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Should Conservatives Sue Private Media Companies Over Content?
Prager University, a nonprofit that produces short, educational videos from conservative perspectives, is suing YouTube and its parent company, Google, claiming the tech giant is illegally censoring some of its content as part of a wider effort to silence conservative voices.
A lawsuit filed Monday evening in federal court in San Francisco says YouTube’s more than 30 million visitors a day make the site so elemental to free speech in the digital age that it should be treated as a public forum. The suit argues the site must use the “laws governing free speech,” not its own discretion, to make decisions about what to censor.
The nonprofit, known as PragerU, alleges that by limiting access to some of its videos without clear criteria YouTube is infringing on PragerU’s First Amendment rights. [emphasis added]
So a conservative organization is demanding that the government override the private-property rights of a private media company, and instead treat this private media outlet like a government organization? A conservative plaintiff is saying that?
And these “conservatives” are also insisting that a private company be required to meet the “First Amendment” standards of public entities?
I wonder how the folks at Hillsdale College feel about that? Or Liberty University? Or Chick-Fil-A?
I’m thinking that private companies should have control of how they run their businesses, up to the point that they are directly endangering others.
On the other hand….
As I said on the podcast today, this is a tough call because 67 percent of Americans really do get their news via Facebook. Newspapers call it “the real front page,” the place where most of their customers access the news content. YouTube is the portal for video content that millions of people in the real world actually use. So while libertarian ideals sound great, in fact if YouTube does shove conservative content onto the back shelves, the practical impact is very real. The Right is already getting our head handed to us in popular culture (and not even trying to fight back). Getting marginalized on YouTube on top of that is very troubling.
So which comes first: The conservative principles of private property and individual choice, or the political survival instincts for ideas that could literally die in darkness?
I look forward to hearing what the Ricovanchists think!
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The problem is that the hypothesis has been tested and is demonstrably false.
Your liberal cousin is never going to join Reaganbook to look at your grandkids pictures. Nobody edits conservopedia. Infogalactic seems to be doing better… for now. Gab.ai isn’t allowed on phones and has the 7 million witches problem and no major corporation is going to have a Gab profile.
At some point the 100% fail streak will have to be wrestled with.
I’m happy to be attributed…FWIW.
I think you struck the nail on the head EJ. Businesses that create content are responsible for that content. In the case of copyright violations, for example, they can be sued for misusing copyrighted content. This has nothing whatsoever to do with the DMCA. The DMCA was passed in recognition of the fact that ISP’s aren’t content creators, but merely hosts, so it’s not reasonable to hold them responsible for copyright violations. Instead, they’re only required to remove copyrighted material hosted on their networks when notified by the copyright holder. This seems like an eminently reasonable response to one of the legal challenges created by the internet.
The issue, as I see it, is that outlets like Google and Facebook want to be treated like common carriers. They’ve argued, successfully, that they shouldn’t be held responsible for the content because they merely host it, not create it. They’ve been treated like ISP’s by the courts, and benefited from the lower standard created by the DMCA. For a long time I agreed with this approach.
However, these companies are rapidly and increasingly moving into a third category of actor – publisher. They don’t create the content, but if they selectively take down, block, filter, censor, and demonetize content they deem inappropriate, what is their responsibility for the content that remains? That’s a legal question that needs to be answered, and I don’t mind if the courts do it based on legacy law until the legislature acts. BTW, lest you think this is a non-issue, how many YouTube videos and Facebook photos have releases to go with them? Is a publisher responsible for ensuring that they do?
I’m perfectly happy to treat these companies like ISP’s as long as they act like ISP’s. If, however, they choose to be publishers, we need to treat them like publishers.
YouTube is moving from “publishes all political views” to “publishes only leftist political views”. The common view on this is “Let the market sort this out”. I have my doubts about the efficacy of a market solution in this case.
I’m no more happy about calling in the government than any of you, but try and come up with a solution that doesn’t cede territory to the SJWs.
Was anybody else surprised to read that YouTube has 30M visitors daily? That’s not that big a number. It’s a market to be sure, but the universe clearly doesn’t revolve around YouTube.
They don’t act like ISPs. If they act as publishers then the are protected by the First Amendment and can edit and restrict the posting of anything they deem offensive to their heart’s delight. Conservatives who whine and seek protection from the federal government to correct this perceived injustice are essentially saying that the federal government should also micromanage other news, media and publishing outlets. Ridiculous.
