The case is Prager University v. Google et. al. (9th Cir., Feb. 26). The issue raised in the case is whether YouTube’s ubiquity and its role as a public-facing platform render it a public forum governed by law of the First Amendment.
In an opinion for a three-judge panel, Ninth Circuit judge Margaret McKeown drew on the Supreme Court's opinion in Manhattan Community Access Corp. v. Halleck (2019), wherein it declared that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” The court thus held that the use of the Internet does not alter this state action requirement of the First Amendment, hence YouTube could not be designated a state actor because it performs a public function. Here are a few excerpts from the opinion:
Using private property as a forum for public discourse is nothing new. Long before the Internet, people posted announcements on neighborhood bulletin boards, debated weighty issues in coffee houses, and shouted each other down in community theaters. Juxtaposed with today’s digital platforms, these analog means seem quaint.
YouTube Facts & Figures
YouTube, LLC alone has more than 1.3 billion users—more than 30 million visitors every day—and 400 hours of video uploaded every hour.
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. Prager University (“PragerU”) sees things differently and claims YouTube’s outsize power to moderate user content is a threat to the fair dissemination of “conservative viewpoints and perspectives on public issues,” and that YouTube has become a public forum. . . .
YouTube hosts user-generated videos and related content on its eponymous platform. YouTube is “the world’s largest forum in which the public may post and watch video based content.” Around 400 hours of video content are uploaded to the platform hourly. Indeed, “more video content has been uploaded” to YouTube “than has been created by the major U.S. television networks in 30 years.” “[M]ore than 500 million hours” of those videos are watched each day.
Twenty years ago, in the early years of litigation involving the Internet, we held that a private entity hosting speech on the Internet is not a state actor. We concluded that America Online (“AOL”)—a service that provided, among other things, internet service, web portal, and emails—was not “an instrument or agent of the government.” Howard v. Am. Online Inc., 208 F.3d 741, 754 (9th Cir. 2000).
Public Function Analysis
In an effort to distinguish controlling precedent, PragerU argues that YouTube is a state actor because it performs a public function. It is true that a private entity may be deemed a state actor when it conducts a public function, but the relevant function “must be both traditionally and exclusively governmental.” Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002). This test is difficult to meet. It is “not enough” that the relevant function is something that a government has “exercised ... in the past, or still does” or “that the function serves the public good or the public interest in some way.”
Rather, the relevant function must have been “traditionally the exclusive prerogative of the [s]tate.” Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (internal quotation marks omitted). Indeed, “[w]hile many functions have been traditionally performed by governments,” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978), the lean list of the “very few” recognized public functions includes “running elections,” “operating a company town,” and not much else, Halleck, 139 S.Ct. at 1929
The relevant function performed by YouTube—hosting speech on a private platform—is hardly “an activity that only governmental entities have traditionally performed.” Halleck, 139 S.Ct. at 1930. Private parties like “[g]rocery stores” and “[c]omedy clubs” have “open[ed] their property for speech.” Id. YouTube does not perform a public function by inviting public discourse on its property. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Lloyd Corp., 407 U.S. at 569. Otherwise “every retail and service establishment in the country” would be bound by constitutional norms.
'[N]ovel opt-in theory'
PragerU’s attempt to foist a “public forum” label on YouTube by claiming that YouTube declared itself a public forum also fails. YouTube’s representation that it is committed to freedom of expression, or a single statement made by its executive before a congressional committee that she considers YouTube to be a “neutral public fora,” cannot somehow convert private property into a public forum. Whether a property is a public forum is not a matter of election by a private entity. We decline to subscribe to PragerU’s novel opt-in theory of the First Amendment.
'[T]he sky will fall' arguments
Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment.
- Steven Overly, Federal court rejects Gabbard's bias suit against Google, Politico (03-04-20)
First Amendment Floral Design Case Still on Supreme Court's Docket
The case is Arlene’s Flowers Inc. v. Washington. The issues raised in the case according to SCOTUSBlog are "(1) Whether a state violates a floral designer’s First Amendment rights to free exercise and free speech by forcing her to take part in and create custom floral art celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the free exercise clause’s prohibition on religious hostility applies to the executive branch."
The case has been distributed for conference four times.
