Spring 2022 Symposium

Introduction

On February 24, 2022, the Russian military invaded its neighboring country, Ukraine. Russian President Vladimir Putin has maintained that his main goal was to liberate the people of Eastern Ukraine, whom he believes to be valid Russian nationals, and to annex the territories in which they live. [1] Between Russia’s February invasion and April 22, 2022, the United Nations Human Rights Office reported 5,381 Ukrainian civilian casualties. [2] Critics of the conflict, including the United States, the European Union, and human rights groups like Amnesty International, argue that these casualties are a display of unnecessary aggression and human rights violations on the part of the Russian government. [3]

In response to the substantial violence of the conflict, the United States and the European Union, among others, have enacted extensive sanctions against Russia. These include blocks against Russian access to government funds held in international banks, trade tariffs, and embargoes on imports from and exports to Russia. [4] These sanctions have been adopted by private companies in the United States, including YouTube, a user-based video-sharing platform. In response to the public perception of Russian aggression in Ukraine, YouTube blocked all accounts funded or owned by the Russian government, officials of the Russian government, and individuals associated with the Russian government on March 11, 2022 [hereinafter referred to as the “action”]. [5] Additionally, on April 9, 2022, YouTube extended their action to include the removal of the account and channel of Duma, the lower house of Russia’s parliament. In justifying both parts of the action, the platform cited both the relevant sanctions against Russia and an internal policy which prohibits accounts that trivialize well-documented violent events, assumedly in response to the Russian government’s social media propaganda regarding the current conflict in Ukraine. [6]

While YouTube’s action is, as will be discussed, inherently legal, it has brought forth considerable cultural and political consequences, namely an uninformed American public and a social media platform acting as a government. This article will argue that YouTube’s action is overtly dangerous, as the platform has taken on the role of a nation-state in its shaping of the American public’s perception of their government’s involvement in the conflict between Russia and Ukraine.

First Amendment Concerns

An analysis of YouTube’s action first requires an understanding of its overarching legality. The most obvious possible illegality would be a violation on YouTube’s part of its users’ First Amendment right to free speech, free expression, and free association. The First Amendment states that “Congress shall make no law…abridging the freedom of speech.” [7] The keyword, however, is Congress. The First Amendment applies only to government action; private actors are not required to uphold other individuals’ freedom of speech. [8] In short, YouTube is a private company with no affiliation with the United States government. In fact, the Ninth Circuit deemed that YouTube’s content consists of private property, which guarantees that the platform cannot be classified as a public forum that would otherwise be subject to upholding First Amendment protections for its users. [9] As such, YouTube is not held to any First Amendment protection standard.

The presence of United States sanctions against Russia, however, brings the public institution of government into the First Amendment discussion. In response to Russia’s invasion of Ukraine, the United States, with the G7 and European Union, launched sanctions against Russian enterprises, including the country’s economic affairs, weapons procurement, and cyber activity. [10] While the sanction does not specifically require that YouTube restrict the online activity of the Russian government and its affiliates, YouTube faced strong pressure to cut ties with the country on its platform. [11] This pressure stemmed from both the country’s sanctions and President Biden’s Executive Order No. 14065, which bans United States imports of goods, services, or technology from Russia. [12] YouTube’s blocking of the Russian government’s channels aligns itself directly with this executive order; the platform immediately halted the import of technological media from the Russian government. The influence of this order on YouTube’s action thus raises another First Amendment question: Does the executive order constitute government interference in the rights to free speech, and thus violate the First Amendment? The short answer is no. Firstly, the United States Constitution and its amendments apply only to those on United States soil. Social media platforms do not qualify as United States territory, as they are private companies not owned by or associated with the United States government, so government influence on the removal of the Russian government from a private company like YouTube does not violate the First Amendment. Additionally, any prohibition of material support for a violent foreign organization, such as the current Russian government, does not violate individuals’ freedom of speech or freedom of association. [13] Thus, on its face, YouTube’s action is legal; the blocking of individuals and entities from their platform does not violate any First Amendment rights to free speech because the platform is a private entity, regardless of the influence that the government’s imposition of Russian sanctions may have had.