Correct, but if they’re publishers their business model collapses. They would have to vet and screen all of their content lest they be sued into the poor house every time a video is published without appropriate consent. If we want them to act like neutral hosts, we need only treat them like publishers for acting like publishers. I’m happy to make it their choice.
ditto
I think PraegerU should win their case. Seems most Ricochetti disagree. Living up to my username :)
My comment got really long so I made it a post: LINKED HERE
There’s a difference between the right to free speech in the public square and a perceived right to be published by a private company. Google (YouTube), Facebook and Twitter can easily demonstrate to the FCC and the courts that they routinely make a good faith effort to restrict content that promotes terrorism or other unlawful acts even if some content does momentarily appear (like live videos of suicides, for example…or death threats…or other defamatory content) before it can be removed.
If Prager University, et. al. demand that the government guarantee that their content appear on YouTube then presumably they can demand that the government can guarantee that their content appear everywhere — free of charge. But that also would mean that Antifa or the Satanic Temple or some other disgusting organization could demand that their content be guaranteed to appear everywhere. What Prager is doing is opening a Pandora’s box of amplified government intrusion and oversight. This is akin to the Democrat’s whining that the Fairness Doctrine be reinstated to guarantee that opposing or all viewpoints be granted access to the airwaves.
At present, there is no law restricting that companies cannot make competing platforms to Facebook, YouTube or Twitter that may post more right-leaning content. But rather than take up that challenge, Prager and others want to grant the federal government even more authority and oversight powers than it currently exercises. Not a smart idea.
I’m not proposing that my suggestion helps Prager win his suit. It doesn’t, and he shouldn’t. If there is any justice in the legal system his suit will be summarily dismissed.
I’m proposing a legal approach based on long-established and respected principles that may get Google to change their behavior without any regulatory intervention that violates conservative principles. If somebody who was libeled, or had their copyright violated, or whose likeness was used without a release should choose to sue YouTube, perhaps with the financial backing of a conservative philanthropist or organization, Google’s lawyers would make the case that they shouldn’t be held liable for the content. But if the plaintiff successfully makes the case that YouTube is a publisher that exercises editorial discretion over the content on their site, then YouTube would be liable for that content. They would be left with three choices:
The third seems most likely, and is in line with the presumed aims of Prager, and the Rocochetti who propose regulatory intervention. We might get the outcome we want without selling our souls to get it. It’s not a slam dunk, but I like the idea better than the other proposals I’ve read here.
My original comment seems like I’m asking about a sort of alternative conservative site. This wasn’t my intention. Content producers like Prager, Jordan Peterson, etc. can pay for a hosted website to direct viewers to. Yes, this does forgo YouTube’s ease of use and autoplay algorithms that drive viewer traffic. But one can leverage social media sites to point viewers to a link. It’s not a stellar solution, but you can work to get curious potential viewers to your content. I’m not comfortable with the lawsuit.
Can you?
I think he should.
Depending on how you’re reading the tone of this, it comes off as entirely too sarcastic. I meant to dispute your premise, not throw it back in your teeth. We’ve seen Facebook and Twitter shadowbanning conservatives and engaging in similar spurious takedowns. Mr. Prager very well might find himself unable to leverage social media of almost any kind.
You seem to laboring under the notion that Google (YouTube) doesn’t employ any measures to protect copyrighted content. YouTube makes a concerted effort to protect copyrighted material when they can find it. For example, copyrighted music that has an embedded digital watermark will automatically result in a warning from YouTube that a copyright may be violated and gives the poster an opportunity correct or challenge the claim. Images are more difficult to police and often fair use often applies for political commentary but copyright infringements can occur for images used for commercial or other revenue-generating purposes. In most cases, the onus is on the copyright holder, not YouTube nor any other medium that hosts content, to protect its intellectual property and the target of any legal action is the poster of the content not YouTube.
All that said, the Prager suit has absolutely nothing to do with copyright infringement or adequate policing of intellectual property. What the folks at Prager University are asking for is a re-establishment of the Fairness Doctrine which was eliminated during the Reagan administration. It’s a non-starter.
But they also desire to be common carriers. A common carrier is expected to have a high bar before they refuse to carry something, simple viewpoint discrimination doesn’t rise to that bar.
In either way, they are acting like monopolies and maybe it is time to beak up Alphabet.
