If you have ever been in doubt about what YouTube is, a court has prodded you in the right direction by decreeing what it is not. YouTube is not a website.
If that last line has you scratching the back of your head, you are not alone. Even this writer, who visits YouTube daily in a web browser, is finding it challenging to follow the mind of the court in this determination.
The Fifth Circuit Court of Appeals ruled in favor of the Attorney General of Texas, Ken Paxton, in a suit on HB 20, which incredibly bans apps and websites from moderates posts from the inhabitants of Texas. Paxton had requested a stay on a previous ruling that blocked the law while the case proceeded. This means HB 20 is in effect with immediate effect.
HB 20 says social media platforms are not allowed to remove, downrank, demonetize, or discriminate against content because of the user’s point of view or another person’s. The law applies to social media networks with more than 50 million monthly active users. It also applies to any platform that allows users to communicate with one another. However, there is an exception for internet service providers and media sites.
Anticipating a blowback, HB 20 includes a provision that bans social media platforms from blocking users from Texas, which is apparently the easiest way for tech companies to stay out of legal problems.
In effect, HB 20 says if enough people like your social media network, you could outgrow your ability to maintain a community standard. The legal chaos that could result will be entertaining on so many levels.
During a hearing, Paxton and an attorney for NetChoice appeared in front of Fifth Circuit judges, where the AG argued that social media companies could be seen as common carriers because they have enormous market power. As such, they should just be dumb pipes for information, like phone companies operate. The problem is phone companies are not even mandated by any law to act that way.
This was enough to sway the panel of judges, who were appropriately alarmed by the imaginary scenario of Twitter banning a class of comments.
Things got interesting when the court moved to discussing Section 230, which protects entities that use and manage interactive computer services. Many courts have applied the term “interactive computer services” to a variety of services, including web forums and email listservs. However, as NetChoice’s lawyer made a point that websites should take advantage of the First Amendment provision, one of the three judges could not grasp the term.
The Judge then claimed, “It’s not a website. Your clients are internet providers. They are not websites.” She was referring to websites like Facebook, YouTube, and even Google.
Meanwhile, any tech-savvy individuals, including teens, will tell you for free that YouTube is a website. They can even demonstrate it to you with the smartphones they seem never to be able to do without.