YouTube’s Justification for Intervention

The legality of the action, however, does not by any means force YouTube to act, raising the question of why the platform chose to block all Russian government accounts and affiliate channels. In an email regarding their initial action blocking accounts affiliated with the Russian government, a company spokesperson explained that the platform’s policies prohibit content “denying, minimizing or trivializing well-documented violent events.” [14] While YouTube’s policies and their creation are internal affairs, it can be assumed that their action follows a politicized model of corporate social responsibility, in which a private company adjusts its policies and self-regulates its content to align with or contribute to morally-accepted societal goals. [15] Supporting Ukraine during its conflict with Russia is one of these morally-accepted societal goals. Currently, eighty-two percent of Americans see Russia’s involvement in Ukraine unfavorably. [16] YouTube’s action was likely intended to align with this public conviction of Russia’s unfavored aggression in Ukraine, as a company like YouTube that relies solely on user participation would also rely on user support regarding political hot topics.

YouTube as a Political Powerhouse

More broadly, YouTube’s action stems from government politics, particularly the sanctions that the United States placed on the Russian government. As previously discussed, YouTube’s action is a display of the platform aligning itself with federal sanctions against Russia. The platform is not, however, required to align its policies with those sanctions. President Biden’s Executive Order No. 14065 does not explicitly state that social media platforms must cut ties with the Russian government, its channels, or its affiliates. [17] The section of the executive order that could be applied to YouTube’s action prohibits “the importation into the United States, directly or indirectly, of any goods, services, or technology [from Russia].” [18] User-generated media content posted to YouTube’s website is a) not a “good,” as it is not tangible material property, b) not a “service,” as it is not some form of useful labor, and c) not “technology,” as it is not machinery or equipment developed from the practical application of scientific knowledge. [19] Some may argue that YouTube is included under the umbrella of the United States’ sanction against Russia, because YouTube’s platform is inherently serving its users, making it a service platform. However, the question here surrounds the content –  YouTube’s user-generated video content is not a service in and of itself, though YouTube as a platform may be. As such, YouTube’s content does not qualify under any element of the executive order’s ban on imports, so their supposed import of Russian videos onto their platform does not violate the terms of the executive order.

Because the platform’s action was not required by President Biden’s executive order, the action becomes classified as an internal YouTube decision. YouTube has effectively involved itself in a political affair that it was not required to take part in, raising a question of whether YouTube wields substantial political power both within and outside of the conflict between Russia and Ukraine. Because it is a social media platform with content submitted by the general public, the platform already has a vested influence on the American public. Their action of aligning their policy with enacted government sanctions serves to enhance that influence, in that it brings to light the possibility of YouTube wielding substantial political power and the ability to influence the political perceptions of the American public.

That is, however, just a possibility. There is no guarantee that YouTube does hold such power, or that the platform would flex such power if was held. Thus, the question is raised: Is it realistic to assume that media platforms have the power or ability to influence public perception to that extent? The answer lies in a historical analysis of how media depictions have influenced conflicts in the past. A prime example is the narrative of American intervention in the Vietnam War, which was the most recent display of United States intervention in an excessively violent conflict between other countries, particularly under this level of public perception and scrutiny. During the Vietnam War, there was no social media akin to YouTube. American public perception of the war was instead shaped by print and television media. The public’s perception of its country’s initial intervention in Vietnam was narrated by Tom Dooley, a writer turned public spokesperson for United States intervention. Dooley characterized Vietnam as a country that needed to be saved by the United States, and the American public believed it, launching full public support for United States intervention in Vietnam. [20] Soon after, the public’s perception of the war was again shifted by media coverage of American military failures like the Tet Offensive, in which front-line journalists characterized the Vietnam War as one that could not feasibly be won. [21] The American public quickly turned against the war, and the continued negative journalistic depiction of the war sparked anti-war protests across the country. Then, once again, the public perception shifted after the United States’ withdrawal from Vietnam, when news media began to depict American veterans as heroes rather than ordinary people. [22] The public perception followed, and the Vietnam War is now remembered as a noble American effort.

The narrative of the Vietnam War and American intervention highlight the fact that media depiction is extremely influential on public opinion. The public’s perception of its country’s intervention in another country’s conflict was largely, if not wholly, shaped by how the media depicted it. Though journalistic news media took the place of today’s social media during the Vietnam War, the public understanding of American intervention in Vietnam reveals that, historically, the American public’s perception of their government’s actions is reliant on how such actions were portrayed in the media.

