Why YouTube caving to Trump is cowardly

Another one bites the dust. That’s what the headline should be this week. 

On Monday, YouTube agreed to pay $24.5 million to President Trump and several others, settling a lawsuit over YouTube’s suspension of their accounts following the events at the U.S. Capitol on Jan. 6, 2021.

This marks the third major social media company to capitulate to the Trump administration this year. In June, Meta settled for $25 million, followed by X, who agreed to a $10 million settlement less than a month later. Unfortunately, this is in addition to media companies like Paramount Global, who bent the knee to Trump for $16 million this past July, and ABC News, who settled for $15 million late last year. That’s also not to mention the universities that caved after government pressure and bullying. Columbia, for example, agreed to a $221 million settlement with the Trump administration in July. And Harvard, after a long fight, is also reportedly approaching a $500 million settlement this week.

If you care about free speech, this should really piss you off. These companies and institutions traded principle — and, most importantly, the opportunity to stand on their First Amendment rights — for profit and short-term peace of mind.

How do we know? Because in many cases, such as that of Paramount Global, the settlement was a thinly veiled prerequisite to FCC approval of a major — and lucrative — business deal the company was after.

We also know it because many of the lawsuits themselves were, to quote FIRE Chief Counsel Bob Corn-Revere, “forehead-slappingly stupid”— such as Trump’s claim against CBS (which is what held up the Paramount deal).

The complaint against YouTube is merely the latest example of this baseless legal posturing. It rests on two counts: First, that YouTube violated the First Amendment by suspending Trump and his fellow plaintiffs’ accounts. Second, that Section 230 of the Communications Decency Act is an unconstitutional source of immunity for companies like YouTube to engage in censorship.

Both counts are without merit.

YouTube is a private company with its own First Amendment rights

Throughout the complaint, Trump and his fellow plaintiffs argue that YouTube was doing the bidding of the Biden White House and Democratic members of congress, effectively turning the platform into a government actor. As a result, the complaint argues, YouTube became subject to First Amendment restrictions on censoring “constitutionally protected speech on the Internet, including by and among its approximately 2.3 billion users that are citizens of the United States.”

To the untrained ear, this may actually sound reasonable. After all, YouTube is a place where millions of people communicate with one another and receive information about the news of the day. But none of that changes the fact that YouTube is also a private company with its own First Amendment rights — which includes the right not to publish or platform content or speakers it disfavors. When you recognize that, the entire argument in this complaint falls apart.

The complaint attempts to justify its contention by noting that the platform was “encouraged and immunized by Congress” to suspend the accounts of Trump and the other plaintiffs. (Part of this so-called immunity comes from 1996’s Section 230, which the complaint also attacks. We’ll get into that in a moment.) “In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the (Biden) White House,” the complaint reads. “As such, Defendants’ censorship activities amount to state action.” Unfortunately for Trump and his fellow plaintiffs, that’s not how the law works. 

According to the complaint, the Biden administration engaged in coercive and indirect tactics to pressure these social media companies to censor and deplatform views the administration didn’t like — otherwise known as jawboning. This, as we’ve argued before, does violate the First Amendment. A year ago in NRA v. Vullo, the Supreme Court agreed, unanimously affirming what had been ruled in 1963’s Bantam Books v. Sullivan: The government can’t do indirectly what the First Amendment prevents them from doing directly.

However, if Trump and his fellow plaintiffs are arguing that the Biden administration jawboned YouTube, they’re suing the wrong people. While jawboning is a violation of the First Amendment, it doesn’t magically transform the coerced party into a government actor. It certainly doesn’t cause a private company to lose its own First Amendment rights. There are multiple tests for when a private person or entity becomes a state actor, but in order to justify this claim in this context, the complainants would have to show concerted action — in other words, the platform consciously acted as the government. The allegation that the platform sometimes gave into government pressure doesn’t satisfy that standard.

Section 230 is not unconstitutional

The second count in the complaint attempts to further justify the first, but inadvertently emphasizes why both are baseless. “Defendants would not have deplatformed” Trump and his fellow plaintiffs, the complaint reads, “but for the immunity purportedly offered by Section 230.” That is nonsense. The platforms did not need “immunity” in deciding to deplatform anyone because nothing in the law compels them to carry particular speakers.

In a nutshell, Section 230 says that platforms like YouTube, X, and Facebook cannot be held legally liable for the content posted on their sites by their users. The law also further protects platforms’ right to curate and moderate that content as they see fit, like a bookseller would.

For years, politicians on both sides of the aisle have railed against and mischaracterized Section 230 for their own partisan reasons. This complaint against YouTube is no different:

Section 230… [was] deliberately enacted by Congress to induce, encourage, and promote social media companies to accomplish an objective — the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet — that Congress could not constitutionally accomplish itself.

The complaint argues that Section 230 is little more than a tool for jawboning. As a result, the complaint “seeks a declaration that Section 230…[is] unconstitutional insofar as [it purports] to immunize from liability social media companies and other Internet platforms for actions they take to censor constitutionally protected speech.”

This is, to put it bluntly, wrong.

First of all, Section 230 was passed in 1996, long before the advent of social media. The idea that it was “enacted by Congress to induce, encourage, and promote” censorship on social media would require a time machine to make true. Second, Section 230 actually works as a safeguard against jawboning — granting publishers and platforms an additional layer of protection against government pressure when it comes to content moderation (and from private causes of action, too). And I say “additional” here because the First Amendment already protects the right of these platforms to use their own editorial discretion, as the Supreme Court held just last year in Moody v. NetChoice. 

In other words, Section 230 doesn’t grant these platforms any rights the First Amendment does not. Rather, it further protects those rights from baseless legal action — such as the complaint YouTube just paid $24.5 million to avoid fighting.

And this is why it’s so disappointing that YouTube caved.

These companies cower at their — and our — peril

Just as with Paramount, ABC, Meta, X, and even Trump’s “SLAPP” lawsuit against the Iowa pollster J. Ann Selzer and The Des Moines Register (who, thankfully, have not rolled over), the YouTube settlement is another example of what we’ve been calling the extortion-industrial complex: The Trump administration’s intention to seize control of America’s media industry through the use and abuse of government powers.

Add to that the administration’s unlawful and unconstitutional attempts to nationalize private institutions of higher education, and we have a serious problem on our hands. These actions, and the majority of the targets’ unwillingness to fight back, pose a major threat to our most foundational freedoms. If our colleges and universities are forced to toe the ideological line of whoever is in power, and if our media companies operate under the boot of the state, we lose both the free inquiry given to us by academic freedom and the open discourse given to us by a free press.

What makes all this worse is that the lawsuits are based on obviously meritless claims that would never withstand scrutiny if they actually went to court. The Trump administration has been mauling these institutions with paper tigers, and the institutions have decided to cower in fear rather than fight. Sure, in the short term, the settlements may help to achieve government favor. The mergers may go through. The federal funding may resume or continue to flow. Costly legal battles may be at least temporarily avoided. But meanwhile, “the freedom of Speech may be taken away,” as George Washington once said, “and dumb and silent we may be led, like sheep, to the Slaughter.”

That’s the cost of these companies’ cowardice: The First Amendment freedoms we all depend on to protect our individual rights and keep our democracy going. When those are given up, there’s no getting them back. We should all be fighting like hell to keep them.