When Dennis Prager saw a pattern of YouTube labeling the education videos for his “Prager U” YouTube channel as “restricted,” the conservative talk-show host smelled a rat. The videos aim to provide young adults a “conservative” take on many of the political and cultural issues of the day, and have been wildly popular, with many receiving more than 1 million views.
The “restricted” label, a designation typically used to label videos involving sex, drugs, or violence, meant that many of the Prager U videos could not be accessed at schools or libraries and were excluded from search results.
Ultimately, Prager U filed a lawsuit against YouTube and its parent company Google, alleging this censorship violated Prager U’s First Amendment rights. After losing in the district court, Prager U appealed to the Ninth Circuit.
On Feb. 26, 2020, the Ninth Circuit issued its ruling in Prager University v. Google LLC, rejecting Prager U’s claims based on the “state action” doctrine, which holds that only censorship by government actions violates the First Amendment. Most of Prager U’s arguments were rejected by a Supreme Court decision involving a public access channel that was issued after Prager U had filed its appeal, Manhattan Community Access Corp. v. Halleck (June 17, 2019).
Quoting that opinion, the Ninth Circuit explained, “merely hosting speech by others is not a traditional, exclusive public function [of government] and does not alone transform private entities into state actors subject to First Amendment constraints.”
When Prager U decided to use the courts to impose First Amendment restrictions on YouTube, it was pursuing the “wrong” solution, so the Ninth Circuit’s decision is hardly a surprise. But Prager U is far from alone. There is a “right” way to address the problem of censorship on social media, but almost no one is talking about it. Instead, most people are proposing courses of action that actually threaten free speech.
You are wrong if you think there is no biased censoring on social media. But if you think the bias is just against conservatives, you are also wrong.
Social media censorship affects liberal pundits criticizing military adventurism just as badly as it affects conservatives advocating against political correctness. Pundits who promote heterodox views that have been labeled “conspiracy theories” face more draconian censorship than any traditional conservative or liberal political pundit. The bias in social media censorship is against certain disfavored viewpoints, regardless of where those viewpoints fall on the political spectrum.
Yes, social media companies do infringe on free speech rights when they censor creators based on the viewpoints they express. The right to free speech is an inherent right that is merely codified in part in the First Amendment. While private censorship by social media companies does not violate the First Amendment, it still infringes on creators’ free speech rights. And it is a legitimate function of government to adopt regulations to protect the free speech rights of creators.
But you are wrong if you think free speech rights can be protected by government regulations that prohibit social media companies from censoring based on viewpoint. This is because social media companies have the same First Amendment rights as everyone else, which includes the right to control what speech they want to promote or censor.
Social media companies cannot be forced to give a platform to unwanted creators on the grounds that they are only “platforms,” not traditional “publishers.” In January 2019, the Supreme Court ruled that a media platform has the same First Amendment right to censor creators that publishers have to select what articles they publish.
You are also wrong if you think that the government should stop social media companies for bias and censorship because social media companies are effectively “utilities” or otherwise exercise monopoly-like control over speech online. The Supreme Court has held that regulations governing traditional utility companies cannot be used to force those companies to convey ideological messages, and anti-trust regulations cannot justify suppressing political speech.
While Prager U and nearly everyone else has gotten something wrong about online censorship, Prager U and many others are right that there is a role for government in addressing this issue. Government is powerless to address the problem of viewpoint censorship on social media platforms. The right way to reduce social media censorship is to adopt regulations that require social media companies to provide creators with “due process” protections.
For example, social media companies could be required to adopt clear and enforceable censorship rules in their terms of service. Social media companies would still retain their First Amendment rights to determine what those censorship rules are going to be, as long as they do so in clear and enforceable rules. Moreover, these “viewpoint neutral” regulations are easily justifiable as a reasonable tradeoff for the benefits social media companies enjoy under Section 230 of the Communications Decency Act.
Due process protections would remedy the primary plea that creators from every spectrum of the political compass—from Prager U to Steven Crowder to Tim Pool to David Packman—have voiced: “just tell us the rules.” By requiring social media companies to give users “fair notice” of the rules governing censorship and by making those rules enforceable, it will also effectively prohibit practices like shadowbanning and other forms of “secret” censorship.
Collectively, vague or unwritten rules and secret censorship are by far the biggest threat to free speech because they create a chilling effect where speakers have to self-censor in order to ensure that their speech reaches the intended audience. That’s where free speech advocates should focus their efforts.