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Newspapers are static publications, and are not primarily engaged in the business of distributing third party content, so the comparison doesn't work. But if t

Newspapers are static publications, and are not primarily engaged in the business of distributing third party content, so the comparison doesn't work. But if the newspaper had interactive functions, and had billed itself as an open platform where opinions of any kind could be published (as is the case with YouTube), then yes, censorship would become a thorny legal issue for them. Further, one of the big problems here is that YouTube didn't do this of its own accord. Agents of the government - Democratic Senators in this case, who signed the letter in their official capacity - pressured the company into suppressing free speech that they simply didn’t like. That is a clear violation of the Constitution.

csnover 6y ago
If you want to be pedantic about it, YouTube is a distributor, like a book store or a news stand, not a publisher like a newspaper. Distributors are in the business of distributing third party content. You can’t force a distributor to carry your content, and it would not become a “thorny legal issue” for them to stop carrying your product unless they violate your contract with them. Speaking of contracts, when someone sign up for YouTube, they agree to their terms of service, which don’t say “we’re an open platform where opinions of any kind can be published”. They say “YouTube is under no obligation to host or serve Content” and “you understand and agree that there will be times when we make […] changes without notice” and “If we reasonably believe that any Content is in breach of this Agreement or may cause harm to YouTube, our users, or third parties, we may remove or take down that Content in our discretion”.
- downandout 6y ago
  If you want to be pedantic about it I don’t want to be pedantic about anything. The terms can say whatever they want - they write them. But regardless of what the TOS say, when you advertise yourself as an open platform for free speech, which YouTube certainly does, it opens you up to liability when you prove not to be that open platform. Further, if they go too far with moderation and begin censoring content over and above clear, previously set guidelines, they can lose their immunity to libel/slander lawsuits under the CDA (Communications Decency Act).
  - csnover 6y ago
    Normally I would ask you for you to please show me where in the law it says what you claim, but I am instead going to speak directly because I think it is important to be super clear on this: Wherever you are getting your information, it is a garbage source, they are lying to you, and you should find a better one. Section 230 (which is essentially the only surviving part of the CDA; the rest was found to be unconstitutional in 1997[0]) gives interactive computer services immunity from civil claims (not just defamation) when removing material that they find objectionable, regardless of whether or not it is constitutionally protected, so long as it is done in good faith. The law is short and unambiguous[1]. There is no provision that says providers lose immunity if they go “above clear, previously set guidelines”. That is some straight made up garbage. If what you were saying were true (again, it is not!), the “clear, previously set guidelines” are right in YouTube’s Terms. Those Terms explicitly say that they have no obligation to host your content, might change the rules, might remove your stuff, and you’re OK with that. And, even better, the issue of whether or not a provider can lose their S230 immunities through harm due to the reliance on misrepresentation of material fact was adjudicated in Green v America Online[2] and the answer was no! In that case, AOL’s member agreement was clear and binding. YouTube’s member agreement is similarly clear and binding. YouTube cannot lose their immunity in the way you claim. [0] https://www.lawfareblog.com/whats-name-quite-bit-if-youre-talking-about-section-230 https://www.lawfareblog.com/whats-name-quite-bit-if-youre-ta... [1] https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/uscode/text/47/230 [2] https://www.eff.org/files/green-v-aol.pdf https://www.eff.org/files/green-v-aol.pdf
    - downandout 6y ago
      Your detailed analysis is interesting. Not because of what it says, but because of what it doesn’t say. It completely ignored the fact (explicitly mentioned in my comment) that in this case - the case this entire thread is talking about - government officials pressured the company into suppressing free speech. That is not the situation in the AOL case you mentioned, and makes your entire analysis irrelevant to this case. We aren’t talking about AOL. We are talking about a group of partisan senators pressuring a company that has a de facto monopoly in online video distribution into suppressing free speech for no reason other than “we don’t like it”. Your analysis, even ignoring the fact that it has nothing to do with the present case, is also entirely incorrect as it relates to my comment. The CDA requires that the removal be “in good faith”. Removals that aren’t in line with “clear, previously set guidelines” can be ruled to not be in good faith. We essentially said the same thing, but you managed to hurl insults at me - saying that my “sources must be garbage” - while you said your version of it. Well done.

