Ninth Circuit Tells Disgruntled YouTube Users The Government Didn’t Get Their Accounts Suspended

Content Moderation

from the no-First-Amendment-violations-here dept

Some people just don’t understand social media. Or the Constitution. Or moderation efforts.

Former president Donald Trump is one of those people. Last July, he sued Twitter, Facebook, and YouTube under the theory that the suspension of his accounts was the result of the Biden administration’s direct interference. Because his successor approached social media services to express concerns about the spread of misinformation, Trump claimed the government was directly involved in the moderation of his accounts.

That lawsuit went nowhere fast, dismissed by a federal court less than a year later with a decision that made short work of Trump’s bullshit “state action” argument.

But there are several more social media users out there with the same bad arguments and the same insane interpretation of the “state action” doctrine. While it’s not all that surprising the average lay YouTuber doesn’t understand the intricacies of these issues, it’s somewhat dismaying Trump and his lawyers wasted time and tax dollars lobbing this lawsuit into court.

Unsurprisingly, the lawsuit discussed here involves plaintiffs who not only seem to believe Trump made good arguments in his lawsuit, but most likely believe Trump says good and smart stuff all the time. The end result is the same: an affirmed dismissal and a concise explanation about what’s wrong with these attempts to claim suspended social media accounts are somehow constitutional violations. (via Volokh Conspiracy)

Here’s a quick look at the plaintiffs, via the Ninth Circuit Appeals Court decision [PDF]:

Appellants are fourteen self-described “conservative” content creators who spent years growing their YouTube channels and amassing more than 771 million views. These channels discussed topics such as “Hunter Biden and the Ukraine Scandal,” “the ongoing corruption probe,” “social media censorship,” “race relations or protests in America,” and “anonymous posts on political issues by someone identifying themselves as ‘Q.’”

So, you know, the usual “censored for our conservative views” garbage.

Here’s what happened to the plaintiffs:

Appellants allege that on October 15, 2020, YouTube terminated or suspended Appellants’ channels, claiming that it was “taking another step in [its] efforts to curb hate and harassment by removing more conspiracy theory content used to justify real-world violence.”

Well, the targeted accounts definitely seemed to traffic in conspiracy theories, so this move by YouTube was not at all surprising. Nor was it government action, although the plaintiffs desperately desire it to be.

In their claim for a First Amendment violation, which is the premise for federal court jurisdiction, Appellants asserted that YouTube and Google—the parent company of YouTube—either conspired with the federal government, or were compelled by the federal government, to take down their video content. This, they argue, constitutes an activity akin to state action and supports the assertion of a constitutional claim against a private company for its conduct.

These allegations led to some inadvertent comedy, including the appellants wishing the Ninth Circuit’s Prager University decision said something it doesn’t and, more hilariously, the appellants admitting they’re actually engaged in a Bivens lawsuit[!!!].

Appellants have conceded that they intended to bring their First Amendment claims against Google and YouTube under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which unlike a 42 U.S.C. § 1983 claim, allows for a First Amendment claim to be brought against federal officials.

This is super weird because it’s a cause of action targeting federal officials, but the only defendants listed in this suit are Google and YouTube. If the plaintiffs truly felt the government got their accounts suspended, they probably should have tried to sue the government, rather than these two private companies.

This is the supposed state action the plaintiffs cite in support of their insipid arguments — none of which even suggests the federal government is directly involved in social media moderation efforts.

(1) statements by House Speaker Nancy Pelosi on possibly removing the protection provided to social media platforms under Section 230 of the Communications Decency Act; (2) a letter by Representative Adam Schiff to Google’s CEO and YouTube’s CEO encouraging the curbing of COVID-related misinformation on social media platforms; (3) a statement by Speaker Pelosi at a Georgetown University forum on COVID calling for greater accountability for “the division and the disinformation proliferating online”; (4) the Senate Commerce Committee’s vote to compel the testimony of Google’s CEO regarding content moderation; (5) the House of Representatives’ passage of House Resolution 1154, a non-binding resolution condemning the “QAnon” conspiracy theory, encouraging Americans to “seek information from authoritative sources,” and acknowledging social media platforms efforts to remove “QAnon groups and their content from their platforms”; (6) a Department of Justice antitrust lawsuit against Google for maintaining monopolies in general search services and search advertising; and (7) the questioning of Facebook founder Mark Zuckerberg by the Senate Judiciary Committee concerning programs used to “to coordinate censorship efforts targeting content creators and others who expressed disfavored viewpoints.”

The court points out that only the government can violate their First Amendment rights. The plaintiffs agree, but disagree on the specifics. They claimed YouTube was “compelled” to remove their accounts by the federal government or, if that’s not what happened, then the governance of YouTube is “so entangled” in the actual federal government’s efforts to fight misinformation that there’s no meaningful difference.

The plaintiffs are wrong about everything, the Appeals Court says. The plaintiffs’ compulsion theory suffers from a lack of anything resembling compulsion.

The government actions alleged in the complaint do not meet this standard. The antitrust suit against Google and the Senate Committee testimony of certain CEOs are only tangentially related to YouTube’s content moderation decisions. Moreover, those events, like the acts that are more specifically directed at YouTube—for example, Speaker Pelosi’s and Representative Schiff’s comments— lack force of law, rendering them incapable of coercing YouTube to do much of anything.

On top of that, suing YouTube is the wrong way to handle alleged government compulsion.

Another fundamental problem with Appellants’ compulsion theory is that the state-action doctrine only allows plaintiffs to hold the government liable for a private entity’s conduct and does not support a claim against the private entity itself. Indeed, our precedent precludes such an inversion of liability.

There’s also nothing so intertwined that it could conceivably be considered the government getting its peanut butter in YouTube’s moderation chocolate. A Twitter exchange between Rep. Schiff and YouTube’s CEO isn’t evidence of entanglement. Neither are Speaker Pelosi’s statements about content moderation. The House Resolution was nothing more than a non-binding statement reflecting the government’s concerns about a particularly pernicious source of batshit conspiracy theories. None of this is government entanglement, either separately or when viewed as a whole.

The lawsuit is dismissed. Again. The Appeals Court says the lower court got it right. And it says the plaintiffs can’t hope to get it right by amending their complaint. There’s nothing to sue about here and the court refuses to let the plaintiffs waste any more federal time on this. Permission to amend denied.

While there may be some legitimate concerns the US government is leaning too heavily on social media companies and their moderation efforts, these ones are not. Government officials continue to push legislation that actually violates the First Amendment and undermines Section 230 immunity. Those are the real concerns. A handful of YouTube users offering up a blend of stupidity and conspiracy theories are not the victim of government overreach. They’re just victims of their own creations.

Filed Under: 1st amendment, 9th circuit, content moderation, state action
Companies: youtube