Comedian and commentator Steven Crowder recently announced that he is suing YouTube after receiving his second “strike” for posting offensive content. These strikes have resulted in the suspension of his show, demonetization (or inability to profit from views), and a complete disconnect with the nearly 5.7 million subscribers to his YouTube channel. This week we look at the facts of what lead to this, the inconsistency in enforcement against conservatives, and what we should do to push back.

Tim Doescher: From The Heritage Foundation, I'm Tim Doescher. And this is Heritage Explains.

Steven Crowder: As of last Thursday, May 14th, my lawyer, Bill Richmond, and I have filed a notice of a lawsuit against YouTube and are seeking an injunction to prevent them, to stop them from currently de-platforming us. I want to be really clear. This is different from claims and counterclaims, or people thinking that their content is being throttled. We've officially sent a notice of a lawsuit. Very different level. This is the big one, boys and girls.

Doescher: That's comedian and commentator Steven Crowder on a recent episode of his show, Louder with Crowder, Taking the Gloves Off.

Doescher: Over the past few months, he's been receiving strikes from YouTube for allegedly violating their harassment and cyber bullying policy. These strikes have resulted in the suspension of his show, demonetization, or the inability to profit from views, and a complete disconnect with the nearly 5.7 million subscribers to his YouTube channel. While the story is making headlines and the lawsuit will serve as a challenge to the way the system is currently set up, this is just another example of the scores of conservative people, feeling like they're being unfairly silenced by social media. It's happening. No question about it.

Doescher: But should conservatives like Crowder even be upset about this? Does it merit a lawsuit? What are those terms, and what are those conditions? What do they mean? Are they clearly defined? I mean, it's hard to hold someone accountable to terms that aren't clear to begin with.

Kara Frederick: When you look at the mistakes that are made, where maybe they'll pull down some content, maybe they'll de-monetize a specific influencer, you have to realize that these mistakes tend to only happen in one direction. And that does not redound to the benefit of conservatives. It's usually targeting conservatives. I don't think it was originally intended to just target conservatives, but it seems to have metastasized in that way.

Doescher: That's Kara Frederick. She's a research fellow in tech policy here at the Heritage Foundation. On this episode, she places the Crowder case in context, what it means for conservatives, and explains why social media companies must be clearer in defining, especially if they're going to continue to silence users.

Doescher: Well, Kara, this is your first time joining Heritage Explains because you're new to Heritage. So first of all, welcome to the Heritage Foundation.

Frederick: Thank you so much. I'm happy to be here. It's been a great three weeks.

Doescher: You have been very busy because this exact issue continues to just not plague us, but it is here, and it is real. And we're going to talk about a lot of the censorship issues that are happening through social media and various platforms like that. Your recent piece covers Steve Crowder. It's Louder with Crowder is the show that he has on YouTube. And it's a really good program. He's, as you call him, a conservative comedian, probably a commentator too, if anything. And he has been reprimanded, we'll say, on YouTube. He was just issued his second demerit, reprimand, what do you call it?

Frederick: A strike, a hard strike, in YouTube's parlance.

Doescher: A strike. A hard strike. Okay, a hard strike. So I guess, three strikes, and you're out.

Frederick: Precisely.

Doescher: Okay. He had one back in March, which completely demonetized. You can explain that. He was just issued his second. And then I think it's within 90 days, if he gets a third, he's gone forever.

Frederick: Exactly. You're exactly right.

Doescher: Okay. Explain a little bit of hat drives that system?

Frederick: Yep. These tech companies, in grappling with the plethora of content on their platforms, they basically developed a system. They call them community guidelines. Certain platforms call them community standards. They have to do with their terms of service as well. And when you're using a platform, you agree to their specific set of rules. I say specific. That's actually a misnomer because a lot of times these rules are extremely vague, and they change, depending on the situation. They change depending on who's in a leadership position at time. They're not always very specific, and that's part of the problem. They're not always transparent either.

Frederick: But they do issue some transparent guidelines, community guidelines, in particular, for YouTube. And what they say is you can't have three strikes on the platform within 90 days. That means if you do something wrong that they view to be in violation of their policies, their community guidelines, as they name them, then you get one hard strike. And that means you're demonetized. It's considered a warning. If you get a second hard strike, that's your second warning. If you get a third one, you're gone from the platform forever. So you should consider yourself warned.

Doescher: Yeah. Wow. Okay. We have a couple things here. The first thing I want you to do is to define or give me an example, if you can, of one of those vague guidelines that are almost impossible to meet.

Frederick: Yeah. Take the platform Twitter. Remember when the Hunter Biden, New York Post story came out?

Doescher: Yeah.

Frederick: And we saw that you were not able to share links related to the story. The New York Post, the paper started by Alexander Hamilton, was itself... The profile was suspended. They couldn't tweet from that account whatsoever. When that occurred, they said this story was in violation of their hacking materials policy. And that was, "Okay, we don't know where this laptop, and this information came from." They instituted it sort of in the wake of the WikiLeaks, which they felt had a political impact. And they didn't want to repeat that again because YouTube, all of these platforms, take a lot of heat when people attribute political impact to anything that platforms have done. They said that was in violation of their hacked materials policy. They later changed it, after there was an uproar, after this was deemed to be a legitimate story, and re-instituted New York Post, but not after a very, very long time.