Understanding the explicit power that the media held during the Vietnam War, however, begs a question of whether YouTube’s role in the current conflict between Russia and Ukraine is analogous. Does YouTube actually have the same amount of power? The short answer to this question is yes, because YouTube is an important contributor to the free market of ideas. The notion of a marketplace of free ideas and expression was coined by John Stuart Mill, an American philosopher who believed that society would benefit from a metaphorical marketplace in which individuals speak and exchange ideas freely. [23] This metaphor has been widely applied to the First Amendment, in that its intention is to protect this free and independent public forum of ideas in American society through which the best ideas will prevail. At its core, however, YouTube is not a public forum. [24] It is a privately-owned platform that consists of individual users posting and watching individually owned and posted videos. The platform’s content does, however, still contribute to the marketplace of ideas; YouTube is, in essence, a compilation of many differing perspectives. The removal of a certain perspective – for example, that of the Russian government – from the platform poses a barrier to the market of ideas that the platform offers. In other words, the fact that YouTube’s content is entirely user-generated means that the platform’s decision to remove one perspective from its site has the power to inherently shift or shape the dialogue regarding any given topic.

Meet YouTube, Our Newest Nation-state

The next question raised is, admittedly, so what? Why does it matter that YouTube has the ability to shape public perception in such a powerful way? It matters because YouTube’s action is a novel display of a social media platform acting in the role of a nation-state, through what is effectively an economic embargo. On February 25, 2022, before the platform banned Russian state-funded media channels, it stopped the monetization of all of those channels’ videos. In simpler terms, the platform stopped playing paid advertisements before and during those channels’ videos. [25] In tandem with the subsequent banning of all media from those channels, the platform’s action qualifies as, at its core, a YouTube-enacted embargo against Russia. The only institutions that currently have that much power – the power to decide and regulate what is publicly discussed through the perspectives provided – are national governments. A deliberate redirection of a political conversation, as YouTube has done, is a move that only a nation, if even a nation, should have the power to make, as such action propogandizes public opinion.

Acknowledging that YouTube is wielding an exceedingly high level of political power for a social media platform, however, does not sufficiently prove that the platform is acting as a nation-state. Establishing YouTube’s role as a nation-state first requires proof that YouTube’s status, role, and actions satisfy every element of a nation-state. In essence, a nation-state is a sovereign territory whose members identify as a cohesive community. [26] To determine whether YouTube fits these criteria, it will be beneficial to break them down into separate elements: sovereign, territory, and community.

a.     Sovereign: A sovereign entity is autonomous within its sphere of influence. [27] While YouTube is based within the United States and is subject to some of the country’s rules and regulations, within the sphere of the conflict between Russia and Ukraine, the platform is exercising sole control over its content. They are not following any strict rules, and there are no regulations or orders imposed on the platform by the United States government. Instead, they are creating and adhering to policies of self-regulation, acting in a wholly autonomous fashion.

b.     Territory: A territory is defined as an assigned area controlled by an authority. [28] Though YouTube’s online platform does not control a strict land area, it has sole ownership and control over its online site, which is inherently a territory within the internet.

c.     Community: A community consists of a body of individuals who are unified by some commonality, including a common interest. Those who create and publish content on YouTube (or “YouTubers”) share an interest in video creation, and those who watch such content share an interest in video-viewing. Either way, the body of individuals who use the platform are brought together by a common interest in online video-based content.

As such, YouTube meets all of the requirements for a nation-state. The platform’s action is thus a display of political power at the high levels of a national government.

The Political Consequences of YouTube the Nation

A social media platform acting as a nation-state is an unprecedented reality. In its new role as a nation-state, YouTube has intentionally erased the Russian narrative, however propagandized it may be, from the American public’s perception of the conflict. The consequences of this erasure are dangerous; they limit both the public’s access to the truth and the United States government’s effectiveness as an institution.

In its most basic sense, YouTube’s action severely hinders the public’s actual perception of the conflict as discussed. The platform has restricted the American public to one side of the story – an inherently anti-Russian perspective – by banning the Russian government’s channels but not the channels of the Ukrainian government. Regardless of the excessive violence perpetrated by the Russian military in Ukraine and spoken about on Russia’s YouTube channels, the public has a right to discern the conflict for themselves. How can the American public truly understand what exactly their government is involved in if they do not have access to the whole story?

