free speech, correct? That being the case, given that the judge is the representative of the government during a court case, especially on a federal level court case, one could argue that the very act of siding with a company in allowing the suppression of free speech in any capacity and thus ruling in said companies favor, constitutes the US federal government, through an official representative responsible for enforcing the law on a federal level, explicitly engaging in an action that prohibits free speech, in explicit and direct violation of the first amendment. Isn't the very existence of the first amendment intended to prevent exactly this sort of thing by definition? I find it hard to believe that wasn't its intent when it was created

To put it simply, to say this ruling is acceptable is literally saying 'the government can't infringe on your free speech on their own but they can get around that by authorizing a third party to do it for them'

So why exactly should a court be able to authorize a company to do something they themselves are explicitly forbidden from doing, and why does the act of doing so not in itself by definition constitute violating the first amendment by what amounts to ruling against it?

 

[Marvin]

And that's the other bad thing about the technology wing in general, the barrier to entry is so high that it effectively blocks new companies. Going with the grocery example above, you can open (or buy) a store that can compete on a 1:1 basis with the chains. You won't get the buying power as the big chains, or have one quite as large, but it's entirely possible to still have all the essentials (a good bakery and deli, pharmacy, seafood and meats), and gain a following (through prepared foods and rare items).

Creating a new technology company is all but impossible, as it requires groundwork for coding and infrastructure to run properly, and venture capitalists, which largely congregate in Silicon Valley. Meanwhile, to do this, you need to largely build off of other tech companies (Google SEO, etc.), who only allow you to do so because they don't view you as a threat.

Compared to any other type of business it's incredibly cheap to start a new web technology company. Cloud infrastructure is incredibly cheap. You can get started on a small, generic VPS instance for like $10/month and scale as needed. All that's left is literally just coding, but even that's been democratized with shittons of cheap/open source software.

It's incredibly ignorant of the industry to think otherwise.

Like, a real simple example is Facebook vs Medium.com. Facebook has an alexa rank of 4. That means it's the 4th most visited website in the world. Medium, on the otherhand, is 140. Much lower. But still, 140th most popular site worldwide? Pretty impressive.

Medium.com is doing that with 85 employees. Facebook has 44k employees. That shows you how easily you can leverage much smaller resources even into big success.

If people start dicking around with CDA section 230, here's what most assuredly would happen: Facebook and all the big companies would effectively negotiate with the legal system where the limits for behavior on their platforms are. They'd have their army of lawyers figure out what their liability is and then fix it to that point with a few legal precedents.

And sure, I think the Overton window on Facebook might shift a bit to the right. You might be able to say slightlier saucier things on Twitter/Facebook without getting banned. But you won't have anything approaching first amendment rights. They're still a corporation and you're using their property to say things, no way the government's going to entirely sign over their property to their users.

And what would happen to KF? Null could get bowled over by any one of a bunch of lawsuits. Even if they're all meritless, he won't be able to immediately dismiss them like he can now.

I think the ability for a single, one-man site operator to build a space for like minded people to talk, but restrict responsibility to the person with the actual byline (ie, my name's by this post; null obviously didn't write it) is incredibly important.

It's very easy (well, for a computer nerd) to start a website and let his doofus friends talk. And if it becomes popular, he can scale up pretty easily with cloud hosting.

The hardest problem is finding funding. I run the cwcki and I pay for it out of pocket. It's not that big of a site, not like KF is, anyway. But I only started paying for it out of pocket because Paypal started banning the option to have quasi anonymous accounts. I'd rather not get doxed, so, here I am.

Regulate the banks. I think it's very important that Facebook and KF's first amendment rights (to self organize like minded weirdos) is respected. I don't give two shits about bankers' first amendment rights.

(Some people will make the argument that "well, facebook is bigger, let's classify them as a public space and not KF". The thing is, I don't trust whoever sets those limits to not weaponize that. How do they decide the limit? Bandwidth? Monthly active users? And plus, it'd be pretty gay for KF to get just "too big" and suddenly danger hairs are popping out of the woodwork to exploit that.)

One could argue no court in the US, especially a federal court should even be able to hear such an argument let alone rule in favor of it under any circumstances.

Why you ask? Its quite simple. Per the US constitution the government is explicitly prohibited from infringing a persons free speech, correct? That being the case, given that the judge is the representative of the government during a court case, especially on a federal level court case, one could argue that the very act of siding with a company in allowing the suppression of free speech in any capacity and thus ruling in said companies favor, constitutes the US federal government, through an official representative responsible for enforcing the law on a federal level, explicitly engaging in an action that prohibits free speech, in explicit and direct violation of the first amendment. Isn't the very existence of the first amendment intended to prevent exactly this sort of thing by definition? I find it hard to believe that wasn't its intent when it was created

To put it simply, to say this ruling is acceptable is literally saying 'the government can't infringe on your free speech on their own but they can get around that by authorizing a third party to do it for them'

So why exactly should a court be able to authorize a company to do something they themselves are explicitly forbidden from doing, and why does the act of doing so not in itself by definition constitute violating the first amendment by what amounts to ruling against it?

Individual actors speak by how they use their resources. If I have a building, I can paint a mural on it. That's me exercising my free speech. I can also exercise my free speech by hiring or permitting someone else to paint a mural on it.

Website operators, like null, can decide they want to build a space for people to discuss certain topics (and not discuss other topics). Organizing clubs and meetings and such is a first amendment right. If you organize a meeting of like-minded people, you have that right (freedom of association) without necessarily being responsible for the individual people's actions.