Appearances Do Not An Electronic Public Square Make: Ninth Circuit Rejects Assertion that First Amendment Applies to YouTube

Prager University v. Google LLC f/k/a Google Inc. and YouTube, LLC, No. 18-15712.  February 26, 2020.


Like the universe, the internet and its multiple platforms appear to be ever-expanding, even as the law of this new domain runs to catch up with novel features and equally novel claims.  The development of largely open online platforms upon which all and sundry may present their ideas, including their video recordings, gave rise to this suit. Prager University (“PragerU”), an informational resource which is not a true university, presents video discussions about politically conservative ideas.   

PragerU has objected to YouTube’s classification of its content as subject to YouTube’s “restricted” setting and to YouTube’s concomitant limitation on some of PragerU’s advertising.  The “restricted” setting is a user driven device which permits filtering content that some may see as objectionable. YouTube manages the classifications of content. Content providers who object to YouTube’s restricted classification may appeal, but the factors involved in classification and the reasons for decisions remain internal to YouTube.

PragerU has argued that YouTube is subject to the First Amendment because YouTube acts as an electronic public square.  Much as with traditional public squares, speech must be on a come one, come all basis, without hindrance by the platform provider. As such, PragerU has insisted, YouTube’s limitations on the visibility of PragerU’s content violate its First Amendment rights.

Not so, says a panel of Ninth Circuit justices, relying on an observation from the Supreme Court’s last term that the mere hosting of another’s speech will not make a private entity public.  Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).  

The First Amendment constrains only the government.  PragerU’s argument that YouTube has assumed a traditionally and exclusively governmental function falls far short of the mark. Inviting the public to avail itself of private property will not make a private property holder a state actor.  Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972).  

Unlike the government, which is forbidden by the First Amendment from interfering in citizens’ speech, a private entity may do as it pleases, notwithstanding that its choices may at times displease.  

The panel also rejected PragerU’s assertion that YouTube’s terms of use constituted false advertising in violation of the Lanham Act.  If this were so, the court observed, any agreement could be transformed into marketing material.

Finally, the Ninth Circuit refused to recognize any binding effect to YouTube’s public pronouncement that it aspires to uphold First Amendment principles.  Notwithstanding its legal tone, this statement was mere opinion.  More importantly, there is no “opt-in” feature that would allow a private actor to become a state actor by force of its own will.

JustLawful prognostication:  This decision will not end this matter.  There is simply too much speech at stake and too few platforms of YouTube’s scope to think otherwise.  This is not to suggest that the Ninth Circuit is incorrect, but that further exploration of these issues is expected.  This is particularly so where, as the Ninth Circuit noted, both parties offered that were the court to rule against them, the sky would surely fall (Slip. Op., pp. 13-14).  

Prager University v. Google 9th Cir. February 26 2020

 

Viral Publication and Opinion in a Divided Nation: CNN Settles with High School Student Said to Have Been Defamed by Broadcast of Video of Confrontation with Native American Protester on the National Mall

Sandmann v. Cable News Network, et al., No. 2:19-cv-00031 (E.D. Ky.).  Related matter:  Sandmann v. Washington Post Company, No. 2:19-cv-00019 (E.D. Ky.)


Nicholas Sandmann visited the National Mall on January 18, 2019, joining with fellow Catholic High School students in a March for Life event.  There Sandmann was confronted, face to face, by Nathan Phillips, a Native American participating in a separate event, subsequent to what appears to have been a series of taunts exchanged among protest groups. 

The video confrontation, published nationally by mainstream media, including Cable News Network (CNN), precipitated officials, news commentators, church officials, and others to characterize Sandmann, shown in a “MAGA” (“Make America Great Again”) hat, a symbol of the current executive administration, as a racist. 

Sandmann filed complaints against several media entities separately, two of which, against the Washington Post Company and CNN, have been assigned to the same senior federal judge in the Eastern District of Kentucky.  

Following dismissal with prejudice of the complaint against the Washington Post, Sandmann was granted reconsideration which set aside the dismissal in part and granted Sandmann leave to amend his complaint against the Washington Post.  

In October, 2019, CNN’s motion was denied to dismiss and Sandmann’s motion to amend his complaint were granted. 