Doescher: And the damage had already been done.

Frederick: Precisely.

Doescher: Yeah, and that's a really good example of all this. And so we get back to... Like we said, the damage had been done on the Twitter thing with the New York Post. And we get back to this YouTube thing with Steve Crowder and 5 million subscribers, 5 million followers, on YouTube. That's a heck of a lot of revenue that's generated through his channels. You can watch. A lot of people watch these things. They drive advertising revenue, YouTube benefits from it. He was demonetized after the first strike. Talk a little bit about what this has done. Is this happening to people on the left on YouTube as well? Or is this largely just there to deprive conservatives of the ability to make money on this?

Frederick: I don't think that was the original intent of the policy, but when you look at the mistakes that are made, where maybe they'll pull down some content, maybe they'll de-monetize a specific influencer, you have to realize that these mistakes tend to only happen in one direction. And that does not redound to the benefit of conservatives. It's usually targeting conservatives.

Frederick: Crowder is a big figure. He's a conservative influencer. Like you said, 5 million subscribers on YouTube. It means the breadth and the reach of his account is prodigious. He effectively has a target on his back, especially because of that first strike policy, because he's been pretty litigious when it comes to Facebook suspending some of his work as well. He's got a target on his back because of the breadth and the reach of his account, because so many people look at him as an example of both good information and bad information. Media Matters is all over these guys, just listening to hours of tape, trying to find something wrong.

Frederick: I don't think it was originally intended to just target conservatives, but it seems to have metastasized in that way.

Doescher: Did you see this video? I have yet to see it. My question is do you think what he posted was worthy of a strike?

Frederick: Well, there are two videos. And as I said in the Daily Signal piece, he's polemic. He's a comedian, he's edgy, he's a bit of a rabble rouser. I don't know if you saw him on Megyn Kelly's podcast, but he was great. They talked for hours. And I think a lot of the things that he spoke about were in defense of traditional American values, individual freedom. Nothing objectionable there, but he does try to be a little crazy.

Doescher: He's not scared to speak an opinion or a different viewpoint.

Frederick: Right? And we need that. And his whole change my mind shtick. He sometimes goes into the fray, and he gets dirty, but that's fine. We need the genuine interrogation of ideas of all kinds in America, where we were supposed to have a marketplace of ideas, and he's thrown himself into that. So, okay. Let him speak.

Frederick: The two episodes that we're talking about, that earned him the strike, the first one was because of COVID misinformation, according to YouTube's policies. The second one was because he was offering commentary on Ma'Khia Bryant's death. That was the woman who was shot, or the teenager who was shot in a police shooting, when she was blatantly trying to stab another girl, probably could have killed her. And he basically said not necessarily a bad shoot, according to police rules and whatnot.

Frederick: They thought he was glorifying violence and whatnot. But again, it comes down to the inconsistencies because I talk about in the piece, the Bill Maher Show, where Bill Maher, he laughs about David Koch's death. He says he hopes it was painful. And if Bill Maher, who actually, at this point, is probably one of the people who's standing up for free expression, paradoxically enough-

Doescher: Absolutely. That's bizarre. Yeah, it is so bizarre.

Frederick: But if his video is still searchable, if it's still up on his show's page, then why are we taking down these Steve Crowder accounts? Why are we threatening him with, like you said, full demonetization, not allowing him to make a living off this platform? You hear this common refrain. These are private companies, they shouldn't be allowed to, they should be allowed to do whatever they want. And he doesn't have a right to earn a living on something they've created. But when the rules are applied so inconsistently, when they are enforced pretty much on big conservative influencers like this, then you have to question is this process really fair? At least be transparent. But that's not actually happening right now.

Doescher: The piece is Steven Crowder is Suing YouTube Over Vague Rules, but it's not just about him. This was posted on the Daily Signal, Kara. I'm going to link to it.

Doescher: And going along with what you were just talking about, you said, "The fight is not about Crowder. Instead, it's a crisis of the tech titan's own making. Inconsistent enforcement of vague rules"—boom, inconsistent again—"the opacity of content moderation practices, and a lack of recourse are the hallmarks of big tech today."

Doescher: I think that that right there draws the line, and I want to continue. Draw the line for us just a little bit more. There's a big debate here in conservative Washington, DC as to how to deal with this. A lot of voices say we just leave it alone. We let the market decide. It's the Libertarian, market-driven argument. A lot of the tech companies are investing a lot of money for people to say that.

Doescher: And then others on the left say, "We need more of this. And we should actually use the government to ensure that we have more content moderation."

Doescher: Okay. Given the increase in this inconsistent enforcement and really clear bias toward conservatives, where does Heritage, where do conservatives, where should they land on this?

