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Social Media, Cancel Culture and the First Amendment

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LOS ANGELES & SAN FRANCISCO www.dailyjournal.com THURSDAY, FEBRUARY 18, 2021 PERSPECTIVE Social media, cancel culture and the First Amendment By Mari K. Rockenstein transform into a state actor un- der the First Amendment just he great deplatform- because it provides a forum for ing of January 2021 public discussion. After all, Ka- will likely be remem- vanaugh argued, private prop- Tbered as the turning point erty owners and private lessees in the battle for control over often open their property for digital speech. Within days of speech, grocery stores put up the attack on the Capitol, for- community bulletin boards mer President Donald Trump and comedy clubs host open was banned or suspended by mic nights. Twitter, Facebook, Instagram, Another challenge to private Snapchat, Twitch and YouTube. entity censorship is whether Stripe stopped processing federal law requires social me- payments for his campaign’s New York Times News Service dia companies to be neutral in website. Reddit banned the r/ moderating content on their DonaldTrump subreddit and Justice Brett Kavanaugh stated that providing sites. CDA Section 230 protects Discord removed the server a forum for public speech is not an activity websites and web users from connected to the pro-Trump exclusive to governmental entities; therefore, third-party content published group TheDonald. win. Shopi- a private entity does not transform into a state on their sites. It also provides fy also took down the online protection from liability for stores for both for the Trump actor under the First Amendment just because it moderating content, includ- campaign and the Trump Or- provides a forum for public discussion. ing deleting posts or banning ganization. an individual for violating its Many of Trump’s most ardent creasing rise of the practice has functions as a state actor and terms and conditions. Many followers met a similar fate. led conservatives to lambast performs a traditional exclu- federal lawmakers claim that After banning Trump from “cancel culture.” The implica- sive public function. As recent- this immunity only applies to its platform, Twitter suspend- tions of deplatforming for free ly as 2019, the court analyzed neutral public forums while ed more than 70,000 accounts speech, however, have wor- whether a private operator of others argue there is nothing in associated with QAnon and ried advocates on both sides of a public access channel func- Section 230 requiring a website the Capitol attacks. After his the issue. Social media critics tioned as a state actor and was to be neutral or public to obtain ban on Twitter, many assumed have argued unsuccessfully for subject to the First Amend- the benefits of the statute. In that Trump would simply piv- years that internet sites violate ment. January 2020, then-presiden- ot to Parler, the social network their First Amendment rights, In Manhattan Community tial candidate Joe Biden called mainly catering to Trump sup- Section 230 of the Communi- Access Corporation v. Halleck, for Section 230 to be revoked porters, but Parler went dark cations Decency Act and an- 139 S. Ct. 1921 (2019), the gov- in its entirety, thus it will most when both Apple and Google ti-discrimination laws when ernment handed over a public likely be modified but how and removed the app from their site owners ban or suspend access cable channel to a pri- when remains to be seen. stores and Amazon Web Ser- them from social media web- vate entity to operate. Writing As Congress, the executive vices declared that it would no sites. for the majority, Justice Brett branch and the Department longer host it on its cloud com- The U.S. Supreme Court has Kavanaugh stated that provid- of Justice debate deplatform- puting services. repeatedly ruled that a pri- ing a forum for public speech ing in the United States, world Banning or suspending, also vate entity, such as Facebook is not an activity exclusive to leaders from across the globe known as deplatforming, is or Twitter, is only subject to governmental entities; there- have condemned Twitter’s sus- not unprecedented, but the in- the First Amendment when it fore, a private entity does not pension of Trump’s account. Although some welcomed the public institutions, as well as a enjoin YouTube to declassi- their videos either because of move, many — even critics of small percentage of YouTube fy their videos as “Restricted their membership in a protect- the former president — blasted users (presumably parents) Content.” The court, however, ed class or alternatively, does the action as politically moti- screen out content flagged as ruled that while Google and so capriciously and arbitrari- vated and an infringement on age-restricted or “potentially YouTube might host speech, ly. At issue are not only claims free speech. A spokesman for adult” by opting in to Restrict- their platforms are private and brought under the state and German Chancellor Angela ed Mode. YouTube addition- not subject to the same First federal constitutions, but also Merkel has stated that Twitter’s ally uses automated software Amendment and civil rights alleged violations of the Lan- decision to preemptively ban to identify content as inappro- constraints as a state actor. ham Act, California’s Unruh an elected president (rather priate for advertising, resulting Two other pending cases Act, California’s Unfair Com- than continue to flag specific in what critics deem “demon- raise similar challenges. In Di- petition Law, and breach of problematic tweets as inaccu- etization,” arguably a form of vino Group LLC v. Google LLC, YouTube’s terms of service. Fi- rate) is “problematic” based censorship. YouTube says it 5:19-cv-04749 (N.D. Cal.), nally, the Newman plaintiffs ar- on the “fundamental impor- does this pursuant to its terms LGBTQ+ content creators filed gue that Section 230 is uncon- tance” of freedom of opinion. of service with content provid- a class action against YouTube stitutional under the First and Her comments are echoed by ers in order to ensure that ads and Google, claiming that the 14th Amendments; the United a representative of the French do not appear alongside videos defendants’ Restricted Mode States has not yet determined government, Clement Beaune, with content that certain audi- discriminates against them by whether it will intervene. who warned that “a digital oli- ences might find objectionable. labeling their videos as shock- In the wake of these challeng- garchy” constitutes a threat to In 2020, the 9th U.S. Circuit ing and sexually explicit. The es, YouTube has acknowledged democracy. Court of Appeals affirmed dis- Divino plaintiffs accused Goo- that Restricted Mode is “not missal of a lawsuit brought by gle/YouTube of having a bias perfect,” and advises that it is Conservatives, GLBQT+, a conservative media company against those in the LGBTQ+ seeking to address the concerns and African-American in PragerU v. Google, 951 F. 3d community who create and raised by plaintiffs, including Groups Alike Challenge 991 (9th Cir. 2020). PragerU post video content or to whom declassifying some videos so Google/YouTube’s alleged that YouTube’s classi- the content is targeted. that they are not excluded by Moderation of Uploaded fication of some of its videos Divino has been stayed viewers who opt-in to Restrict- Content as “Restricted Content” and pending the same court’s rul- ed Mode. In addition to deplatforming, its demonetization of some of ing on a motion to dismiss a speech rights are at issue in a its videos constituted an at- related class action, Newman Mari K. Rockenstein is a recent spate of cases challeng- tempt to silence conservative v Google, 5:20-cv-04011 (N.D. faculty member in the MVS ing YouTube and its parent viewpoints and perspectives Cal.). Newman was brought by School of Business & Eco- company Google’s practice of on public issues. An example African-American content cre- nomics at California State moderating content on its site, of a restricted/ demonetized ators, viewers and consumers University Channel Islands. claiming that the practice un- video was one with the title, who challenge Google’s moder- She is a frequent commen- fairly restricts marginalized “Why Isn’t Communism as ation of uploaded content, and tator on legal issues for radio groups’ content. YouTube of- Hated as Nazism?” Prager U who allege, like the plaintiffs and television and is of coun- fers an optional opt-in setting argued that YouTube is a state in PragerU and Divino, that sel to the Camarillo-based called “Restricted Mode.” Many actor because it performs a Google and YouTube excludes law firm of Panda Kroll, Esq. libraries, universities and other public function and sought to and/or wrongly demonetizes & Associates. Reprinted with permission from the Daily Journal. ©2021 Daily Journal Corporation. All rights reserved. Reprinted by ReprintPros 949-702-5390..
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