A proposed discovery and pretrial schedule was submitted to the court in the Eastern District of Kentucky in both cases on  January 3, 2020. The parties to the CNN case reported publicly on January 7, 2020 that settlement with CNN without trial, on undisclosed terms, had been reached. 

Whether the settlement signals a change of course among other media defendants will likely unfold in the not distant future. 

Notwithstanding — and perhaps particularly in light of — the rhetoric accompanying this case, the legal issues, while well grounded in history, seem to call for particular examination in the age of instant worldwide publication and the simultaneous formation of opinions.  Whether a matter is one of fact, and therefore actionable in defamation, or of opinion, and therefore not, is a longstanding principle. Whether this is changed or modified or subject to new refinement in the age of instant worldwide transmittal and simultaneous formation and publication of opinions remains to be seen.

CNN’s account of the settlement may be found at:

CNN Settles Lawsuit Stemming from Viral Video Controversy

The opinion dismissing Sandmann’s initial complaint against the Washington Post, of some historic note, may be found here:

2019 07 26 Sandmann v. WP Company__Memorandum and Order Granting Motion to Dismiss

Not Without Merit: Federal Court in New York Allows Student Accused of Sexual Assault to Proceed with Defamation Case

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.)  Motion to Dismiss denied September 27, 2019.


Alex Goldman and Katherine Reddington were students at Syracuse University whose overnight encounter following a party ended with Reddington sensing that something had gone awry, although she had no recollection of assault until after psychotherapy months later.  Reddington obtained a physical examination which produced no evidence of assault. The district attorney declined prosecution for lack of evidence.  

However, Syracuse University took note of Reddington’s Title IX allegations and expelled Goldman, who subsequently enrolled in another university and sought employment with an engineering firm.

Goldman’s complaint states that Reddington boasted of succeeding in her case against Goldman on campus at Syracuse and online, and that she either posted or republished online comments calling him a ‘monster.’  Those comments, which attracted attention and public commentary, were tagged to Goldman’s new school and employer.

Goldman was summarily fired from his job.

The United States District Court for the Eastern District of New York has rejected Reddington’s argument that Goldman failed to plead facts sufficient to establish defamation or tortious interference with business relations and declined to address Reddington’s argument that an injunction against further commentary would violate her First Amendment rights, as a motion to dismiss addresses the complaint and not the remedies sought.  

The court did not agree with Reddington’s defense that she had offered non-actionable opinion about Goldman where that opinion was premised upon defamatory accusations of criminal conduct.  

Reddington’s tagging or republication of online posts she claims did not originate with her are not insulated from liability, the court held, for republication of defamatory material is itself actionable. 

Moreover, Goldman could go forward on his claim of tortious interference with business relationships as the claim can be premised on defamation.

Goldman v. Reddington, No. 18-cv-3662 (E.D.N.Y.) September 27, 2019

 

Ninth Circuit Asked to Reverse Dismissal of Complaint Alleging YouTube Is a Modern Public Square Subject to First Amendment Constraints Applicable to Government Entities

Prager University  v. Google, LLC and YouTube, LLC, No. 18-15712 (9th Cir.) Oral argument held August 27, 2019.  


Prager University (“PragerU”) is not a degree granting institution but an online forum for conservative thought which is often presented in short video presentations.  

Prager University has asked the Ninth Circuit Court of Appeals to reverse dismissal of its claim that YouTube LLC,  an internet platform wholly owned by Google, LLC that permits uploading of user video content, violates the First Amendment in its administration of the platform.  PragerU asserts that YouTube erred in removing some Prager University videos from view through YouTube’s user controlled “Restricted Mode.”  

As YouTube Looks and Acts Like a Government, YouTube Must Conform to First Amendment Constraints.  PragerU alleges that YouTube, which dominates the market for such platforms, has created and invited participation in a public forum and accordingly must be bound by the same constraints applicable to government entities by the First Amendment.  As the online equivalent of the public square, through its invitation and subsequent curation of its content, YouTube is engaged in state action subject to First Amendment limitations.  

PragerU objects not only to YouTube’s failure to conform itself to constitutional commands, but also to what it perceives to be unfair competition and devaluation of its product, as where its posts are inaccessible, advertisers will not work with PragerU, and revenues will be lost.  