→ Kristen K. Waggoner is the counsel of record for the petitioner.
Robson on Oral Arguments in United States v. Sineneng-Smith
The Court heard oral argument in United States v. Sineneng-Smith involving the constitutionality of 8 U.S.C.§ 1324(a)(1)(A)(iv). The statute makes it a crime for any person who
encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.
The Ninth Circuit held that this subsection "criminalizes a substantial amount of protected expression in relation to the statute’s narrow legitimate sweep; thus, we hold that it is unconstitutionally overbroad in violation of the First Amendment."
The oral argument before the Supreme Court on certiorari was a criss-crossing of the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute. . . .
The argument returned several times to an amicus brief filed by Professor Eugene Volokh in support of neither party. Volokh contended that the Court should recognize that the line between protected abstract advocacy and unprotected solicitation must turn on specificity, and that
because the premise of the solicitation exception is that solicitation is conduct integral to the commission of a crime, only solicitation of criminal conduct can be made criminal consistently with the First Amendment. Solicitation of merely civilly punishable conduct cannot be made criminal, though it can be punished civilly.
(emphasis in original). It was this issue — that the undocumented person could be merely civilly liable while the person who "encourages or induces" the action of staying would be criminally prosecuted — that seemed to cause some consternation amongst the Justices. Justice Alito raised the encouraging suicide hypothetical:
There's a teenager who's — who has been very seriously bullied and is very depressed and is thinking of committing suicide. The teenager has a gun in his hand. He calls up the one person he thinks is his friend and he says, I'm thinking of killing myself. And the person on the other end of the line says, you've said this before, I'm tired of hearing this from you, you never follow through, you're a coward, why don't you just do it, I encourage you to pull the trigger.
Now is that protected by the First Amendment? Is that speech protected by the First Amendment? Attempting to commit suicide is not a crime.
Municipal Court’s Rules Violate First Amendment
This from First Amendment Watch:
The Philadelphia Municipal Court may have to change their restrictions around audio-recording in court hearings after a federal judge ruled on February 25th that their current rules violate the First Amendment.
The decision stems from a lawsuit filed in July by the Institute for Constitutional Advocacy at Georgetown University Law Center and the law firm Ballard Spahr on behalf of the Philadelphia Bail Fund, a nonprofit group that regularly issues reports and analyses regarding the working of Philadelphia’s bail system.
→ Federal District Court opinion here.
→ Complaint here.
→ Lead counsel for Plaintiffs: Michael Berry.
Andrew Napolitano on Prosecution of Julian Assange
- Andrew Napolitano, "Prosecution of WikiLeaks’ Julian Assange Violates First Amendment," Fox News (Feb. 27)
Just as in the Pentagon Papers revelations, neither the Obama nor the Trump administration has questioned the truthfulness of the WikiLeaks publication – even though they revealed murderous wrongdoing, duplicity at the highest levels of government and the names of American intelligence sources (which some mainstream publications declined to make known).
Assange fears that he cannot get a fair trial in the United States. The government says he can and will. When the government suddenly became interested in fair trials remains a mystery. Yet, arguments about fairness miss the point of this lawless prosecution. A journalist is a gatherer and disseminator of facts and opinions. The government's argument that because he communicated with Manning and helped Manning get the data into WikiLeaks' hands, Assange somehow crossed the line from protected behavior to criminal activity shows a pitiful antipathy to personal freedom.
Democracy dies in darkness. The press is the eyes and ears of an informed public. And those eyes and ears need a nose, so to speak. They need breathing room. It is the height of naiveté to think that Ellsberg just dropped off the Pentagon Papers at the Times and the Post, without some coordination with those publications – coordination that the courts assume exist and implicitly protect.
Proposed Hawaii House Bill to Expand Rights of Student Journalists
In relevant part, Hawaii House Bill #1529HD2 provides:
The legislature finds that states may enhance the protections guaranteed by the First Amendment of the United States Constitution through state laws and regulations. The legislature further finds that student journalists attending Hawaii public schools need additional protection against censorship.
The purpose of this Act is to establish the Hawaii Student Free Expression Act to allow student journalists at public schools to exercise freedom of speech and freedom of the press in school-sponsored media. . . .
