Free Speech

Judge to PragerU: You Do Not Have a Free Speech Claim Against YouTube

Tech bias, real or alleged, does not violate free speech rights.

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Prager University has suffered a setback in its suit against Google.

The conservative outfit took the company to court earlier this year, arguing YouTube—a Google subsidiary—violated PragerU's free speech rights by putting approximately 20 percent of its videos on "restricted" mode and limiting its advertising. But in a tentative ruling submitted before oral arguments on October 25, Santa Clara Superior Court Judge Brian C. Walsh rejected this claim. If those arguments didn't sway him, this ruling will stand.

"Prager contends that 'YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest' and that defendants have opened their platform to the public by advertising its use for this purpose," Walsh writes. "However, Prager does not allege that it has been denied access to the core YouTube service."

Indeed, Prager University, headed by conservative radio host Dennis Prager, has amassed more than 2.36 million followers on YouTube and has produced more than 803 videos, which are hosted on the platform free of charge.

PragerU likely had a better shot of success in California than it would have had elsewhere in the country. The state expanded the scope of free speech rights in Robins v. Pruneyard Shopping Center (1979), which treated a privately held shopping center as a public forum. But even that doesn't apply here, concludes Walsh, since the restricted service filters out mature content for the 1.5 percent of users who specifically choose not to see such material. "Limiting content is the very purpose of this service, and defendants do not give content creators unrestricted access to it or suggest that they will do so," writes Walsh. "The service exists to permit users to avoid the more open experience of the core YouTube service."

YouTube's advertising service, he continues, is similarly "restricted to meet the preferences of advertisers."

Prager's First Amendment claims come amid the nonprofit's repeated assertion that Google is biased against conservative groups. But as Robert Winterton of the trade association NetChoice points out, the tech giant restricts videos by left-leaning organizations too—and often more than Prager's 20 percent. Fifty-four percent of The Daily Show's videos are hidden, as is 71 percent of content from The Young Turks.

Even the History Channel clocks in higher at 24 percent.

It's certainly within the realm of possibility that Google's content moderators are biased to a degree. But even then, is that a reason to bring in the government?

"Prager frivolously argues that the Constitution guarantees his right to post videos on YouTube without restrictions based on the company's (admittedly vague) notions of propriety," writes Reason's Jacob Sullum. "Where does that leave him when people with different priorities frivolously argue that the Constitution guarantees, say, a right to taxpayer-subsidized abortions?"

PragerU also contends that YouTube's actions violate Section 230 of the Communications Decency Act, which protects platforms from facing certain liabilities for posts by third-party users. Much confusion continues to proliferate around the law, as high-profile political figures imply that tech companies cannot claim Section 230's protections if they remove any legal content. But that is patently false: In order to make the internet a more palatable environment, the law specifically allows platforms to scrub content that they deem unsuitable.

"Here, defendants' creation of a 'Restricted Mode' to allow sensitive users to voluntarily choose a more limited experience of the YouTube service is exactly the type of self-regulation that Congress sought to encourage in enacting section 230," says Walsh.

PragerU has filed a separate suit in federal court. It still awaits a decision from the 9th U.S. Circuit Court of Appeals, and it too rests on free speech claims—ones that are even more likely to lose under federal law.

NEXT: In Debate Over Political Speech Online, Facebook Has the Constitution on Its Side

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  1. You can’t monetize fire in a crowded theater. Or something.

    1. All right, which one of you assholes is this?

      1. Chipper is linking to Deadstate. Just a warning before anyone else bothers clicking on that.

        1. Yes, and?

          1. Lol. This from the chunk of cunt mucus who attacks the source and refuses to engage the information provided whenever anyone links to a cite that isn’t WaPo, HuffPo or Vox.

            You should really kill yourself, cytotoxic.

  2. PragerU definitely filed the wrong lawsuit here.

    I’m stunned that no one has filed breach-of-contract lawsuits against YouTube or other Big Tech firms.

    1. Maybe because there is no breach of contract?

      1. If money is changing hands, then I’m guessing that’s going to be a high enough bar for a contract. Money changes hands based on the “Terms of Service”…which is a type of contract.

        Once you’re in the Youtube “Partner” program and your videos are “monetized” that’s a contract.

        1. It’s definitely a contract, but was Prager unaware of the rules about filtering content?

          1. Oh come now. It was a grift. So he could promote his videos and play the victim of big bad Evil Tech.

            1. Isn’t that the point. Google has ultimate control of 90% of the search engines on the internet and with Youtube has an extrordinary control over this media. By allowing Google to decide what we can see and what we can’t we have lost the censorship war. I am astonished that Libertarians are happily running around praising this move. More proof that there are no real Libertarians left and that Reason is a sham run by progressive sponge heads.