Ownership Includes Discretion to Manage but Curation Does not a State Actor Make. YouTube asserts that in selecting sites suitable for viewer controlled discretion, YouTube  is properly exercising its own First Amendment rights as a private corporation.  

YouTube asserts that its invitation to the public to participate in an open viewer and content provider driven forum will not transform YouTube into a government entity engaged in state action.  

YouTube can, the corporation insists, be both open and retain a capacity to manage content postings according to its internal guidance and by agreement with users.  

YouTube denies that it is engaged in any behavior traditionally and exclusively reserved to government.  

YouTube stresses that to adopt PragerU’s position would be to upend platform and user behavior on the internet in unmanageable and undesirable ways, both practically and as a matter of legal analysis.

Impact as Envisioned by Industry and Advocacy Leaders.  The Electronic Frontier Foundation (“EFF”), which advocates for issues arising in new technology, argues as amicus that user interests will not be served by removing the First Amendment protections enjoyed by platforms and imposing upon them the constraints inhibiting government interference with speech.  

The EFF notes that there would be no conceivable ‘cure’ for the issues that would arise if open forums such as YouTube were deemed to be public forums.  Permitting moderation and curation would only shift review standards from those applied to public forums to those applied to limited public forums. Legal analysis would be impossible, as corporations are not involved in serving compelling state interests.  

The EFF disputes the central argument made by PragerU and asks the Ninth Circuit to recognize that the curation of user or content provider speech is not an inherently governmental function sufficient to support a finding that the YouTube platform is engaged in state action.

Moreover, the EFF stresses that Section 230 of the Communications Decency Act of 1996 (“Section 230”) insulates platform providers from liability to third parties for user generated content and from liability to content providers for rejecting, blocking or removing content.  

Concerns About Platform Providers’ Behavior are Legitimate and Must Be Addressed.  The EFF recognizes the importance of concerns about inequitable conduct by platform providers and notes the seriousness of claims that providers have banned or removed content without justification to the detriment of users and content providers.  The EFF notes that society in general benefits from freedom from speech suppression even if some speech provokes discomfort.

The EFF urges that YouTube and other platforms adopt a human rights frame of reference in curating content. It is most important that users have an active role in moderation and that providers behave with accountability and transparency.  Providers should publish data about what it removes, be clear in its user agreements and guidance, and permit appeals from adverse determinations.

Self-Governance, If Assured, Must be Assiduously Pursued.  The EFF cautions that it is not enough that YouTube may retain the right to permit or circumscribe content according to its standards:  it must make an effort to do so diligently. 

The End of the Internet. The Computer and Communications Industry Association (“CCIA”) as amicus urges the Ninth Circuit to reject the notion that YouTube became a public forum or a government or government controlled entity because of YouTube’s encouragement of free expression.  That encouragement is not unlimited and is cabined by YouTube’s Terms of Service and Community Guidelines. YouTube’s curation and moderation does not make it a state actor, as it does not behave as or provide a service ordinarily supplied by the government.

The CCIA cautions against the adverse impact of subjecting online platforms to First Amendment Constraints rather that permitting the platforms to enjoy First Amendment protections.  The internet as it now functions would be markedly diminished by the application of the state actor doctrine, as substantial content removal would be required and publication of all but unprotected speech would be required in open forums. 

Contrary to PragerU’s arguments, PragerU cannot succeed establishing that what YouTube does is an activity traditionally and exclusively reserved to the state, for no such activity has ever existed before.  

Neither can PragerU succeed in asserting that any content regulation on what PragerU defines as a public forum will make YouTube a state actor if YouTube is not operating a public forum at all. 

This crucial (if not fatal) circularity cannot be overcome by reliance on precedent in which status as a public forum was not in issue.  Equally importantly, PragerU cannot succeed in relying on on the “company town” holding of Marsh v. Alabama, 326 U.S. 501 (1946), as almost all subsequent considerations of Marsh have limited its holding to those few circumstances in which a private entity essentially functions as a government.  

Neither can “company town” status be found to exist through the words YouTube chooses to hold itself out to the public.  Self-description or an invitation to the public to participate in open expression will not, without more, work the alchemy of transforming a private entity into a government.  

In point of fact, CCIA suggests, YouTube’s retention of control of material placed on its platforms demonstrates that YouTube’s invitation and representations are not unlimited.