(e) There shall be no prior restraint of material prepared for school-sponsored media except insofar as it violates this section. School officials shall have the burden of showing justification without undue delay prior to a limitation of student expression under this section. If the prescribed time for review elapses without a decision, the material prepared for school-sponsored media shall be considered authorized.
(f) No publication or other expression of material by student journalists in the exercise of rights under this section shall be deemed to be an expression of the public school, board, or department. No state agency, member of the board, officer of the department, or employee of any agency or the board shall be held responsible in any civil or criminal action for the publication or other expression of material by student journalists in the exercise of rights under this section.
(g) A student media advisor shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for Acting to protect a student journalist engaged in conduct protected under this section; or Refusing to infringe on conduct that is protected by this section.
Trump Re-Election Campaign Sues NYT for Libel
- "President Trump’s Re-Election Campaign Sues The New York Times Over an Opinion Piece," First Amendment Watch (Feb. 27)
President Donald Trump’s re-election campaign filed a defamation suit against The New York Times, claiming that an opinion piece published in March 2019 falsely accused his campaign of colluding with Russia in order to undermine the 2016 presidential election.
Written by Max Frankel, a former executive editor for the Times, the opinion piece was published just before the release of a report by the FBI’s special counsel about Russain interference in the 2016 United States elections. In it, Frankel wrote about the long relationship between Trump’s inner circle and Russian officials, concluding that there was “no need for a detailed collusion” because there had long existed an “overarching agreement” between Trump and Russia that the latter would help the campaign against Hillary Clinton in exchange for a more friendly U.S.–Russia foreign policy.
Filed in New York’s Supreme Court on February 25th, the complaint alleges that there was no collusion between Trump’s campaign and the Russian government, and that the newspaper knew this was the case but chose to publish the essay in order to damage Trump’s reputation.
→ Read the complaint.
- John Nichols, "The President Poses a Clear and Present Danger to the First Amendment," The Nation (Feb. 27)
Abrams on Disclosure
- Floyd Abrams, "Disclosure of Campaign Donors," New York Times (March 1)
You argue that “disclosure is crucial,” and you are not only correct but also in accord with recent Supreme Court rulings.
In case after case, the Supreme Court has rejected objections to such disclosures. . .
To be sure, there are situations in which required public disclosure can lead to dangers to those who contribute to organizations that take unpopular political or social positions and that could thus be subjected to what the Supreme Court has referred to as “economic reprisals or physical threats.”
Upcoming: Cato Event on Section 230
In the past few years, debates about free speech online have become a staple of Washington policy discussions. Concerns over harassment, alleged political bias in Silicon Valley, the spread of extremist content on social media, and the influence of Big Tech on the integrity of elections have prompted a variety of policy proposals and legislation. Meanwhile, social media companies have responded by creating institutions to moderate content on their platforms. The future of online speech governance may lie in California, not DC.
The Cato Institute is hosting Return of the Gatekeepers: Section 230 and the Future of Online Speech, a conference that will address these and other important topics. We hope that you will be able to join us.
Participants will include lawmakers, policy professionals, industry experts, academics, and others.
Date: March 10, 2020 (Tuesday)
9:00 am — Opening Remarks
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
9:05 am — Writing Section 230
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
- Senator Ron Wyden (D‑OR)
- Christopher Cox, Former Representative (R‑CA)
10:10 am — Panel 1: The Future (and Past) of Content Moderation
- Jessica Ashooh, Director of Policy, Reddit
- Flemming Rose, Senior Fellow, Cato Institute
- Alex Feerst, General Counsel, Neuralink
- Moderated by John Samples, Vice President, Cato Institute
11:15 am — Panel 2: Bias in the Valley: Do Allegation of Political Censorship Justify 230 Reform?