              1. Ever hear of private property?

                It is a core, maybe THE core, libertarian value.

                1. The core libertarian principle is the non-aggression principle. The interpretation of the NAP does require a theory of property. However, different theories of property are logically consistent with the NAP and many disagreements between libertarians come down to different theories of property.

              2. By allowing Google to decide what we can see and what we can’t

                You seem to be confusing Google with the state.

              3. there are no real Libertarians left

                Except you – don’t forget you.

    2. Is there something in the contract that would actually prohibit this? Genuinely asking, and too lazy to try to find the ToS.

      1. I don’t know, but I think it’s an interesting legal angle to try, without trying to turn this issue into a First Amendment Issue, which I agree, isn’t.

        Youtube has a partner program. In this partner program, Youtube will share ad revenue with their creators. Youtube has created a platform in which creators now earn a living, and sometimes pay a sizable staff based on the revenues received from said revenue program. Youtube reserves the right to demonetize your videos based a “Terms of Service”. Youtube has demonetized creators’ videos even though Youtube has publicly declared that said creator’s video(s) didn’t violate their terms of service. That seems like grounds for a lawsuit.

        It also seems like Youtube is treading on thin legal ground if they quietly de-list or de-prioritize your videos in searches thus greatly diminishing or eliminating your ad revenue all together.

        Another facet of the argument is Youtuber Law’s angle with an FTC complaint over collusion– that’s a different issue but one that’s equally important.

        1. The main thing that makes YouTube a superior video experience is that it’s really, really good at finding what you want based not on your literal terms, but based on what people who used similar terms ended up watching. Similarly, it digs up “coming up next” videos not strictly based on what you’re looking at, but based on what people like you ended up watching.

          In short, the reason YouTube is so popular is because it’s really, really good at picking the right “winners” and “losers”.

          If this kind of lawsuit were to succeed, then YouTube would no longer be able to pick winners and losers (after all, if you get sued for deciding that someone is a loser, you can’t pick a winner either).

          As such, I have the highest of doubts that there’s anything in the contracts that would allow a lawsuit over their curation algorithms. Once you enter the program, you are entitled to a share of ad revenue. But you are not entitled to favorable search algorithms.

          1. The winners and losers they pick and we are left to accept that. My God what happened to the libertarian mind set? If there was a competitive source to Google and Youtube maybe but there isn’t. So lemmings like the bloggers on this page will be happy with whatever they are fed by big tech. I have no doubt that the majority here support China in its oppression of Hong Kong. No doubt that most here beleive the Constitution is a living document to be altered amended whenever we stumble over something uncomfortable like freedom of speech.

            1. What’s your libertarian solution?

              1. To whine endlessly?

            2. If there was a competitive source to Google and Youtube maybe but there isn’t.

              So go start one, motherfucker. You don’t have a right to a social media platform. That sounds like positive rights language to me. You remind me of people that argue for universal healthcare on the basis of healthcare being a human right.

              1. Hurrrrrrrr just convince all of the people locked to Google with exclusivity contracts to violate their contracts. Durrrrrrrrrrrrrrrrrrrrrrrrrrrrr just go get a billion users without any form of advertising since Google has a monopoly on online advertising and will restrain trade by disallowing you from using their ad network to promote your competing product. Derpa hurrr durrrrrrrrrrrrrrrrrrrrrrrr

            3. The winners and losers they pick and we are left to accept that.

              Of course not.

              You could instead argue for government regulation of a private for-profit industry.

        2. Youtube has demonetized creators’ videos even though Youtube has publicly declared that said creator’s video(s) didn’t violate their terms of service.

          This certainly does seem fishy, though IANAL.

          It also seems like Youtube is treading on thin legal ground if they quietly de-list or de-prioritize your videos in searches thus greatly diminishing or eliminating your ad revenue all together.

          While this is a shitty thing to do, absent a ToS promise not to do this, why would this be thin legal ground?

          1. Most jurisdictions have a default good faith and fair dealing clause applied to contracts. If the action wasn’t to further the end of the contract (maximize revenue) but to screw the other guy there’d be a good case.

            PS. I don’t know what YouTube’s contracts have said over the years, if there’s a choice of law provision, or if that would win either.

