Strictly Legal: No, YouTube and Google didn't violate his First Amendment rights

·3 min read
Jack Greiner, partner of Faruki PLL
Jack Greiner, partner of Faruki PLL

I’ve written on several occasions about the fact that the First Amendment doesn’t apply to private parties – even tech giants.

The First Amendment is a check on the government only.  This means that if a private entity interferes with someone’s “right” to speak, that’s too bad, but it doesn’t give rise to a viable case.

Unfortunately, Marshall Daniels either doesn’t read my column or doesn’t pay much attention to it. He recently brought a suit against Alphabet, Inc., Google and YouTube alleging that they deprived him of his First Amendment rights.   Daniels alleged that the three defendants violated 42 USC §1983, which allows people to sue state actors for depriving them of their constitutional rights.  The court threw out the case, but that was arguably the least of Daniels’ problems, as the court also decided that Daniels would need to pay YouTube’s legal fees.

Daniels has uploaded videos and live commentary concerning “social, political and educational” issues to YouTube since July 2015.  On April 21, 2020, Daniels live-streamed a video entitled, “Fauci Silenced Dr. Judy Mikovits from Warning the American Public.”  And on May 28, 2020, Daniels live-streamed a video entitled, “George Floyd, Riots & Anonymous Exposed as Deep State Psyop for NOW.” Both videos were removed in the weeks following their upload by Google and YouTube for purportedly violating YouTube’s Community Guidelines or its policies on harassment and cyberbullying.

Daniels attempted to avoid the dismissal of his suit by arguing that two members of Congress – Adam Schiff and Nancy Pelosi ‒ coerced YouTube and Google into removing the content.  According to Daniels, this constituted sufficient “state action” to haul the private actors into court.

There were two problems with this approach.  First, as the court noted, Section 1983 claims may be asserted against state actors, not federal officials.  Reps. Schiff and Pelosi, as anyone with a rudimentary knowledge of Civics knows, are part of the United States Congress.

But perhaps more importantly, the court found that statements by Schiff and Pelosi generally cautioning social media providers to avoid spreading misinformation do not transform those providers into state actors.  There was simply no state action here on which to base a 1983 case.

So Daniels lost the case. But that didn’t end the matter.  YouTube submitted a claim for $38,576 – representing the attorney fees it incurred in fending off the claim.  In the court’s view, YouTube was entitled to a fee award because Daniels' case was frivolous.

Daniels argued that his claims were “novel” but not frivolous.  For example, he argued that Reps. Schiff and Pelosi were state actors because they represented the state of California.  The court was unimpressed, noting “this argument lacks merit and is not supported by either of the cases on which Mr. Daniels relies, neither of which concerns a member of Congress being treated as a state actor by virtue of representing a state in Congress.   . . .  None of his arguments are persuasive, as he articulated no plausible legal theory—novel or otherwise—for holding private entities liable as government actors in the circumstances presented.”

Daniels is no doubt a creative litigant.  But as he learned the hard way, there is a fine line between “novel” and “frivolous.”  He crossed it and it cost him.

Jack Greiner is a partner at Faruki PLL law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

This article originally appeared on Cincinnati Enquirer: Strictly Legal: Does First Amendment apply to YouTube, Google