- Adam Candeub, Professor of Law, Michigan State University
- Eric Goldman, Professor of Law, Santa Clara University
- Craig Parshall, Special Counsel for Government Affairs, American Center for Law and Justice
- Ashkhen Kazaryan, Director of Civil Liberties and Legal Research Fellow, TechFreedom
- Moderated by Julian Sanchez, Senior Fellow, Cato Institute
1:05 pm — Panel 3: Content Moderation Without Government
- Kate Klonick, Assistant Professor of Law, St. John’s University
- Jacob Mchangama, Director, Justitia
- Evelyn Aswad, Professor, The University of Oklahoma College of Law
- Moderated by John Samples, Vice President, Cato Institute
2:10 pm — Panel 4: Tackling Abuse and Extremism
- Cathy Gellis, Digital Age Defense
- Jeff Kosseff, Assistant Professor of Cybersecurity Law, United States Naval Academy’s Cyber Science Department
- Alan Butler, General Counsel at EPIC
- Moderated by William Duffield, Research Associate, Cato Institute
3:00 pm Closing Remarks
- Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute
Volokh Conspiracy Podcast
- Stewart Baker, "Will the First Amendment Kill Free Speech in America?: Episode 302 of the Cyberlaw Podcast," The Volokh Conspiracy (March 3)
This episode features a lively (and – fair warning – long) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford University's Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users' speech online, and pretty much no one has both authority and an interest in fostering free-speech values. The ironies abound: Conservatives may be discriminated against, but so are Black Lives Matter activists. In fact, it looks to me as though any group that doesn't think it's the victim of biased content moderation would be well advised to scream as loudly as possible about censorship anyway for fear of losing the victimization sweepstakes.
Feeling a little like a carny at the sideshow, I serve up one solution for biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing to allow real transparency, and the government may have a first amendment problem forcing companies to disclose how they make their moderation decisions. Competition law as a way to encourage multiple curators? It might require a "magic" API, and besides, most users like a moderated Internet experience. Regulation? Only if we want to take First Amendment law back to the heyday of broadcast regulation (which is frankly starting to sound pretty good to me).
The report takes a deep dive into the First Amendment free speech jurisprudence of the Roberts Court, replete with a hyperlinked list of all cases, lawyers who argued them, tallies of majority votes, voting alliances, and topical categories of all of the Court's 54+ opinions (current as of the end of this Term). Excerpt:
More than any previous Supreme Court, the Roberts Court has made First Amendment free speech jurisprudence the centerpiece of constitutional agenda. How has the Roberts Court wielded its constitutional power in this arena? Who are the main players? Who are the non-players? Which line of cases best defines the Court’s judicial philosophy in terms of cases it voted to affirm a free expression claim? And which line of cases is it hostile to affirming such claims? Do liberal-conservative labels have any ongoing meaning in this context? If so, how so? If not, why not? And who are the lawyers most involved in helping to shape the law of free speech in the era of the Roberts Court?
Lawrence Wallace (1932-2020) Famed Supreme Court Lawyer
- Harrison Smith, "Lawrence Wallace, Supreme Court Advocate With a Famous Footnote, Dies at 88," New York Times (Feb. 25)
The lawyer who argued a remarkable 157 cases in the Supreme Court, including an amicus on behalf of the United States in Arkansas Educational Television Commission v. Forbes.
Coming Soon: Book on History of Free Press & Speech
- Wendell Bird, "The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox's Libel Act" (Oxford University Press, March 27)
This book discusses the revolutionary broadening of concepts of freedom of press and freedom of speech in Great Britain and in America in the late eighteenth century, in the period that produced state declarations of rights and then the First Amendment and Fox's Libel Act.
The conventional view of the history of freedoms of press and speech is that the common law since antiquity defined those freedoms narrowly, and that Sir William Blackstone in 1769, and Lord Chief Justice Mansfield in 1770, faithfully summarized the common law in giving a very narrow definition of those freedoms as mere liberty from prior restraint and not liberty from punishment after something was printed or spoken.
This book proposes, to the contrary, that Blackstone carefully selected the narrowest definition that had been suggested in popular essays in the prior seventy years, in order to oppose the growing claims for much broader protections of press and speech. Blackstone misdescribed his summary as an accepted common law definition, which in fact did not exist. A year later, Mansfield inserted a similar definition into the common law for the first time, also misdescribing it as a long-accepted definition, and soon misdescribed the unique rules for prosecuting sedition as having an equally ancient pedigree. Blackstone and Mansfield were not declaring the law as it had long been, but were leading a counter-revolution about the breadth of freedoms of press and speech, and cloaking it as a summary of a narrow common law doctrine that in fact was nonexistent.