YouTube’s increase in political power as a nation-state also facilitates a decrease in the political power of the United States government. YouTube is already acting with so much public influence, as social media platforms regularly do. Pairing that influence with the political power of a nation-state means that the platform has an inordinate amount of political influence on the American public, arguably more than the federal government currently has. YouTube is directing the narrative, and subsequently heavily influencing the American public’s perspective of the conflict, which is a dangerous power in any institution, especially a nation-state.

Section 230 Needs to be Modernized

YouTube’s action is inherently dangerous to the American political climate as we know it, largely because there are currently no regulations in place surrounding what social media platforms can remove from their sites. So much of our society, both culturally and politically, revolves around social media and internet platforms, and Section 230 of the Communications Decency Act has maintained that these platforms have all but free reign. A modernized verion of Section 230, on the other hand, would set precise restrictions, governed by the Federal Communications Commission (FCC), regarding exactly what content and types of content social media platforms can legally ban or remove from their sites.

Section 230 holds that no internet service platform, such as YouTube, can be held liable for the content posted by private users on their platform. [29] Thus, as an internet service platform, YouTube has no legal obligation to remove content, even if it has the assumed adverse consequence of minimizing the violence of a well-documented conflict. They also do not have a legal obligation to keep content that does not align with their internal policies on their platform.  It’s important to start with a clarification, however: I am not contending that platforms should be held liable for all of the user-generated content that is posted on their sites. Such liability would facilitate much stricter policies that only further restrict users’ free expression. Nor am I arguing that, without the protections that Section 230 offers, YouTube would have been held liable for its action of removing the Russian government and its affiliates from its site. Regardless of the immunity social media platforms are provided, their status as private companies allow them to create their own policies and regulate the content on their platforms as they wish, as there are currently no laws in place that regulate private companies’ policies and terms of service. Instead, there should be overarching rules in place regarding what content platforms can ban or remove. Currently, that decision is the choice of each individual platform, for the most part. Each platform is responsible for creating and maintaining its own policies and guidelines for what content is appropriate for its platform. These content decisions should be overarching, and companies should be held liable for removing content too freely. While this liability cannot and should not be placed under the First Amendment’s coverage of free speech, it should be held in a reformed and modernized version of Section 230.

Under this modernized version of Section 230, social media platforms would be much more regulated by the Federal Communications Commission (FCC). The FCC would confirm that the content removed, and the accounts banned, from social media platforms fall under specific categories: a) overt misinformation, b) content that is overtly and unnecessarily violent or gruesome, c) content that incites or incentivizes violence, and d) spam content, among the other categories of content that social media platforms are currently liable for under the current Section 230 (including intellectual property infringements and overt threats of violence or other federal crimes). This regulation would be conducted by a new FCC task force, which would oversee and regulate the algorithms used by social media platforms to determine what content is removed from their sites. This is not to say that platforms would be held liable for keeping such content on their sites; in fact, the presented amendment of Section 230 proposes the exact opposite. The liability would only come forth in the form of platforms overregulating the user-generated content on their sites. Such regulation would prevent issues such as YouTube’s action as a nation-state, in that platforms would have an overarching authority that would determine whether the sites are restricting users’ free speech in an overbearing way. Ultimately, the intervention of the proposed FCC task force would stop social media platforms from forcing the direction or perspectives of the public’s dialogue in the way that YouTube has during the conflict between Russia and Ukraine.

Potential critics of the proposed amendment of Section 230 may argue that FCC regulation of social media content constitutes a government overreach into the actions of private platforms. However, YouTube’s action has shown that, without regulation, social media platforms can, and do, act as governmental bodies or nation-states on their own. The dangers of this platform freedom – the disregard for the public’s ability to participate in a free marketplace of ideas – suggest that government reach into the actions of private platforms like YouTube is not only acceptable but also necessary to maintain a well-informed public.

Currently, social media platforms like YouTube legally wield far too much power, both politically and socially. While Section 230 of the Communications Decency Act was intended to facilitate a marketplace of ideas for which platforms cannot be held liable, its overarching immunities allow for exceedingly powerful social media platforms. The proposed reform would curb that power and facilitate an online community with access to many differing perspectives, both culturally and politically.

References

[1] Paul Kirby, Why Has Russia Invaded Ukraine and What Does Putin Want?, BBC News (Apr. 7, 2022), https://www.bbc.com/news/world-europe-56720589.

