Lawyers for Prager University, a nonprofit headed by radio host Dennis Prager that produces conservative videos, appeared before the 9th U.S. Circuit Court of Appeals on Tuesday to argue that Google violated the company's right to free speech by restricting a portion of its content on YouTube. PragerU's argument reflects a fundamental misunderstanding of the protections provided by the First Amendment and an effort to expand those protections beyond their original scope.
YouTube, a Google subsidiary, has restricted approximately 20 percent of the nonprofit's videos, meaning that those clips cannot be viewed by the 1.5 percent of users who opt not to see adult material. The tagged videos include "Are 1 in 5 Women Raped at College?" and "Why Isn't Communism as Hated as Nazism?"
PragerU's suit says that YouTube is essentially a "public forum" that should be subject to government intervention. In court, Peter Obstler, head counsel for PragerU, said that YouTube is "not just the company town. They're arguably a company country and maybe a company world force."
In response, Judge Jay Bybee appeared to be skeptical. "If your representations are correct, it seems deeply disturbing that they put your stuff in the restricted area," he said. "I'm not sure that creates a First Amendment issue."
Attorneys for Google countered that a win for PragerU would have deleterious effects on the internet. For one, companies would lose their right to remove pornography and abusive content, which Section 230 of the Communications Decency Act expressly allows them to scrub as they see fit. But they see a more frightening consequence as well: platforms such as their own would have the incentive to abandon current claims of political neutrality to avoid similar lawsuits, and would thus be likely to censor more content—not less.
"Google's products are not politically biased. We go to extraordinary lengths to build our products and enforce our policies in such a way that political leanings are not taken into account," Ivy Choi, a YouTube spokesperson, tells Reason. "Our platforms have always been about sharing information everywhere and giving many different people a voice, including PragerU, who has over 2 million subscribers on their YouTube channel."
That likely won't convince Dennis Prager. "I promise you, one day you will say, first they came after conservatives, and I said nothing," he opined in a July Senate hearing on tech censorship, summoning Martin Niemöller's post-Holocaust poem. "And then they came after me—and there was no one left to speak up for me." The Republican firebrand joins a growing list of right-wing figures and lawmakers who accuse social media platforms of anti-conservative bias and want those sites regulated as the new public square—one that requires a "sheriff," according to Sen. Marsha Blackburn (R–Tenn.).
But that line of thinking "flies in the face" of nearly every First Amendment precedent, which is that it curtails the power of the government, not private actors, says Jane Bambauer, a Professor of Law at the University of Arizona. Companies, "no matter how powerful we think they are," are thus excluded from that particular type of government meddling—an ideal that was a core part of Prager's conservative ideology, until recently.
The nonprofit's First Amendment claims are "surefire losers," Bambauer tells Reason.
PragerU has continuously demonstrated that it misunderstands such matters: In July, for instance, the nonprofit tweeted that Google revealed its anti-conservative bias because some of the predicted search results for PragerU were negative. In reality, though, Google's automated function considers trending topics and churns out suggestions accordingly. When I did the same search, the results were far more positive:
.@prageru thinks that unflattering google search suggestions prove that the company is biased against them. Except I tried the same search in incognito mode and got much more favorable results. Don't believe the hype. https://t.co/oABf5xkyJG pic.twitter.com/5cDWDxTzxb
— Billy Binion (@billybinion) July 29, 2019
Although PragerU's First Amendment claims will almost certainly fall flat in court, the company may have a fighting chance of surviving Google's motion to dismiss by citing the Lanham Act, which prohibits false advertising. "If Google is making affirmative statements about being ideologically neutral," says Bambauer, those statements "may be challenged as being false, or at least of being misleading."
Google's declarations don't necessarily have to be all that explicit, explains Bambauer, who notes that a Lanham Act claim might survive since Google generally claims to provide a mostly unmediated idea of what people are talking about. Even still, "it's pretty unlikely to win," she says.
That implausibility is at least partially wrapped up in the fact that Google has not been restricting PragerU's content on ideological grounds—at least not on its face. Somewhat ironically, lawyers for the conservative nonprofit are also representing a pair of LGBT "kink educators" who allege First Amendment censorship, as their content has also been demonetized and age-restricted. In general, the tech giant flags far more content from liberal groups, such as HuffPost, Vox, Buzzfeed, NowThis, and The Daily Show. The Young Turks, a far-left channel, has 71 percent of its content restricted.
As Sen. Cruz brings up Prager, take a look at our one-pager: pic.twitter.com/hqgR41yGi6
— Robert Winterton (@RobPWJ) July 16, 2019
The far-fetched lawsuit ratchets up the tech bias debate, which came to more mainstream attention this summer with President Donald Trump's White House "social media summit." Many right-leaning figures and incendiary online characters joined the president to discuss allegations of anti-conservative sentiment on tech platforms, culminating in an executive order draft which, in its current form, would reportedly punish companies that cannot sufficiently prove their political neutrality.