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Sunday, March 4, 2018

Banning InfoWars: Because YouTube Has First Amendment Rights Too

Being forced to associate with, or carry content of, certain people violates the First Amendment rights of the target.

This is especially true when private companies are involved. (I distinguish that from broadcasters whose operations depend on a government license issued by and subject to review and renewal by the Federal Communications Commission. The question of "who owns the airwaves" is valid, but beyond the scope of this article.) The controversy rages anew, as YouTube reportedly will block the YouTube account channel for the controversial website InfoWars on Monday, reports right-wing investigator and provocateur James O'Keefe.

I won't delve into (nor link to) the content of InfoWars. Readers can access it (and often do so without warning) by going to The Drudge Report, which lists it twice (once as InfoWars, once as Alex Jones) among its newsfeed channels. 

Presumably, this action is taken because of some violations of the YouTube terms, guidelines, etc. YouTube is a private service and as such, has its own rights to set its terms. Let's simply look at YouTube's stated policies, which I found with some difficulty. 

First, from the Policies and Guidelines webpage:

You might not like everything you see on YouTube. If you think content is inappropriate, use the flagging feature to submit it for review by our YouTube staff. Our staff carefully reviews flagged content 24 hours a day, 7 days a week to determine whether there's a violation of our Community Guidelines.

And those Guidelines say, in relevant part:

Our products are platforms for free expression. But we don't support content that promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity, or whose primary purpose is inciting hatred on the basis of these core characteristics. This can be a delicate balancing act, but if the primary purpose is to attack a protected group, the content crosses the line. (Emphasis added.)

Now, from a lawyer's perspective, let's look at the Guidelines' Hate Speech policy:

We encourage free speech and try to defend your right to express unpopular points of view, but we don't permit hate speech.
Hate speech refers to content that promotes violence against or has the primary purpose of inciting hatred against individuals or groups based on certain attributes, such as:
  • race or ethnic origin
  • religion
  • disability
  • gender
  • age
  • veteran status
  • sexual orientation/gender identity
There is a fine line between what is and what is not considered to be hate speech. For instance, it is generally okay to criticize a nation-state, but if the primary purpose of the content is to incite hatred against a group of people solely based on their ethnicity, or if the content promotes violence based on any of these core attributes, like religion, it violates our policy.
Also, under the heading of "Threats" is the following:

Things like predatory behavior, stalking, threats, harassment, intimidation, invading privacy, revealing other people's personal information, and inciting others to commit violent acts or to violate the Terms of Use are taken very seriously. Anyone caught doing these things may be permanently banned from YouTube. 

Now, taking all of this language, there are some flaws. In short, its because the terms and guidelines are too brief. They fail to give enough warning to users as to what "crosses the line." That's because there is too much ambiguity in a lot of single words.

You can criticize this as "overlawyering" and criticize me for being one of those subhuman lawyers. However, almost every subject, verb, adjective and adverb in the terms requires a definition. Look again at just this one sentence. I've put in bold what I think is each and every term which has an unclear or ambiguous meaning.

For instance, it is generally okay to criticize a nation-state, but if the primary purpose of the content is to incite hatred against a group of people solely based on their ethnicity, or if the content promotes violence based on any of these core attributes, like religion, it violates our policy.

Each term I've highlighted is susceptible to multiple meanings, which in turn exposes YouTube to criticism that it is being arbitrary, unfair or "political" in exercising its own rights.

But before the "right wing" cues up the faux outrage machine and further embarrasses conservatives, let's remember a few general principles.

YouTube has its own rights of free speech, including the right of free association. Remember the infamous-on-the-Left Supreme Court ruling in Citizens UnitedYouTube is a private company. YouTube is an affiliate of the Google empire, which includes the publicly-traded company known now as Alphabet. But that doesn't mean the customers, the public, or the government get to tell a private business how to run its business.

On the other side, the rights of free speech (which rights in the United States are against government intrusion, not by the acts of other private parties) of InfoWars are not infringed or restricted one bit. Not at all! InfoWars can still operate -- just go to its website directly. What it loses is easier access to audience flow. But that access depends on a third party, and if you're arguing that InfoWars has a right to that access, then you have to also argue that the access provider (here, YouTube) has an obligation to provide that access no matter what.

In fact, you have to argue that InfoWars is entitled to audience flow, that it is, in essence, immune from the rights of any other private parties, maybe even immune from competition. InfoWars does not have a right -- under the Bill of Rights or contractually -- to unfettered use of a marketing channel and platform owned by a private third party. 

The arguments against YouTube require imposing controls on it, require forcing a private party to do something. This is not free markets. This is not free speech. This is, however, very controlling, very authoritarian.

The people saying that "YouTube has no business..." or accusing it of "censorship" don't realize they are arguing for a private business to be controlled by an outside group. Rational people have to think about two questions: First, who would that group be? Second (and more importantly), who decides the first question?

This, my friends, is the road to government oversight and control. Under the rubric of "free speech," this is the march towards Soviet-style Marxism. Not because YouTube is "censoring" content which is both within its right 

So, the critics of YouTube and defenders of (in this case) InfoWars, who want to force YouTube to carry certain content are not defenders of free speech here. They are its attackers. This confusion, and deception, are the next steps in paving the road towards authoritarianism and totalitarianism.

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