Gabriel Sanchez, a judge for the Ninth Circuit, spent his first year of college studying Argentine national politics. After law class, while working for a large company, he won an award from the ACLU. Eventually, as California Gov. Jerry Brown’s leading legitimate adviser, he oversaw the litigation that found overcrowding in California’s prison to violate the Eighth Amendment because they constituted” cruel and unusual” punishment, a novel legal argument that, while upheld by the Supreme Court ( in a 5- 4 vote ), drew sharp criticism from the judge’s liberals, including Antonin Scalia, who called it “perhaps the most radical order issued by a jury in our World’s history”.
Given that background, one might assume Judge Sanchez views himself as a progressive who relies on liberal figures like Thurgood Marshall and William Brennan to provide instruction.
He’s no, at least no based on my experience with him last month.
Our conversation occurred in Robert F. Kennedy Jr.’s lawsuit Kennedy v. Google, in which he claimed the tech giant had blocked him from being censored on YouTube during his political campaign. ( That case is being handled by me as the lawyer. ) YouTube took down two of his movies questioning the efficiency of the Covid- 19 vaccinations and epidemic lockdowns, stating it was health propaganda.
The event is like Murthy v. Missouri, which was argued at the Supreme Court in March. But it’s not parallel. We contend, among other things, that Section 230 of the Communications Decency Act created public forums for big internet-based programs like Google and YouTube where stance discrimination is not tolerated. In trade, they got resistance for the conversation that occurs on their websites.
Tech firms have long asserted that they are forums that are available to everyone. They are not publishers who can vouch for the information that appears on their websites. In response, they argued that Section 230 is” things like a report table in a village square, where people come and go, leaving their information.”
As a result, unlike producers, software companies such as Google got exemption over the information that appears on their sites. And their websites ‘ public accessibility allowed them to benefit from legal guidelines like the anti-SLAPP statute in California.
That makes feel. YouTube undoubtedly appears to be a public platform. Millions of people visit it every day to obtain information and discuss the problems of the day. However, sites such as YouTube are easily available to anybody who can find online, which accounts for 94.6 percent of Americans. Yes, Google does possess the YouTube site title. That makes it profitable from the activities on the website. But it does not possess the computer. It has no power over who enters the page.
A Liberal Supreme Court’s Past
For decades, Democrats championed the flexibility of the computer. Barack Obama elevated online campaigning to a new stage in 2008. According to The Guardian, that was because” ]t ] here are no barriers to entry on sites like Facebook and YouTube. Because everyone can participate, power is distributed toward the ends. These are the pinnacles of open discourse.
Old-fashioned progressives like Marshall and Brennan may have concurred with that.
They were both on the Supreme Court during the 1960s, a time that saw a marine change in the Supreme Court’s legal law. This was a time in which, to offer one professor, “liberal protesters exercised almost total control over the Court’s choices”. This was the time of Gideon v. Wainwright ( free counsel for indigent criminal defendants ), Griswold v. Connecticut ( the right to privacy ), Miranda v. Arizona ( the right- to- remain- silent warning ), and Tinker v. Des Moines ( free speech for students in public schools ).
At the peak of this era ( 1968 ), the Supreme Court decided Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. It was discovered that Americans have a right to free speech ( picketing ) on publicly accessible private property ( a shopping center ).
Justice Marshall wrote the majority viewpoint. He noted that as millions of Americans left cities and towns — with their major roads and business districts — for the cities, huge buying centers like Logan Valley had sprung up all over America after World War II. The new city square had been transformed from the shopping centres. And he claimed that” the State does not outsource the energy, through the use of its breach laws, wholly excluding those members of the public who wish to exercise their First Amendment right on the premises in a way and for a purpose generally consistent with the use to which the home is actually put” and that” the use to which the home is actually put is.
Liberal icon William O. Douglas echoed that sentiment, writing:
Logan Valley Mall is not intended for public use in the same way that Marsh v. Alabama intended, but it is obvious that respondents have made the facility available for public use. In order to draw customers and facilitate the delivery of goods, they designate the mall as “public.” The Weis Supermarket’s labor conditions policy is in direct relation to that department’s retail business. Why should respondents be able to prevent this instance of running a public company in the name of “private property”?
Conservatives were furious. One of the most disappointing Democrat appointees ever, Byron White, who was appointed by John F. Kennedy, emphasized the center’s private ownership and stated that “it is a place for shopping, and not for picketing.”
That year, Richard Nixon was elected president. By 1972, Nixon had appointed four new Supreme Court justices ( Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist ), all staunch conservatives. Logan Valley was covered in ice. And by July 1972, it was effectively overruled in Lloyd Corp. v. Tanner.  ,
The decision was contentious, with the four Nixon appointees joining White in finding that no one had a First Amendment right to picket on a privately held shopping center in Portland, Oregon.
Marshall, predictably, was upset. One of the most eloquent defenses of free speech rights, as well as a pragmatic view of the direction that must be taken, is included in his dissent. He noted, for instance, that” [t]he more an owner, for his advantage, opens up his property for use by the public in general, the more his rights are squelched by the statutory and constitutional rights of those who use it.”
He also issued a warning that ought to be ingrained in our thoughts today:
We must keep in mind that we are striking a balance between the right to speak and the right to exercise control over his or her property, as defined in our hierarchy of values. The balance can only be reached in favor of speech when the competing interests are fairly balanced.
Logan Valley was dead by 1976, and Hudgens v. NLRB‘s Supreme Court finally overturned its decision. However, other judges recognized the value of safeguarding speech rights in the locations where people gather. A liberal California Supreme Court, which in the Pruneyard case determined that people have a right to free speech in a large community shopping center like the Logan Valley mall and Lloyd Center, led the state courts to take the helm.
Pro- and defense cases involving private property
Why does this matter? It matters because when the Ninth Circuit defends Google’s alleged right to remove Kennedy’s speech from YouTube, as it likely will, it will reference cases like Lloyd Corp. and Hudgens and raise the importance of private property rights. In a 2019 case involving the Supreme Court, which was based on the opinion of Justice Brett Kavanaugh, Justice Brett Kavanaugh, and the private company that runs a public access TV station in New York City, it will rely on Halleck v. Manhattan Community Access Corporation. In Halleck, it will ignore the dissention written by Sonia Sotomayor and joined by liberal hero Ruth Bader Ginsburg. It will ignore the pro- speech dissents written by Marshall, Brennan, and Douglas in Lloyd Corp.
In summary, it will ignore the very principles that judges like Gabriel Sanchez claim to uphold.
How sad. I’ve never believed in judicial activism. Judges have a part to play in the legal process. It’s not making laws.
But constitutional law is different. Free speech rights are different. Just a few generations ago, women could not vote. Jim Crow laws kept many blacks from voting, too. Now we have a nonwhite female vice president. A black man served two terms as president. Women fill the corridors of authority. Speech helped to advance that progress, not by means of combat.
But speech does n’t matter if it ca n’t be heard. Marshall was aware of that. Because of this, he thought that the Logan Valley and Lloyd Corp. shopping centers were so significant. That’s where speech needed to occur to have an effect.
He would have thought the same thing about YouTube.
Let’s see if Sanchez realizes that.
Scott Street is a consultant and attorney for Democrats in Los Angeles. He frequently writes about legal and political issues.
