- A federal appeals court ruled YouTube is not subject to the First Amendment and can censor content on its platform as part of a long-running lawsuit filed by conservative nonprofit PragerU.
- The lawsuit alleged that YouTube demonetized and limited some of PragerU’s videos because it is biased against conservatives.
- PragerU called the move censorship and discrimination, arguing that YouTube should be treated like the government, not a private company, in matters of free speech.
A federal appeals court in California ruled that privately-owned tech companies like YouTube are not bound to the First Amendment and can censor content.
The decision comes from a 2017 lawsuit against YouTube and its parent company Google that was filed by PragerU, a nonprofit headed by Dennis Prager. The company filed its complaint after YouTube demonetized and restricted some of its videos.
PragerU accused YouTube of being biased against conservative views, arguing that the decision amounted to discrimination and censorship. The lawsuit claims that YouTube had intentionally demonetized and restricted the videos “as a political gag mechanism to silence PragerU.”
The lawsuit also argued that YouTube regulates free speech on a “public forum,” and so it should be subject to the same scrutiny that the government is under the First Amendment.
To argue this point, the lawsuit cited the Supreme Court case Marsh v. Alabama. In that case, the court ruled that a Jehovah’s Witness had the right to give out leaflets in a town fully owned by a corporation.
A District judge dismissed the lawsuit in March 2018. In her decision, Judge Lucy Koh cited a more recent Supreme Court ruling in Lloyd Corp. v. Tanner, where the court decided that a mall could ban people from distributing anti-Vietnam War fliers on its property.
In that ruling, the Supreme Court also clarified that Marsh v. Alabama could be only be applied to the town in the case.
On Wednesday, a three-judge panel on the Ninth Circuit Court of Appeals upheld Koh’s decision, again ruling against PragerU.
“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,” Judge M. Margaret McKeown wrote in the panel’s decision.
“PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government— not a private party— from abridging speech.”
In their decision, the appellate judges pointed to a Supreme Court ruling from last year, where the highest court found 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 judges also shot down a claim that YouTube was guilty of false advertising.
A YouTube spokesperson defended the social media platform and its parent company in a statement following the court’s ruling.
“Google’s products are not politically biased,” the spokesperson said. “PragerU’s allegations were meritless, both factually and legally, and the court’s ruling vindicates important legal principles that allow us to provide different choices and settings to users.”
PragerU, however, appears to believe the fight is not over.
“Obviously, we are disappointed,” the organization’s lawyer told the Wall Street Journal. “We will continue to pursue PragerU’s claims of overt discrimination on YouTube in the state court case under California’s heightened antidiscrimination, free-speech and consumer-contract law.”
But many have noted, that the ruling was not unexpected at all. According to the Journal, no court has supported PragerU’s legal argument, as it is widely accepted that free speech constraints are applied only to the government and not private entities.
The argument that social media companies like YouTube, Twitter, and Facebook should be pinned to the First Amendment is one that has been growing more and more prominent, especially among conservative circles.
Those who support this argument often believe that certain efforts by large tech companies to regulate content on their platforms are tantamount to censorship.
These arguments are almost certainly going to remain in the polarizing political discourses around free speech and social media. However, as the Journal argues, the appellate court’s decision is “the most emphatic rejection of the argument advanced in some conservative circles that YouTube, Twitter, Facebook and other giant tech platforms are bound by the First Amendment.”
See what others are saying: (The Wall Street Journal) (Ars Technica) (The Washington Examiner)
Trisha Paytas Departs From “Frenemies” Podcast With Ethan Klein
The announcement came after Paytas and co-host Ethan Klein engaged in a heated argument on the most recent episode of their show.
Paytas and Klein Argue
YouTuber Trisha Paytas announced Tuesday that they are stepping down from the “Frenemies” podcast with Ethan Klein.
Paytas, who uses they/them pronouns, posted a 22-minute long video explaining their decision. The departure comes after Paytas and Klein got in a heated argument on the most recent episode of “Frenemies,” which paying members had access to on Monday and the general public received access to on Tuesday.
The dispute started when Paytas appeared unenthusiastic about a new advice segment that was added to the show. Klein then made a comment about how Paytas contributes nothing to “Frenemies” and just shows up to film, which ignited a fight about creative differences the two have when it comes to the production of the podcast.
Paytas seemed overall frustrated that they do not have more input on the show and that their ideas are allegedly often dismissed.
“I never pick the costumes, I never do the Vlogs, I give so many ideas,” they said. “I say dancing for the vlogs, I give all these ideas and you don’t…I don’t think it’s a good segment.”
Paytas also mentioned that they get no say on new hires even though Klein uses 5% of the podcast’s revenue, as well as money earned from highlight episodes of the podcast, to pay the crew and cover production costs. Klein, however, argued that he does not need to run new hires by Paytas because those people are hired as employees for his production company, H3 Productions, which produces and airs “Frenemies.”