csnover 6y ago

If you want to be pedantic about it, YouTube is a distributor, like a book store or a news stand, not a publisher like a newspaper. Distributors are in the business of distributing third party content. You can’t force a distributor to carry your content, and it would not become a “thorny legal issue” for them to stop carrying your product unless they violate your contract with them. Speaking of contracts, when someone sign up for YouTube, they agree to their terms of service, which don’t say “we’re an open platform where opinions of any kind can be published”. They say “YouTube is under no obligation to host or serve Content” and “you understand and agree that there will be times when we make […] changes without notice” and “If we reasonably believe that any Content is in breach of this Agreement or may cause harm to YouTube, our users, or third parties, we may remove or take down that Content in our discretion”.

downandout 6y ago
If you want to be pedantic about it I don’t want to be pedantic about anything. The terms can say whatever they want - they write them. But regardless of what the TOS say, when you advertise yourself as an open platform for free speech, which YouTube certainly does, it opens you up to liability when you prove not to be that open platform. Further, if they go too far with moderation and begin censoring content over and above clear, previously set guidelines, they can lose their immunity to libel/slander lawsuits under the CDA (Communications Decency Act).
- csnover 6y ago
  Normally I would ask you for you to please show me where in the law it says what you claim, but I am instead going to speak directly because I think it is important to be super clear on this: Wherever you are getting your information, it is a garbage source, they are lying to you, and you should find a better one. Section 230 (which is essentially the only surviving part of the CDA; the rest was found to be unconstitutional in 1997[0]) gives interactive computer services immunity from civil claims (not just defamation) when removing material that they find objectionable, regardless of whether or not it is constitutionally protected, so long as it is done in good faith. The law is short and unambiguous[1]. There is no provision that says providers lose immunity if they go “above clear, previously set guidelines”. That is some straight made up garbage. If what you were saying were true (again, it is not!), the “clear, previously set guidelines” are right in YouTube’s Terms. Those Terms explicitly say that they have no obligation to host your content, might change the rules, might remove your stuff, and you’re OK with that. And, even better, the issue of whether or not a provider can lose their S230 immunities through harm due to the reliance on misrepresentation of material fact was adjudicated in Green v America Online[2] and the answer was no! In that case, AOL’s member agreement was clear and binding. YouTube’s member agreement is similarly clear and binding. YouTube cannot lose their immunity in the way you claim. [0] https://www.lawfareblog.com/whats-name-quite-bit-if-youre-talking-about-section-230 https://www.lawfareblog.com/whats-name-quite-bit-if-youre-ta... [1] https://www.law.cornell.edu/uscode/text/47/230 https://www.law.cornell.edu/uscode/text/47/230 [2] https://www.eff.org/files/green-v-aol.pdf https://www.eff.org/files/green-v-aol.pdf
  - downandout 6y ago
    Your detailed analysis is interesting. Not because of what it says, but because of what it doesn’t say. It completely ignored the fact (explicitly mentioned in my comment) that in this case - the case this entire thread is talking about - government officials pressured the company into suppressing free speech. That is not the situation in the AOL case you mentioned, and makes your entire analysis irrelevant to this case. We aren’t talking about AOL. We are talking about a group of partisan senators pressuring a company that has a de facto monopoly in online video distribution into suppressing free speech for no reason other than “we don’t like it”. Your analysis, even ignoring the fact that it has nothing to do with the present case, is also entirely incorrect as it relates to my comment. The CDA requires that the removal be “in good faith”. Removals that aren’t in line with “clear, previously set guidelines” can be ruled to not be in good faith. We essentially said the same thing, but you managed to hurl insults at me - saying that my “sources must be garbage” - while you said your version of it. Well done.