      2. Prager tried to claim Google violated the covenant of good faith and fair dealing. The court dealt with that pretty simply: nothing ‘Prager does not and cannot state a claim for breach of the implied covenant of good faith and fair dealing in light of the express provisions of YouTube’s Terms of Service, which
        provide that “YouTube reserves the right to remove Content without prior notice” and which also allow YouTube to “discontinue any aspect of the Service at any time.”’

        and:
        ‘Similarly, YouTube’s AdSense Terms of Service reserve the right “to refuse or limit your access to the Services.”’

        Prager accepted the terms of service, which give all the cards to Youtube to do pretty much anything they want.

      3. YouTube says videos about the 10 Commandments – “ Thou shalt not kill” is violent content.
        But allows other actual violent content from other users.

        Not a 1st Amendment issue – except that Binion hints at that CA courts had already said these types of cases Were 1A cases when preferred defendants brought them

        1. Prager is lying to you. Youtube provides recommended age-restriction content for a variety of reasons, and does not communicate the particular reasons to video owners. Prager has no idea why their 10 commandment video got that classification. And it doesn’t matter for the vast majority of youtube viewers–only people who have expressly opted into their 1-size-fits-all “age restricted” content plan.

          1. Actually, lying cunt slime, YouTube’s restrictions apply universally across the site. You have to opt out, not opt in. A restricted video is also denied placement in search results within the YouTube website.

            As to the reason that the video was restricted, PragerU never made any representation as to why, only speculated on the possible cause since the video contains absolutely no content of a violent nature that would warrant a restriction under YouTube’s guidelines.

            Want to lie some more?

  3. “Here, defendants’ creation of a ‘Restricted Mode’ to allow sensitive users to voluntarily choose a more limited experience of the YouTube service is exactly the type of self-regulation that Congress sought to encourage in enacting section 230,” says Walsh.

    I like how YouTube puts the whole country on Restricted mode when they don’t like a political candidate. *cough*Tulsi*cough*

    1. People keep talking about some Yang person that is running. Supposedly he is Asian and is good at math, but that sounds racist to me.

      Why don’t we just drop 230 already? Everything it is providing isn’t needed aside from 3rd party sales from what I gather. If we grow to rely on a single source for info why in the world would it go the way we want it to? Why do we expect things we like to happen?

      Everyone should just get their own websites and eventually Youtube will get desperate and devolve into vids of Will Smith sitting naked on mouse traps until his contract ends.

      1. Why don’t we just drop 230 already?

        i suspect this would make platforms far more restrictive.

      2. Why don’t we just drop 230 already?

        Dropping 230 would mean only those with big pockets to afford large legal departments would be capable of hosting online forums.

        1. So, exactly like it is right now.

  4. >>to allow sensitive users to voluntarily choose a more limited experience

    define sensitive. also i choose a more limited experience by only using youtube to look up Simpsons clips to post here

    1. Don’t forget the cat videos.

      1. nobody forgets a cat video.

      2. Orange tabbies hardest hit.

  5. What can the courts do with a private platform whose owners have been hectored and threatened by government officials for permitting First Amendment-protected content, if these platforms then start implementing restrictive policies which suspiciously mirror the concerns expressed by the government officials threatening them?

    It’s a “private company making private decisions” – the private decision to avoid trouble with the government.

    1. I’ve been asking this question for a couple of years no. I don’t see an explicit first amendment angle here, but I do see something that should be raising alarm bells. When Zuckerberg’s Terms of Service is curiously changed after a summit meeting with Angela Merkel…

    2. Even if the courts were inclined to do anything about that situation, it sounds like it would need to be the platform suing the government.

      A third party suing the platform won’t debate that point, and a third party suing the federal government over the coercion is unlikely to have standing to get past step 1.

      1. And I suspect that suing the government over the vague threats of Congresspeople will not work very well.

    3. Libertarians are totally cool with fascism now. That’s what it is when the government exercises its control under the auspices of technocratic management of ”””””private””””” industry.

  6. I don’t see any real long term solution to this besides some sort of decentralized or federated social media network. I don’t know if any that exist will be up to the challenge, but I am decently confident that it will be done if this continues.

    1. How about whiny snowflakes stop asking for imaginary perfect worlds–and all the equally asinine enablers stop pretending they can have them?

      So, never.

      1. I mean, yeah, that would be great. But assuming that’s not gonna happen, I see it as more practical to build our own systems.

      2. Basically. Conservatives (who are the “whiny snowflakes asking for imaginary perfect worlds” in this case) have had basically no luck in setting up “conservative” alternatives to YouTube or FaceBook. Conservapedia (“conservative” wikipedia) is still around, but even conservatives don’t use it.

