The Truth About the First Amendment and ‘Public Forums’

The First Amendment guarantees some of our most basic freedoms as Americans, including freedom of religion, freedom of assembly, freedom of the press, and what we know it for best—freedom of speech. To most of us, this fundamental right seems like a given. But as our world grows beyond what it was when the amendment was conceived, what place does the First Amendment have in our modern lives on and offline?

Recently, a U.S. court decided that the social media platform YouTube is not a ‘public forum,’ or a place where everyone’s rights to free speech are protected. This ruling came after a case involving the conservative YouTube channel PragerU.

YouTube was sued by PragerU after the channel noticed they were being demonetized and restricted to adult-viewing only. They pointed out that videos displaying liberal views did not receive the same treatment and that they were being censored by the platform. However, YouTube is not held subject to the First Amendment, as it is a privately-owned company. Even as the platform has a reach of over a billion people and is frequently used to speak on public issues, free speech only covers government censorship.

Only in special cases does the First Amendment apply to private forums. If a state actor like a government agency or official uses social media to discuss public issues, it becomes a public forum.

Madison lawyer Christa Westerberg worked on a similar case involving three Republican Wisconsin legislators who used the social media platform Twitter in order to communicate government happenings. The officials proceeded to block one user because of their viewpoint, which came in violation of the First Amendment. This is a rare example of how private forums can be turned into so-called ‘public forums.’

YouTube’s case is only one point in a growing conversation on Internet censorship and content moderation by big tech companies such as Facebook and Google. However, it also plays into another issue taking place right in our own city. The Madison schools are considering implementing policies that restrict the voices of school publications, claiming schools are non-public forums.

In the end, YouTube and PragerU may not be one of our biggest worries after all.

[Sources: BBC; The Hollywood Reporter; Wisconsin State Journal]

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