It’s the other way around.
One argument that liberals use in “religious conscience” cases like wedding cakes or pharmacists refusing to sell Plan B is that in rural communities there might be only one provider of that service. Indeed, several of the cases taken to court were hand-picked to be from rural areas where there was no alternative.
It’s hard to argue that there’s no alternative to YouTube or Facebook when anyone can host video streaming on their own website. Even if the argument is “distribution”, there will always be more options on a globally-linked network than for a physical service based in a very rural location.
These observations are certainly true. But at some point we need some self-reflection: why wouldn’t a parallel conservative internet environment succeed?
To take an extreme analogy, if 9/11 deniers were kicked off mainstream social media and formed their own ecosystem it would also get taken over by cranks and loons despite a few serious thinkers in their midst. And the reason why is obvious – the whack-jobs are too powerful in that community. But nobody could seriously argue that their inability to create a serious standalone universe would justify forcing YouTube to carry their material (should YouTube choose to ban it).
If the right can’t establish its own distribution networks without them withering into oblivion or getting hijacked by idiots, we need to ask ourselves why. The left has been able to do so without as much trouble (look at the Huffington Post, for example). And Fox News, while not the most conservative outlet, is certainly neither obscure nor a ghetto.
Perhaps we should look under our own roof before demanding that others provide us free services to compensate for our own failures.
Yes. but didn’t the baker lose that legal battle?
Explicitly political. Nobody not a conservative is going to join an explicitly conservative community for non political content. And yes Fox News is a ghetto.
Conservatives need to create nonpolitical services, that offer a real alternative that solves a nonpolitical shortcoming of the mainstream.
Which comes back to, your liberal cousin is never going to look at your kid’s pictures on ReaganBook, thus it serves no purpose.
No, it’s before the Supreme Court now. We’ll know next June.
Every other baker / photographer has lost that battle. SCOTUS refuse to take the photographer’s case.
That’s the standard we apply to ISP’s. To the best of my knowledge, that’s never been the standard for a publisher.
When have they ever stated that? Please offer up a citation.
Again, there’s nothing preventing anyone from creating alternative platforms to YouTube (Vimeo already exists last time I checked), Twitter or Facebook. All I hear is a lot of whining and calls for the federal government to become even more authoritarian and powerful.
And whose fault is that? Sounds like a flaw in the business plan – particularly branding and naming. By proclaiming that your social media is exclusively meant for conservatives, what the heck would you expect?…that moderate or even slightly left of center folks would want to visit? It’s like many of the overtly Christian films that are targeting for the most part only an evangelical Christian audience. Do the producers of these films really think they are appealing to a larger audience of Jewish or even Catholic audiences? There was more subtlety in scriptwriting and films that treated Christian themes in the past, for example the influence of Catholic author Miles Connolly on some of Frank Capra’s films including It’s A Wonderful Life that appeals to a much wider audience but still has a spiritual message that confronts despair and nihilism. Today, not so much.
The same principle can be applied to social media sites that don’t overtly promote themselves as conservative but offer online environments that are more pleasant to spend time on without all the strident Leftist messaging. The claim that the business model has been tested and been shown to have failed is false. It hasn’t been tried as yet in the way that I’ve described.
Ok, but SCOTUS is the last word and they’ve taken the baker’s case (from Colorado), and the outcome of that case will provide guidance for photographers as well. In fact it will probably be determinative for photographers. I can’t say that for certain, but it’s highly likely.
Here –
From a blog discussion:
From Forbes:
Unless the decision is narrowly written. In either event Elane Photography has been SOL for a while now.
The Forbes article doesn’t relate to YouTube which is a Google service. The blog post cites an FCC document that pertains to Google’s specific efforts to compete against cable companies and other MSOs that provide Internet connectivity. Again, nothing to do with YouTube’s specific business, business model or day-to-day operations.
Again, to argue monopoly control in the video posting industry, Prager U. would have to show that YouTube is the only entity where it can post its videos. This is of course absurd on its face since Vimeo is a going concern and there is nothing preventing anyone else from establishing a video hosting service.
Further the blog article cited pertains to Google’s ability to control bandwidth usage for video streaming traffic (predominantly because of the demand for YouTube streaming) utilizing the backbone carriers networks. It’s a net neutrality discussion. This again, has absolutely nothing to do with the Prager U. case or their complaint that YouTube can choose at any moment to shut down their content.