Inapposite Dicta. Recent Supreme Court characterization of the internet as a modern public square is more rhetorical than substantive, and is not helpful to PragerU in that the issue concerned an action taken by the state respecting social media, not social media acting as the state. 

Imposing the Constraints of One First Amendment Premise Would Remove the Protection of the Corollary First Amendment Promise.  CCIA observes that imposition on YouTube of the First Amendment standards imposed on the government would violate the First Amendment protections guaranteed to private entities by the First Amendment.  To do so would cause YouTube to lose almost all its ability to curate its platform, and would eviscerate the protection afforded by Section 230.

Bad for Business. The United States Chamber of Commerce (“Chamber of Commerce”), the nation’s largest business organization, fears that businesses would be harmed by a determination in PragerU’s favor.  Binding businesses to First Amendment constraints is only appropriate where the business performs “traditionally exclusively” government acts, and that is not true here. The First Amendment binds the government, has not been found to bind private entities, and should not be found to do so now.  User run video sharing has never been a state function.  

Marsh is inapposite:  YouTube is not governing a town.  No court has ever held that an entity that opens a space for public expression becomes subject to the restraints imposed on the  government by the First Amendment.  

Upending Application of the Law.  Holding in favor of PragerU would disrupt current First Amendment analysis, which requires that any regulation support a government interest.  Substituting corporate for government interest would impermissibly expand the First Amendment and require analysis of business interests that courts are ill-suited to make.  

Harm to Business Owners Likely if PragerU Prevails.If businesses were required to submit to standards reserved to the government, it is likely that they would move to limit their online market presence, which might not insulate them from liability but which likely would be economically costly.  “Ownership” of a site would not remain with proprietors where users could direct what is posted. This would contravene business owners’ First Amendment rights, not only of speech but of association. Other attempts at limiting exposure, such as limiting activity so as not to be perceived as a public forum, would also likely limit market activity and advertising revenues. 

JustLawful Prognostication.  Although not impossible, it is not probable that a federal appellate court would, of its own accord, enter judgment in PragerU’s favor except if some grounds for reversal and remand could be found.  The issues are simply too big to manage through one case and likely the courts are not the best branch of the government with which to accomplish PragerU’s ends.  

Leaving aside the massive impact a decision in favor of the appellant could provoke, the arguments presented by PragerU may be too expansive to countenance, as PragerU relies on the notion that because YouTube describes itself as an open forum inviting free expression it therefore becomes a public forum for First Amendment purposes.

Prager University v. Google and YouTube Appellant Brief

Prager University v. Google and YouTube Appellee Brief

Prager University v. Google and YouTube Appellant’s Reply Brief

Prager University v. Google and YouTube EFF Amicus Brief

Prager University v. Google and YouTube Computer and Communications Industry Association Amicus Brief

Prager University v. Google and YouTube Chamber of Commerce Amicus Brief

 

Not Who, But What: Supreme Court of Minnesota Shifts Qualified Privilege in Defamation from Speaker to Spoken, Concluding that Commentary on Matters of Public Interest May Enjoy a Qualified Privilege No Matter Who the Speaker Is

Maethner v. Someplace Safe, Inc., No. A17-0998 (Minn. Sup. Ct.)  June 26, 2019.


Plaintiff’s ex-wife and a local domestic violence non-profit included plaintiff’s name, which the ex-wife retained, in online news of her award for involvement in domestic violence advocacy.  Plaintiff was not referenced directly, but lived in an area of close social connections and a relatively small population.

Plaintiff sued both the non-profit and his ex-wife for defamation.  The Supreme Court of Minnesota concluded that damages for emotional harm, standing alone, are not recoverable in defamation because proof of injury to reputation is required.

Recovery for defamation per se cannot be had where First Amendment protections are involved.

The law of defamation provides a qualified privilege to media defendants who may publish without fear unless plaintiff demonstrates actual malice.

Private parties traditionally enjoy no such privilege.

In this case, though, the Minnesota Supreme Court determined that  a distinction between media and private parties ought not remain the core focus of defamation analysis.  The key issue in cases of presumed damages is not the status of the parties but whether the challenged speech concerns matters of public concern.

The court outlined the method of analysis.  Presumed damages may be available if the speech challenged as defamatory per se is not about matters of public concern.  Unless a plaintiff can show actual harm to reputation or actual malice, there can be no recovery for defamation per se for matters not of public concern.

