The 9th Circuit rules that social media is not bound by the First Amendment

The Left fears Dennis Prager's five-minute PragerU videos, which use experts, facts, and good writing to counter the overwhelmingly leftist spin in today's education, news, and entertainment.  Google, which owns YouTube, has therefore tried to censor PragerU videos by demonetizing them and by marking many as restricted, a label associated with violent or offensive content.  Among the videos getting this designation are those discussing the virtues of the Ten Commandments.  "Restricted" videos are hidden in general searches and are blocked in schools.

Dennis Prager sued Google for violating the First Amendment, relying on a theory that the platform is so all-encompassing that it has become the equivalent of a public utility.  Because Google is based in California, the suit ended up in the Ninth Circuit.  PragerU lost in the district court and, on Wednesday, the Ninth Circuit affirmed that ruling.

Writing for a three-judge panel, Judge M. Margaret McKeown held that "[d]espite 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."

Irritating as it is to agree with the Ninth Circuit, Judge McKeown is probably correct.  The tech giants are not public utilities.  They are private platforms, and people can choose to drop out or switch.  Competing companies can arise and challenge the sites' dominance.

Having said that, though, there are other arguments to be made.  Right now, there exists a law holding that the tech sites are not publishers and cannot be held liable for their decisions about content on their sites (e.g., decisions allowing anti-Semitic hate speech or banning videos about the Bible):

Section 230 of the Communications Decency Act immunizes online platforms for their users' defamatory, fraudulent, or otherwise unlawful content. Congress granted this extraordinary benefit to facilitate "forum[s] for a true diversity of political discourse." This exemption from standard libel law is extremely valuable to the companies that enjoy its protection, such as Google, Facebook, and Twitter, but they only got it because it was assumed that they would operate as impartial, open channels of communication — not curators of acceptable opinion.

Congress should repeal a law that simultaneously allows the sites both to be content editors and to be immune from the repercussions from their content editing.

There's another possibility, inspired by the Civil Rights Act of 1964.  That act held that all Americans must have equal access to "public accommodations," meaning privately owned hotels and relating lodging places, restaurants and related food retailers, and movie houses and related public event venues.  Obviously, social media sites are not contemplated under the act.

Tech giants, though, have become a public accommodation for ideas.  They are the tech equivalent of the old-time public square.  In the modern marketplace of ideas, people place their messages on social media.  In 2020, these outlets have a virtual monopoly on the dissemination of information and ideas.

That there are several different entities in the world of social media and search engines — Facebook, Twitter, Bing, Google, etc. — does not change their monopolistic nature, because they all pull in the same harness.  They are guided by and employ people who have identical cultural and political values.  They are ideological bigots, every bit as hate-filled and narrow-minded as the old-time Jim Crow Southerners who closed their businesses to people because of their skin color.

While the Constitution did not talk about privately owned public accommodations, its underlying premises were enough to legitimize legislation ensuring that all Americans had equal access to those accommodations.  What the Constitution does focus on is the world of ideas.  That's what the First Amendment is all about.

Today's censorious tech giants, rather than retailing accommodations are in the business of selling and re-selling ideas.  If they use their prejudices to bar classes of people, their monopolistic status means that the targeted class is out in the ideological cold.

If the government can break up monopolies in oil, in transport, in lodging, and in dining, it's inconceivable that it cannot break up a monopoly on the most important thing that matters: the free exchange of ideas and information.  Indeed, one should not even need a law equivalent to the Civil Rights Act.  Because the Constitution is about the spread of ideas, and because the tech giants are impairing the 21st-century method of spreading ideas, their behavior is a prima facie violation of the Constitution that can be stopped without legislation.

The Left fears Dennis Prager's five-minute PragerU videos, which use experts, facts, and good writing to counter the overwhelmingly leftist spin in today's education, news, and entertainment.  Google, which owns YouTube, has therefore tried to censor PragerU videos by demonetizing them and by marking many as restricted, a label associated with violent or offensive content.  Among the videos getting this designation are those discussing the virtues of the Ten Commandments.  "Restricted" videos are hidden in general searches and are blocked in schools.

Dennis Prager sued Google for violating the First Amendment, relying on a theory that the platform is so all-encompassing that it has become the equivalent of a public utility.  Because Google is based in California, the suit ended up in the Ninth Circuit.  PragerU lost in the district court and, on Wednesday, the Ninth Circuit affirmed that ruling.

Writing for a three-judge panel, Judge M. Margaret McKeown held that "[d]espite 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."

Irritating as it is to agree with the Ninth Circuit, Judge McKeown is probably correct.  The tech giants are not public utilities.  They are private platforms, and people can choose to drop out or switch.  Competing companies can arise and challenge the sites' dominance.

Having said that, though, there are other arguments to be made.  Right now, there exists a law holding that the tech sites are not publishers and cannot be held liable for their decisions about content on their sites (e.g., decisions allowing anti-Semitic hate speech or banning videos about the Bible):

Section 230 of the Communications Decency Act immunizes online platforms for their users' defamatory, fraudulent, or otherwise unlawful content. Congress granted this extraordinary benefit to facilitate "forum[s] for a true diversity of political discourse." This exemption from standard libel law is extremely valuable to the companies that enjoy its protection, such as Google, Facebook, and Twitter, but they only got it because it was assumed that they would operate as impartial, open channels of communication — not curators of acceptable opinion.

Congress should repeal a law that simultaneously allows the sites both to be content editors and to be immune from the repercussions from their content editing.

There's another possibility, inspired by the Civil Rights Act of 1964.  That act held that all Americans must have equal access to "public accommodations," meaning privately owned hotels and relating lodging places, restaurants and related food retailers, and movie houses and related public event venues.  Obviously, social media sites are not contemplated under the act.

Tech giants, though, have become a public accommodation for ideas.  They are the tech equivalent of the old-time public square.  In the modern marketplace of ideas, people place their messages on social media.  In 2020, these outlets have a virtual monopoly on the dissemination of information and ideas.

That there are several different entities in the world of social media and search engines — Facebook, Twitter, Bing, Google, etc. — does not change their monopolistic nature, because they all pull in the same harness.  They are guided by and employ people who have identical cultural and political values.  They are ideological bigots, every bit as hate-filled and narrow-minded as the old-time Jim Crow Southerners who closed their businesses to people because of their skin color.

While the Constitution did not talk about privately owned public accommodations, its underlying premises were enough to legitimize legislation ensuring that all Americans had equal access to those accommodations.  What the Constitution does focus on is the world of ideas.  That's what the First Amendment is all about.

Today's censorious tech giants, rather than retailing accommodations are in the business of selling and re-selling ideas.  If they use their prejudices to bar classes of people, their monopolistic status means that the targeted class is out in the ideological cold.

If the government can break up monopolies in oil, in transport, in lodging, and in dining, it's inconceivable that it cannot break up a monopoly on the most important thing that matters: the free exchange of ideas and information.  Indeed, one should not even need a law equivalent to the Civil Rights Act.  Because the Constitution is about the spread of ideas, and because the tech giants are impairing the 21st-century method of spreading ideas, their behavior is a prima facie violation of the Constitution that can be stopped without legislation.