[2] Office of the High Commissioner for Human Rights, Ukraine: Civilian Casualty Update 22 April 2022, United Nations Human Rights (Apr. 22, 2022), https://www.ohchr.org/en/news/2022/04/ukraine-civilian-casualty-update-22-april-2022.

[3] Russia/Ukraine: Invasion of Ukraine is an Act of Aggression and Human Rights Catastrophe, Amnesty International (Mar. 1, 2022), https://www.amnesty.org/en/latest/news/2022/03/russia-ukraine-invasion-of-ukraine-is-an-act-of-aggression-and-human-rights-catastrophe/.

[4] Fact Sheet: United States, G7 and EU Impose Severe and Immediate Costs on Russia, The White House (Apr. 6, 2022) [hereinafter Sanctions Fact Sheet], https://www.whitehouse.gov/briefing-room/statements-releases/2022/04/06/fact-sheet-united-states-g7-and-eu-impose-severe-and-immediate-costs-on-russia/.

[5] Aditi Sangal et al., YouTube Blocks Russian State-Funded Media Channels Globally, CNN World (Mar. 12, 2022), https://www.cnn.com/europe/live-news/ukraine-russia-putin-news-03-11-22/h_bcddbab56873b9ed9f94e63301e8fe62.

[6] Nico Grant & Mark Bergen, YouTube at Risk of Russia Ban After Facebook Deemed Illegal, Bloomberg News (Mar. 21, 2022), https://www.bloomberg.com/news/articles/2022-03-22/youtube-at-risk-of-russia-ban-after-facebook-is-deemed-illegal.

[7] U.S. Const. amend. I.

[8] See, E.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1924, 204 L. Ed. 2d 405 (2019).

[9] Prager Univ. v. Google LLC, 951 F.3d 991 (9th Cir. 2020).

[10] United States Sanctions on Russian Persons, International Trade Administration (Mar. 4, 2022), https://www.trade.gov/country-commercial-guides/russia-sanctions. See also Sanctions Fact Sheet, The White House (Apr. 6, 2022).

[11] See Mark Bergen, Google Faces Sanctions Dilemma With Pro-Russia YouTube Channels, Bloomberg News (Feb. 24, 2022), https://www.bloomberg.com/news/articles/2022-02-24/google-faces-sanctions-dilemma-with-pro-russia-youtube-channels.

[12] Exec. Order No. 14065, 87 FR 10293 (Feb. 21, 2022).

[13] See Holder v. Humanitarian L. Project, 561 U.S. 1, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010).

[14] Nico Grant & Mark Bergen, supra note 6.

[15] E.g., Nancy Lee & Philip Kotler, Corporate Social Responsibility Doing the Most Good for Your Company and Your Cause (2013).

[16] RJ Reinhart, U.S. Public Sees Russia-Ukraine Conflict as Critical Threat, Gallup (Feb. 25, 2022), https://news.gallup.com/poll/390140/public-sees-russia-ukraine-conflict-critical-threat.aspx.

[17] Exec. Order No. 14065, supra note 12.

[18] Id.

[19] U.C.C.§ 2-105(1). Service, Merriam Webster Dictionary, https://www.merriam-webster.com/dictionary/service (last visited Apr. 1, 2022). 20 U.S.C. .§ 7801 (50).

[20] See Thomas Dooley, Deliver Us From Evil (1956). Accord Christian G. Appy, American Reckoning: The Vietnam War and Our National Identity 14 (2015).

[21] Appy, supra note 20, at 287.

[22] Id. at 214.

[23] See John Stuart Mill, On Liberty (1859).

[24] See Prager Univ. v. Google LLC, 951 F.3d 991 (9th Cir. 2020).

[25] YouTube Partner Program Overview and Eligibility, YouTube Help Center (last visited Apr. 24, 2022), https://support.google.com/youtube/answer/72851?hl=en.

[26] Nation-State, Britannica, https://www.britannica.com/topic/nation-state (last visited Apr. 16, 2022).

[27] Sovereign, Merriam-Webster, https://www.merriam-webster.com/dictionary/sovereign (last visited Apr. 16, 2022).

[28] Territory, Merriam-Webster, https://www.merriam-webster.com/dictionary/territory (last visited Apr. 16, 2022).

[29] See 47 U.S.C.A. § 230.