Frederick: I think we should always err on the side of free expression. And I think the platform should do that as well. We talk about there's a multifaceted approach that's needed, and there are room for the markets. Absolutely. When we come up with alternative platforms, technical solutions, not just at the application layer of the technical stack, but at the ground, more foundational layers of the technical stack.

Frederick: A good example of this is during the Parler episode. When Parler was yanked from Apple and Google, okay. That's at the application layer. There are alternatives, not necessarily comparable with regard to their market share, but there are different Twitter competitors, like Mastodon, that exist as well. Okay. Maybe, that's fine. The market sort of works there, but they still don't have, again, the market share. They're not fully developed.

Frederick: But then when you get to the cloud hosting services, AWS, Amazon Web Services, they decided to yank Parler from their platform. And this is huge, when they're at the foundational level of the stack. Then you don't have that many comparable platforms to deal with.

Frederick: So conservatives, they need to buck up. They need to make their own. Yes, we've heard that common refrain. Not that easy, given the market share of some of these companies. But they do need to account for the full level, all levels of the technical stack in that regard. Companies are coming up that are trying to solve these problems, like Martin Avila's RightForge, Dave Rubin's on Locals. Certain companies are doing their best. They're not there yet. They haven't reached a point where they can actually compete with these companies. But they're trying,

Doescher: You said in your piece, "It's clear that if unchecked, these companies and their employees will continue to narrow the bounds of acceptable discourse on one side of the political spectrum. Only Americans can and should hit back. It's past time for concrete, actionable solutions." So let's go through some of these solutions. What can the states do?

Frederick: All right. We've got some good proposals in the works. And I say we, I mean state legislatures. There's various draft bills are winding their way through these legislatures. Some have actually gotten out of them and are on their way to being ratified.

Frederick: Florida is a good example. The hero of the day, Ron DeSantis, is again acquitting himself well here in this arena. And I think he's... The idea is to rebalance the relationship between the consumer and the corporation. It allows them to hold these big tech companies to account when they commit violations of free expression, individual freedom. It basically gives some teeth to our ability as consumers to take the power back in a way if they're going to use these platforms.

Frederick: Yes, it is voluntary, but these platforms have insinuated themselves so deeply in public discourse. They are the public square now. There's no denying that. We need to come up with different answers to new questions because make no mistake, these are transformative elements of our society.

Doescher: Should this stay at a state level, or is this something that we should... Every time I say, should the federal government get involved, I'm nervous. But is this something that the federal government can get involved with or should get involved with?

Frederick: At Heritage, we're very wary of the federal government using the wrong tools in a expansive way, I think, agreeably so.

Frederick: I used to work for the federal government for years. They are not very efficient. They don't do things very well. I balk every time somebody says, "Use the government for this, use the government for that." Come on. It's not the best instrument.

Frederick: However, we do think that there are some changes to be made to a smaller degree. And that's following Clarence Thomas, who signaled that Section 230, the 26 words that created the internet, they're no longer untouchable. Maybe they need to be readdressed. We favor some sort of refining, focused reform to pare back that sweeping immunity that's been interpreted by the courts since that rule in the Communications Decency Act was instituted.

Frederick: So we say one of the things, I'll only mention one right here, but technology development always outpaces attempts to govern it. Give it a sunset clause. Make sure that we could readdress it in seven years because technology will have developed so far beyond what we can even imagine today, even if it's just in the social media atmosphere. We're not going to have jet packs or flying cars by then.

Doescher: Correct me if I'm wrong though. It hasn't been updated since 1996, when I was dialing in on AOL through my phone modem.

Frederick: You're dating yourself.

Doescher: Thank you.

Frederick: But exactly. Yes. I think, yeah, we should be able to basically bring them back to what they were originally created for. And that was to not overburden these fledgling companies in the Nineties with innovation-stifling litigation. So let's do that, keep it back. Okay. So there's a small role for the federal government here.

Doescher: Okay. Well, Kara, thank you so much for coming in and explaining this a little bit for us, really drawing lines in the sand here that are actionable. So again, thank you so much.

Frederick: I appreciate it.

Doescher: Thanks so much for joining us for another episode of Heritage Explains. We really appreciate you continuing to download the episode to share it with your friends. Hit that like button or the five-star button, whatever you listen to. Like it, like it, like it. It really means a lot to us. Leave us a comment, if you have something to say. Also, you can send us an email at [email protected]. That's managing [email protected]. And a special announcement: Michelle Cordero—that's right, the co-host of co-hosts—Michelle Cordero is up next week. We can't wait to hear from her then.

Heritage Explains is brought to you by more than half a million members of The Heritage Foundation. It is produced by Michelle Cordero and Tim Doescher, with editing by John Popp.

Show Notes:

Kara Frederick's Daily Signal piece: Steven Crowder Is Suing YouTube Over Vague Rules, but It’s Not Just About Him

Steven Crowder's full announcement of why he's suing Youtube: BANNED: FIGHT LIKE HELL: Why I'm SUING YouTube!