Lawsuit by Black YouTubers against YouTube faces “uphill battle” (2024)

Content moderation is hard —

An expert says Section 230 gives YouTube broad immunity for content decisions.

Timothy B. Lee -

Lawsuit by Black YouTubers against YouTube faces “uphill battle” (1)

Four Black YouTubers have sued YouTube, arguing that the online platform discriminates against Black content creators like themselves.

YouTube "knowingly, intentionally, and systematically employs artificial intelligence algorithms, computer and machine based filtering and review tools to 'target' Plaintiffs and all other persons similarly situated, by using information about their racial identity and viewpoint to restrict access and drive them off YouTube," the lawsuit states.

In their 103-page lawsuit, the four women detail a variety of challenges they've faced over the years as YouTube content creators. On several occasions, YouTube demonetized some of their videos, blocking them from generating revenue via ads. They say these decisions were made based on vague criteria with no meaningful opportunity to appeal. They also fault YouTube for failing to take down—and in some cases even promoting—"hate speech videos targeting the African American community."

The plaintiffs have also apparently had some difficulties with YouTube's copyright takedown system. The lawsuit indicates that multiple plaintiffs had videos taken down over copyright concerns—perhaps due to the inclusion of significant clips of copyrighted videos that were included for purposes of commentary.

“An uphill battle”

Eric Goldman, a legal scholar at the Santa Clara Law School, told Ars that the plaintiffs face an "uphill battle." The stark reality for these and other plaintiffs is that US law—specifically, Section 230 of the Communications Decency Act—provides online platforms with broad immunity for their content hosting decisions. Goldman told Ars that Section 230 is likely to preempt most of the claims in the lawsuit, allowing YouTube to dispose of it quickly.

In other cases, it's simply not clear if the plaintiffs have a viable cause of action. The plaintiffs make a big deal out of YouTube's demonetization decisions. But US law—including the First Amendment—gives advertisers and ad networks broad discretion to decide whom they want to do business with. YouTube or its advertisers, for example, would be well within their rights to decide they would rather not run advertisem*nts on videos about controversial political topics—or on channels by controversial figures. It's entirely legal for advertisers to take sides in political debates. So even if it were true, as plaintiffs claim, that YouTube was systematically demonetizing videos about the Black Lives Matter movement, that wouldn't be against the law.

While the lawsuit makes strong claims that YouTube systematically discriminates against Black YouTubers, the lawsuit has little if any concrete evidence of this. Of course, it's possible that evidence could come to light at a later stage of the litigation. But things may never get that far; we can expect YouTube to seek dismissal of the lawsuit based on Section 230 before it reaches the discovery phase.

For its part, YouTube denies the central claims in the lawsuit.

"We've gone to extraordinary lengths to build our systems and enforce our policies in a consistent way," a YouTube spokesman told Ars by email on Tuesday. "Our automated systems are not designed to identify the race, ethnicity, or sexual orientation of our creators or viewers. We have a dedicated team that systematically reviews all of our policies to ensure that they are current and draw the lines in the right places to keep our community safe without stifling YouTube’s openness."

No hate speech?

The lawsuit highlights the almost impossible challenge YouTube faces as it tries to satisfy the conflicting demands of millions of users with sharply divergent political views.

Goldman pointed out that the law firm that filed the lawsuit, Browne George Ross, has made this kind of lawsuit one of its specialties, representing plaintiffs from a range of perspectives, all of whom believe YouTube has treated them unfairly. The same firm filed a lawsuit last year on behalf of a group of LGBT YouTubers, claiming that the site was discriminating against them based on their sexual orientation. And the firm also filed a lawsuitin 2017 on behalf of conservative pundit Dennis Prager claiming that the site was biased against conservatives. A federal appeals court rejected Prager's lawsuit in February. The LGBT case is ongoing.

The four plaintiffs in the new lawsuit single out the work of two Black conservative pundits,Tommy Sotomayor and Candace Owens, for allegedly posting hate speech against African Americans. They fault YouTube for hosting and promoting their videos. The lawsuit claims that Sotomayor "regularly posts videos which promote violence against members of the African American community," while Owens "regularly posts videos disparaging male members of the African American community."

The lawsuit doesn't provide any specific examples of these pundits' alleged hate speech. At the same time, lead plaintiff Kimberly Newman has posted videos of her own that could plausibly be described as "disparaging male members of the African American community."

In recent weeks, Newman has posted a number of videos attacking Milwaukee sheriff David Clarke, repeatedly describing Clarke as a "coon"—a term used by some Black people as a derogatory for a Black person who sells out the African American community. After I emailed YouTube on Tuesday asking if this video met the company's content standards, the video was removedfor "violating YouTube's policy on hate speech."

Another video is still up as I write this on Thursday morning. It was posted last week and is titled "YOU DUSTY COON A$$ BIT@H NEED TO SHUT THE FU@K UP" (bowdlerization in original). It lambastes Alfonzo Williams, the Black sheriff of Burke County, Georgia, for defending the conduct of Atlanta police officers in the deadly shooting of Rayshard Brooks. In the video Newman describes Williams as a "deranged-ass coon" and a "chicken-eating mother-f*cker" along with other strong language.

In a 2016 video called "THE GAY AGENDA & THEIR BULLY TACTICS," Newman said that she was "sick and tired of some of the gay population—and I know they're not going to hear the some, because it's not the all out there are saying that sh*t—have this agenda where first and foremost they want to include the Black population with their agenda and their f*ckery and their bullsh*t." She objected to gay adoption because she worried that children would walk in on their parents having sex. In her view, seeing two men having sex would be more traumatizing for children than a straight couple having sex. "The sh*t is sick," Newman said of men having anal sex.

Another plaintiff, Catherine Jones, who posts to YouTube as "Carmen CaBoom," posted a video last year titled "What I Don't Like About Mexicans," where she complained that some "Mexicans" at a restaurant were "staring at me."

Jones insisted that she "had no problems with Mexicans." However, she said, "I guess they feel like if they look at you hard and nasty long enough you'll just go away. No, no no. They're Mexicans. I'm not going anywhere. If anything you're the one who is going to go anywhere if anybody has to go."

She warned Mexicans that "if you keep treating me like this I'm going to join Donald Trump and help him build the f*cking wall and discriminate against you and hurry up and get a lot of your asses out of the country."

YouTube didn't respond to an email asking if Jones' monologue was consistent with its policies. It's still up as I write this on Thursday morning.

Lawsuit by Black YouTubers against YouTube faces “uphill battle” (2024)


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