“These are employees of our production company,” he said.
“It’s literally about we are producing the show and I am taking a cut, I feel like that is beyond reasonable,” he later added.
Klein claimed that he already gives Paytas 50% of everything else, which he argues is an incredibly good deal considering H3 Productions does all the backend work. Paytas still felt differently and said that “Frenemies” should have its own employees.
After the argument escalated, Paytas walked off the set holding back tears and the episode ended. Many found Paytas’ comments, specifically the ones referencing the crew and their pay, to be rude and disrespectful.
Paytas Leaves “Frenemies”
On Tuesday morning, Paytas posted a video announcing and explaining their departure. They claimed that the crew was frustrated and did not want to film with Paytas the next day, partially because the segment Paytas had slammed came from a new hire.
Paytas stressed that wanting more money was not their issue. Instead, they said they truly just wanted the show to be more of a 50/50 partnership creatively. Paytas said that while they understand Klein produces the show, they would have loved to pitch in on producing as well, but often just felt like an outsider.
“I do feel like I contributed half to Frenemies, building the H3 channel,” Paytas explained. “Like I would have loved to have Frenemies on my channel and build up my channel. I could have produced it, I could have built sets, I’m capable of this stuff.”
Paytas also clarified that they have no issue with the crew. While Paytas said they were not sorry for bringing these issues up, they were sorry for how the message was delivered.
They added that in the end, they really felt like they brought an underappreciated value to the show. Paytas also said that in the beginning of this partnership, they were under the impression that they would be building something entirely new with Klein.
“If I knew I was coming in as a third H3 show, like I swear hand to god I would not have done it,” they said.
Paytas added a lengthy comment below the video after it was posted, saying they were leaving “to ease the tension everywhere.”
“I don’t want to be the toxicity in their machine,” Paytas continued. “And I can feel that I am. And it’s not good for anyone involved.”
Klein and Paytas Lash Out on Twitter
Klein responded to the video on Tuesday. In two posts he joked about it being National Best Friend’s Day and asked what he should do with the 4,000 “Frenemies” hoodies he has. In a more serious tweet, he said he was “gutted” about the situation.
“Trisha’s video this morning was a total surprise to me,” he added. “I don’t really know what more I can say or do. I’m very sorry to all the fans of frenemies, I know how much it meant to everyone, I did everything I humanly could to save it.”
Things escalated later in the day when Paytas posted a second video further explaining their decision to leave the podcast. They said the last thing they ever wanted to do was disrespect the crew, and again emphasized that money was never their issue.
Paytas also acknowledged that they should have never brought up money on the podcast or in front of the crew in the first place. Things, however, continued to spiral on Twitter as Paytas and Klein engaged in a stormy back-and-forth.
Among other things, Klein said he was angry that Paytas’ fans were sending hate to the crew members online. He said he reached out to Paytas because he was upset with the way they handled things but said he will ultimately always cherish his experience making “Frenemies.”
Paytas responded to him and insisted they were never rude to the crew themself. Paytas also shared text messages, accusing Klein of being misleading and flip-flopping on how the money for production costs was spent. Paytas is receiving a considerable amount of backlash for one of the texts they shared, as one screenshot shows them making an antisemitic remark to Klein.
Crew members also engaged in online discourse about the news, including Dan from H3 Productions, who accused Paytas of lying in their videos. According to Dan, the crew was actually fully prepared to film with Paytas the next day and Klein was the one to cancel the shoot.
Dan also said that the new hire was not the person who came up with the segment Paytas took issue with and instead was just the person who presented and prepared it.
Klein and Paytas later deleted most of their tweets attacking each other. Both said they should not have aired those feelings and messages on Twitter.
Paytas Apologizes To Fans and Klein
On Wednesday morning, Paytas apologized to Klein and others who worked on “Frenemies,” saying they were “embarrassed” by the situation. In a separate tweet, Paytas apologized to fans for ending things so turbulently.
“I feel horrible,” they wrote. “This is the worst feeling to see people think I’m this heartless monster who doesn’t do anything wrong. I have been in the wrong so many times on frenemies, they’ve been really wonderful to me.”
Paytas then uploaded a third video titled “I’m Sorry.” In it, they said the whole situation had been blown out of proportion and that the first two videos were meant to clarify issues but only made things worse. They again apologized for leaving the podcast and for disappointing fans.
“I don’t know how to make the situation right…I don’t know what to do,” Paytas said.
Showtime Will Process Refunds After Crashing During Paul Vs. Mayweather Fight
Many said they were unable to watch the highly anticipated pay-per-view event because of technical difficulties.
Showtime To Issue Refunds
Showtime is processing refunds for customers who could not watch Sunday’s highly anticipated fight between YouTuber Logan Paul and boxing champion Floyd Mayweather because of technical difficulties on the streaming platform.
The night of the event, Twitter was full of users complaining that Showtime had crashed during the fight. The company released a statement saying it was “aware that some customers have been having trouble accessing tonight’s Pay Per View event” and was “working diligently to resolve the issue and will redress customers appropriately.”