        But conservatives are much better at whining that liberals aren’t making them fancy toys then they are at making fancy toys themselves.

        1. Conservatives (who are the “whiny snowflakes asking for imaginary perfect worlds” in this case) have had basically no luck in setting up “conservative” alternatives to YouTube or FaceBook.

          Because no one will host their websites, register their domain names, let them access their advertising networks, or obtain banking services. Do you know what that’s called? Restraint of trade. When Standard Oil controlled 60% of their market they were broken up by anti-trust regulators at the insistence of progressives like you. Google has a 90% market share in web advertising and Facebook has 80% of the remaining 10%. But then no one expects ideological consistency from SJW fascists.

    2. The problem I see with that is due to the lack of moderation it will become a place to buy crack and humans and therefore using it will be made against the law. The lobbyists will make it happen due to the massive amount of piracy it will contain and that will be the real reason, but it will be blamed on the dude selling humans.
      If all users are hosting the data or even parts of it a simple tweak to a law can render it illegal.
      Plus, since it isn’t able to be monetized it really won’t take off because there won’t be millions spent around making it addictive. I’ve heard that Gab and Minds are boring as shit and even if you decentralize that it still won’t grab peoples’ attention.

      1. Well, federated social media groups can certainly moderate (such as removing illegal content).

        As for making it addictive, that could be a good point. Not sure.

    3. The idea I have heard bandied around is to create portable user profiles. Imagine that you sign in on a platform with a profile that can understand your social network connections independent of any particular platform. That way platforms would compete based on the user experience in using their platform and not try to keep you locked in to a platform based on the network that you have created on that platform that can’t be ported to other platforms.

  7. I hate linking to this abomination of a website (it’s ok when you have all the adblock, etc. running), but…

    https://thefreethoughtproject.com/police-excessive-force-brutality-justified/

    Oklahoma police have asked a federal court to support their claim that citizens who comply with police during an arrest do not have a clearly established right to be free from police brutality.

    The police have no duty to protect you.
    You have a duty to pay them.
    You have a duty to follow their orders, lawful or not.
    If you do not, the police have the power to kill you and they have immunity from prosecution and litigation.
    If you do, the police have the power to kill you they have immunity from prosecution and litigation.

  8. Could you say that Dennis Prager didn’t build that or would that offend him in a way in which we’ll have to listen to him bitch for the next decade or so when Obama last used the term? Hmmm… sometimes it’s better to lose the battle in an effort to not hear some conservative blowhard incessantly bitch to win the war.

    1. Could you say that Dennis Prager didn’t build that or would that offend him in a way in which we’ll have to listen to him bitch for the next decade or so when Obama last used the term?

      You really haven’t the foggiest idea what that phrase referred to or why it rubbed people the wrong way, do you?

      1. This whole thing has been a massive benefit to Prager U and having a lawsuit like this is cheaper than paying for the amount of advertisement he’s been given. Throw in that he’s “fighting the unjust youtube on censorship issues” and people instantly take sides and now Prager U has more supporters than ever.

        He’s a pretty smart dude.

        1. Yup – it’s a big grift.
          Which is what most of the BIG TECH IS OPPRESSING ME crap is from either the right or the left.
          Just an excuse to play the victim.

          1. Haha yeah those whiny Jews in 1938 pulled the same scam so they could steal themselves a land from the Palestinians too, amirite?

  9. YouTube ain’t the government, and is not governed by the First Amendment. The fact that it and other social media sites are the de facto public square does not make them, in fact, the public square.

  10. I’b be interested in what YouTube is restricting. Everthing I have ever watched on Prager is mild.

    1. That’s because YouTube wouldn’t let you see their all-nude episode.

  11. Doesn’t seem like it would be that difficult to create a website that allows users to upload video content.

    1. Oh, it isn’t. It’s also incredibly expensive and if people don’t like what they see they attack the advertisers. Youtube knows how easy, and expensive it is because they operate at a massive loss thus completely cornering the market.

  12. Thanks for the post click

  13. “Prager contends that ‘YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest’ and that defendants have opened their platform to the public by advertising its use for this purpose”

    AM Radio and Fox, the Bernie Madoff of media, News are also the equivalent of a town square – so I look forward to be given full access to those town squares.

  14. Asking for the xth time, why do you only focus on the restricted mode aspects of the suit and not the demonetization claims.

    And now, something you’ll almost never see: a good Vox article on this subject.

    https://www.vox.com/culture/2019/10/10/20893258/youtube-lgbtq-censorship-demonetization-nerd-city-algorithm-report

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