YouTube Censorship and the Partisan Nature of First Amendment Advocacy
Jacqueline Hillman | July 2021
(Clockwise) Steven Crowder in 20191; the Supreme Court in June 2021; YouTube CEO Susan Wojcicki in 2013
he partisan divide regarding how private entities should be regulated has permeated the history of American legal and economic thought. On the one hand, conservatives tend to favor a marketplace less encumbered by regulation, while progressives tend to advocate for government-sanctioned regulatory protections.
Classic debates over which approach is more effective economically and socially, such as that between Friedrich Hayek and John Maynard Keynes, point to a clear divide in ideology that has yet to be settled.
These contrasting political stances sometimes seem as though they are permanently ascribed to our political parties, yet it is not uncommon for various stances to “switch sides,” one day being advocated for by liberals, the next being supported by conservatives.
For instance, liberals have historically been huge proponents of the freedom of speech guaranteed by the First Amendment. Examples include the defense of the voices of workers in the early 1900s and the ACLU’s advocacy for the freedom to desecrate the American flag, as seen in the 1989 Supreme Court decision Texas v. Johnson. However, in more recent years, an increasing number of conservatives have espoused support for an unimpeded freedom of speech, in part evidenced by free speech lawsuits filed against various public universities.
Yet in many speech issues today, in our digital era, taking a side is an increasingly complicated and controversial choice. Social media platforms in particular present a unique opportunity to discuss the desirability and constitutionality of speech and content regulations, as they are owned and operated by private entities, but are used as public forums for expression. The pandemic only advanced the role of these platforms as channels of public speech, as in-person settings for expression transitioned to a virtual format composed of various internet forums and other social platforms, including Twitter, Facebook, and Reddit.
Free Expression on YouTube
One of the most prolific virtual sources of speech and self-expression is the video platform YouTube, where almost 300 hours of video is uploaded every minute. While plenty of average people recreationally upload videos on YouTube, some individuals pursue full-time careers as creators, exclusively uploading videos for their primary source of income.
Eligibility for monetization on YouTube is based on a seemingly simple standard: content producers must be “advertiser friendly.” In 2017, the platform underwent a crisis known popularly as the “adpocalypse,” in which major brands stopped running advertisements on the platform after their commercials appeared before offensive or violent content. This period resulted in a major dip in revenue for the platform, prompting creators to face surmounting difficulty in achieving monetization on their videos.
Steven Crowder, conservative political commentator and self-proclaimed comedian, currently utilizes YouTube as the primary platform for his political podcast Louder with Crowder, along with his “Change My Mind” series, in which he debates college students on various political topics.
Crowder has had multiple “strikes” issued on his channel by Google, and the entire channel has been demonetized several times for violation of YouTube’s Community Guidelines. In response, Crowder announced his plans to sue the platform in late May of this year. If Crowder incurs one more strike due to a Community Guidelines violation, his entire channel is under threat of being shut down indefinitely.
In his announcement, Crowder asserted that his lawyers had sent YouTube letters of intent to sue, with a desired legal remedy of injunction against further demonetization of his channel, although a legal complaint has yet to be publicly filed. Crowder argued that “if YouTube were to… get rid of this show, this channel, it is to say that none of these points of view are welcome here. These are mainstream points of view… This is exclusion, it’s tantamount to saying that no conservatives… are welcome on this platform.”
Crowder refers mainly to a video in which he, according to YouTube, spreads misinformation about the COVID-19 pandemic, specifically propagating the idea that coronavirus death rates are equivalent to that of a seasonal flu, which resulted in the video containing the statement to be taken down. Essentially, Crowder contends that YouTube executives are pointedly censoring conservative voices in favor of leftist perspectives, violating his freedom of speech and acting with bias against conservatives.
Opposition to regulation of content on YouTube amounts to treating the platform as a public space. But YouTube is a private company. Typical conservative, free-market ideals suggest that a private entity should have almost unlimited authority over its policies, standards, and operations of business. Yet Crowder’s complaint is reminiscent of a growing movement to regulate YouTube’s practices, which would constitute treating YouTube as something other than a private business, more akin to a public forum or assembly. Until YouTube’s status as a private entity changes, however, these assertions challenge a traditional conservative point of view, potentially establishing a political counterculture, or suggesting the emergence of a new Right.
Legally speaking, to regulate YouTube’s ability to censor participants on its own platform would potentially contradict the proposition established in Section 230 (47 US Code § 230) that “providers… of an interactive computer service” should not be subject to content-based government scrutiny and liability. If the government scrutinizes YouTube’s own choices regarding its content, the free-market ethos of Section 230 would be damaged, sending a message that providers must uphold a variety of content types, even potential misinformation.
The problem here is not just social; it’s economic. If YouTube is forced to avoid regulating content users post on its platform, advertisers may be less likely to risk being affiliated with what many deem to be misinformation or hate speech, leaving other creators vulnerable to losing their income.
Allowing conspiracy theorists to reach large audiences both spreads misinformation and breeds distrust within society. YouTube’s policies are reasonable in that they, in theory, equally apply to both sides of the political aisle.
But there is also value in rethinking how we regulate social media moving forward. Censorship, wherever found, should elicit hesitation, if not scrutiny. In the case of YouTube, the company’s censoring of Crowder is beneficial for its revenue stream and, more arguably, for the public’s access to the truth. Yet a debate is unfolding regarding the degree to which we should consider regulations restricting censorship on social media platforms, rooted, in part, in the belief that such censorship represents the use of monopoly power to define and shape public opinion. Regulation of censorship and monopoly power for this reason might point to a more social purpose of antitrust enforcement, but that is beyond the scope of this article.
Regardless, Crowder’s case represents a deeper political phenomenon occurring, namely the switching of partisan stances on the degree to which regulation should exist in markets, including the market for social media. As speech and expression are increasingly conducted on internet platforms, it is becoming increasingly crucial to redefine the limits of speech and corporate censorship on these platforms. Otherwise, partisan entrenchment and misunderstanding will abound.