Judge Sides With YouTube In 'Censorship' Suit By LGBT Content Creators
- by Wendy Davis @wendyndavis, January 11, 2021
Siding with Google, a federal judge has dismissed a lawsuit by lesbian, gay, bisexual and transgender YouTube content creators who said the company violated their First Amendment rights by “censoring” their clips.
In a decision issued Wednesday, U.S. District Court Magistrate Virginia DeMarchi in San Jose ruled that Google and YouTube are “private entities,” as opposed to government officials, and therefore are not bound by the First Amendment's prohibition against restricting speech.
“Plaintiffs do not state a claim ... for violation of the First Amendment because defendants are not state actors,” DeMarchi wrote in a 19-page ruling.
The decision stems from a lawsuit brought in August of 2019 by Divino Group -- which owns GlitterBombTV.com and distributes GNews! via YouTube -- and other lesbian, gay, bisexual and transgender content creators.
They alleged in a class-action complaint that YouTube “censored” them by preventing ads from running in some of their videos, placing age restrictions on clips, and tagging other clips with a “restricted mode” designation -- a setting that allows users to automatically avoid material that depicts sexual activity, drug use, war, crime and other topics aimed at “mature” audiences.
Divino and the others claimed that Google's alleged activity violated their free speech rights, as well as California civil rights laws against discrimination based on sexual orientation. The lawsuit also alleged Google's decision to put a “restricted mode” label on videos amounted to a form of false advertising.
DeMarchi dismissed the claim that Google violated the users' free speech rights with prejudice -- meaning that Divino and the others can't redraft their complaint and bring that claim again.
She noted in the ruling that a federal appellate court sided with Google last year, in a similar lawsuit brought by Prager University.
DeMarchi also dismissed the false advertising claim and state law claims, but without prejudice. She gave the content creators until January 20 to reformulate those allegations and bring them again.
Okay, a private company, so the charge of censorship of free speech is denied. That's proper: only The State can actual censor free speech, while a company must be free to engage or not engage in a contract.
But wait a minute ....
YouTube/Google et al have been issued immunity for suits against them for hosting libelous content at their "private company." Anyone can "say" anything they wish on YouTube, and YouTube may or may not restrict/deny it, but cannot be sued even if they host criminal (libelous) content.
This "exemption," known as Section 230(c)(2), makes them a de facto goverment agency. They 'are' The State.
If you drill down into that section, you'll see it is couched in the POV 'protected from action if they decide to deny or remove' content. In fact it is actually 'protected from action if they do not remove lies.'
1) They are not "defacto" the state. It is exactly what it says. The intent was that websites which host or make available content GENERATED BY USERS cannot be liable for the content created by the 3rd party (i.e users).
a)According to a Reuters articl, "This largely exempts them from liability involving content posted by users, although they can be held liable for content that violates criminal or intellectual property law."
So, the law is very reasonable as it stands.
2) The "problem" many people have is that their platforms can let users communicate with other users based on legal speech such as lies and consipiracy theories or hate speech. Their decisions on that come down to purely arbitrary decisions they can make on how they want to allow users to share user-generated content.
I would say the minimum legal standard the government could ever enforce is if they host and allow the spread of illegal speech (libel, slander, criminal content such as child pornography or stolen IP, etc.) once they become aware of it.
But, they can choose to go further in restricting content on their own, which is what has happened with the current President's social media account on Twitter, as an example.