The decision is significant in that it places media and non-media defendants on the same footing for purposes of defamation per se, and offers both some protection where non-malicious statements about matters of public concern are in issue.

The Minnesota Supreme Court declined to impose on the non-profit any duty to investigate plaintiff’s ex-wife’s assertions of domestic violence.  The court rejected the notion that no duty in negligence could ever attach.  Rather, conduct must be evaluated in accordance with what a reasonable person would do in similar circumstances.

The court concluded that the non-profit did not breach any duty to investigate.  The non-profit was not unreasonable in basing its views on its interactions with plaintiff’s ex-wife in the absence of evidence indicating that there was any reason to question her credibility or honesty.

Although custom within the publishing profession may be relevant, custom does not control, because plaintiff offered no proof that a reasonable person would investigate or that non-profit advocates customarily investigate claims of their service recipients.

One justice disagreed with the court’s conclusion that no duty to investigate attached on these facts.  While a qualified privilege may attach to professional discussions such as employee references, credit assessments, or medical evaluations, publication about plaintiff’s ex-wife’s status as a survivor of domestic violence enjoys no such privilege.

Adherence or not to custom or practice is not to be conclusively presumed to constitute “due care,” the dissent noted.

While the dissent acknowledged the concerns  — such as the absence of corroboration in many domestic violence cases — that prompted the non-profit to credit plaintiff’s ex-wife’s assertions, the dissent found equally compelling the principle that plaintiff be afforded a fair hearing.  The court here would impose on plaintiff a duty to show that the party whose statement was believed was not credible, a position which the dissent felt deflects from the core issue of whether investigation needed to be conducted.  Where questions about the non-profit’s conduct exist, judgment as a matter of law was not proper.

While many will be pleased by the leveling of status between media and non-media defendants, much more will likely be in issue in the future concerning whether any duty to investigate exists before a non-media defendant publishes information.

Maethner v. Someplace Safe, Inc. (Minn., 2019)

 

 

 

 

 

 

 

Unprotected: Pennsylvania Superior Court Affirms Sentence for “Lewd” Facebook Posts

Commonwealth v. D’Adderio, J-A06041-19, No. 833 MDA 2018 (Sup. Ct. Pa.)


Kelly Marie D’Adderio was not pleased with an ex-friend’s marriage to her ex-husband.  She posted her views on Facebook for the world to see.  Her posts contained graphic language and expressed pleasure that her ex-husband had cheated on her ex-friend, and made allegations about drug use at her ex-friend’s house, where D’Addario’s children stay.

Ex-friend Maria Memmi’s stepchildren showed her the posts.  Memmi had no Facebook account of her own.  She sought police intervention.

The police were unable to persuade D’Adderio to take down her posts, and more posts ensued.

The state filed a criminal complaint against D’Adderio in June, 2016 and a criminal information charging harassment ensued in March, 2017.

D’Adderio moved unsuccessfully to dismiss the criminal charges, asserting that “lewd” or “lascivious” speech enjoys First Amendment protection.

A jury convicted D’Adderio of harassment.  She was sentenced to a year’s probation, 100 hours of community service not contact with a minor child reference in the posts, and fines and costs.

On notice of appeal, the trial court opined that there existed sufficient evidence to find that appellant posted lewd messages with no communicate purpose with an intent to harass, and opined that the harassment statute is not overbroad.

On appeal, the Superior Court framed the questions for consideration:  1) whether non-obscene but lewd and lascivious speech about but not to another is protected under the federal and state constitutions, and 2) whether the harassment statute is overbroad.

The court observed that the statute prohibits conduct which is not constitutionally protected and which is intended to alarm or annoy.  Lewd language is not synonymous with obscenity, and the issue of whether the speech was to or about Memmi is of no moment, the court concluded.

The U.S. Supreme Court has concluded that epithets and personal abuse fall outside constitutional protection.

D’Adderio’s commentary did not express social beliefs or constitute legitimate comment.

Because the statute in issue requires an intent to harass, it does not capture protected speech in its ambit, and is not, therefore, overly broad, for it does not criminalize legitimately communicative speech.

Commonwealth v. D’Adderio (Pa. Super. Ct., 2019)