That conflict of revolutionary view and counter-revolutionary view continues today. For over a century, a neo-Blackstonian view has been dominant, or at least very influential, among historians. Contrary to those narrow claims, this book concludes that the broad understanding of freedoms of press and speech was the dominant context of the First Amendment and of Fox's Libel Act, and that it enjoyed greater historical support.
Forthcoming Book on Censorship
- Mickey Huff & Andy Lee Roth, eds., "Project Censored's State of the Free Press 2021" (Seven Stories Press, Dec. 1, 2019)
- David L. Hudson, Jr., "6th Circuit: Sports Radio Commentary About Referee in Kentucky Wildcats Game Protected by First Amendment," The Free Speech Center (March 2)
- "Federal Court Rules CARTA Violated First Amendment Rights of Chattanooga Workers," News 9 ABC (Feb. 28)
- Adam Steinbaugh, "Congressman’s Call for Investigation into University of Arizona Faculty Would, if Granted, Violate the First Amendment," FIRE (Feb. 28)
- Michael McGrady, "Groups Sue California Over 'Gag Law' They Allege Violates the First Amendment," Washington Examiner (Feb. 27)
- David L. Hudson, Jr., "Judge Allows Free Speech Claim to Proceed Regarding Profanity, T-Shirt Message," The Free Speech Center (Feb. 27)
Op-Ed: First Amendment Rights of Colleges
- John Kroger, "The University’s First Amendment Rights," Inside Higher Ed (March 3)
When we talk about the First Amendment and freedom of expression in higher education, our analysis typically focuses on individual rights. We talk about the rights of unpopular speakers to express their views, the rights of students to invite such speakers, the rights of protesters to respond to or disrupt those with whom they disagree, and the rights of faculty members to say or teach without interference. But what about the First Amendment rights of the college or university itself, as an institution? Does a college or university have First Amendment rights in cases like these?
Professor Steve Horwitz discusses faculty self-governance, social change, and free speech in the academy. This lecture was adapted from his book chapter “Meaningful change comes from the shop ﬂoor: Generating, growing, and governing in liberal education” which appeared in the book Liberal Learning and the Art of Self-Governance, edited by Emily Chamlee-Wright. This lecture was delivered on April 20, 2018 at the Institute for Humane Studies at George Mason University.
Dr. Steven G. Horwitz is the Distinguished Professor of Free Enterprise in the Department of Economics in the Miller College of Business at Ball State University in Muncie, IN. He has written extensively on Hayek and Austrian economics, monetary theory and history, and American economic history.
YouTube: Political Cartooning & Free Speech
Tom Bivins, University of Oregon Professor of Journalism and John L. Hulteng Chair in Media Ethics, will explore the intersection of free speech and ethical sensitivity especially as they relate to editorial cartooning. His position as both an ethicist and a cartoonist is that offensive subject matter in cartoons can sometimes be so loud that it drowns out anything else being said. A balance needs to be struck based on the guideline that just because something can be said doesn’t mean it should be said. The First Amendment simply allows you to do so. Your conscience takes over from there.
2019–2020 SCOTUS Term: Free Expression & Related Cases
Opinions or Judgments Handed Down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (argued: Feb 25)
- Carney v. Adams (to be argued: March 25)
- United States Agency for International Development v. Alliance for Open Society International Inc. (to be argued: March 25)
- Barr v. American Association of Political Consultants, Inc. (to be argued: March 22)
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (to be argued: April 28)
- Fulton v. City of Philadelphia (TBD)
- Waronker v. Hempstead Union Free School District
- Schmitt v. LaRose
- Austin v. Illinois
- Fleck v. Wetch
- Reisman v. Associated Faculties of the University of Maine
- National Association for Gun Rights, Inc. v. Mangan
- Institute for Free Speech v. Becerra
- Mckesson v. Doe
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Jarchow v. State Bar of Wisconsin
- Elster v. City of Seattle
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Charter Communications Inc. v. National Association of African American-Owned Media
- Doe 1 v. Federal Election Commission (motion to file cert. petition with sealed filing granted)
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
First Amendment Related
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
First Amendment Related: Cert. Denied
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
Last Scheduled FAN