Showtime Support’s Twitter account later told people to return to the event in ten minutes, though that still did not resolve the issue for many viewers.
In a tweet on Monday, the service said anyone who purchased the fight via Showtime’s website or app but was unable to watch it could request a refund.
What Happened During the Fight?
The fight ultimately lasted eight rounds, ending without a knockout or winner. After the match, Mayweather said Paul was “better” than he anticipated.
“He’s a tough, rough competitor,” he continued. “It was good action, to have fun and I was surprised by him tonight. Good little work, good guy.”
“I don’t want anyone to tell me anything is impossible ever again,” Paul told reporters. “The fact that I’m in here with one of the greatest boxers of all time proves that the odds can be beat.”
A report from The New York Times said that both Paul and Mayweather “assuredly took home millions” from the event, but exactly how much they made is still a mystery.
See what others are saying: (The Hollywood Reporter) (The New York Times) (The Wrap)
Amouranth Says Twitch Suspended Ads on Her Channel Without Warning
Amouranth claims Twitch never specified what made her channel unsuitable for ads, but many have pointed to her controversial hot tub streams, which are technically allowed under the platform’s guidelines.
Amouranth Reveals Twitch Ad Suspension
Twitch streamer Kaitlyn Siragusa, known online as Amouranth, said Tuesday that the platform indefinitely suspended ads on her channel without any warning or communication.
Siragusa has become known for her hot tub streams, a trend that has recently stirred controversy on Twitch. The platform’s terms of service technically allow streamers to wear bathing suits so long as they provide appropriate coverage and the person is streaming from a location where swimwear is standard attire. Hut tub streams fit this bill, but some believe they cross a line and are in bad taste. Others, however, think the largely female streamers participating in the trend should be allowed to continue these streams and are doing no harm.
Twitch has largely stayed out of this issue, though the company previously said it had its eyes on the situation. Now, according to Siragusa, the company might be taking a stand.
“Yesterday I was informed that Twitch has Indefinitely Suspended Advertising on my channel,” she wrote on Twitter, claiming the company did not reach out to tell her.
“I had to initiate the conversation after noticing, without any prior warning, all the ads revenue had disappeared from my Channel Analytics.”
“This is an ALARMING precedent,” she continued. She claimed that even if content falls within the site’s terms of service, Twitch has the ability to “target individual channels” and decide what is and is not “advertiser friendly” even though there are no clear guidelines for this.
“There is no known policy for what results in a streamer being put on this blacklist,” Siragusa added. “With characteristic opacity, The only thing twitch made clear is that it is unclear whether or when my account can be reinstated.”
While it looks like Twitch never specified what about her channel was not advertiser-friendly, people have unsurprisingly pointed to her hot tub streams. Twitch has not issued a comment on the matter, but its alleged decision to demonetize Siragusa would be a major one. According to Kotaku, the platform has never used its power to demonetize a creator before.
Creators Respond to Amouranth’s Claim
Online, some have cheered Twitch’s alleged decision while others have slammed the platform for its lack of communication. Several creators have echoed Siragusa’s concerns that it sets a dangerous precedent when it comes to what kind of content the site can crack down on.
“Why is it that they just didn’t come over and say, ‘stop doing this, or we are going to demonetize you.’ You know what I mean?” streamer Asmongold asked during a stream on Tuesday.
“Look, I understand people are getting a hard-on because they’re happy this thing happened because they don’t like hot tub streamers, I get that,” he continued. “But you understand what she’s saying, she’s not wrong! She’s not wrong in saying this, this is true. And them not talking to her at all about it?”
Streamer and adult film star Mia Malkova shared his concerns and confusion about Twitch not reaching out to Siragusa first.
“No statement/warning is ridiculous and no way to treat the people that use their platform,” Malkova said in a tweet to Siragusa.
On Twitter, streamer Devin Nash called out those who celebrated the demonetization, claiming that while some users might agree with Twitch in this instance, the move could impact a creator they support in the future.
“If you think this stops at sexual content, think again,” he wrote.
One of Twitch’s most popular streamers, xQc, who was previously very critical of hut tub streams, seemed to imply that he felt Siragusa’s demonetization signaled a potential issue for everyone on Twitch. He encouraged people to “chill out” until there is more communication from Twitch on the matter, but added that this means “things are a little bit adaptive” on the site.
“There’s a lot of people that do the same content that she does,” he said on a Tuesday stream. “And if everybody does the same content, and something was [against the terms of service], if one got banned, you guys would all say, ‘Look at the other guys that aren’t being banned.’ But now that this is against her and she loses her ads, nobody is saying, ‘But what about the other guys? Why aren’t they losing their ads?’”
He later added that this move “might have saved everybody from losing their ads” and that Siragusa “might be a scapegoat” for other streamers, but did not elaborate on that point.