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PragerU Sues Google and YouTube, Claims Unlawful Censorship and Discrimination

PragerU Sues Google and YouTube, Claims Unlawful Censorship and Discrimination

“This is speech discrimination plain and simple, censorship based entirely on unspecified ideological objection to the message or on the perceived identity and political viewpoint of the speaker”

https://www.youtube.com/watch?v=pnE5Isk4GlU

PragerU, an online purveyor of educational videos run by its namesake, Dennis Prager, filed a complaint against Google and YouTube Monday. The complaint alleges unlawful censorship and discrimination of first amendment rights.

YouTube, which is a subsidiary of Google, has on numerous occasions censored PragerU videos. Often, restricted or demonetized videos aren’t even what most would consider controversial subject matter, but offers opinions from a conservative point of view. “Why America Must Lead,” “The Ten Commandments: Do Not Murder,” “Why Did America Fight the Korean War,” and “The World’s Most Persecuted Minority: Christians” have all been dinged by YouTube.

Just weeks ago, former Dirty Jobs host turned skilled worker spokesman was shocked to find a video he’d done in conjunction with PragerU had received the YouTube ban hammer. The video? “Don’t Follow Your Passion“.

“Is it possible that YouTube has determined that the IDEAS expressed in my speech are inappropriate for people under 18 – The precise audience that most needs to hear this message? The answer appears to be yes,” Rowe wrote on his public Facebook page.

Dennis Prager agrees:

“Watch any one of our videos and you’ll immediately realize that Google/YouTube censorship is entirely ideologically driven. For the record, our videos are presented by some of the finest minds in the Western world, including four Pulitzer Prize winners, former prime ministers, and professors from the most prestigious universities in America.

They are engaging in an arbitrary and capricious use of their ‘restricted mode’ and ‘demonetization’ to restrict non-left political thought. Their censorship is profoundly damaging because Google and YouTube own and control the largest forum for public participation in video-based speech in not only California, but the United States, and the world.”

“Google and YouTube use restricted mode filtering not to protect younger or sensitive viewers from ‘inappropriate’ video content, but as a political gag mechanism to silence PragerU. Google and YouTube do this not because they have identified video content that violates their guidelines or is otherwise inappropriate for younger viewers, but because PragerU is a conservative nonprofit organization that is associated with and espouses the views of leading conservative speakers and scholars,” said Eric George of Browne George Ross, the firm representing PragerU.

PragerU will have to successfully establish Google and YouTube function as public forums for a court to treat them as a public entity in violation of the first amendment, which is what PragerU argues in the complaint. But in an age where everything conservative is maligned or actively censored from privately owned, but public internet real estate, I’m glad PragerU is fighting back, regardless of the outcome.

Full complaint here:

Prager U v. Google, YouTube Complaint by Legal Insurrection on Scribd

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Comments

Google and YouTube are being deceptive, and discriminatory, and acting in bad faith, but how is this a First Amendment issue? (I’m not a lawyer, BTW.)

Text of 1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    sidebar in reply to moonmoth. | October 24, 2017 at 4:58 pm

    The Plaintiff alleges that Google and Youtube full under the Penumbra of the First Amendment because they operate “public spaces”

    fscarn in reply to moonmoth. | October 24, 2017 at 7:16 pm

    Eat at Ollies Barbeque and think of public accommodations.

    The basis of the suit would rely on Katzenbach v. McClung, 379 U.S. 294 (1964).

      Milhouse in reply to fscarn. | October 25, 2017 at 2:33 am

      Bulldust. Katzenbach is irrelevant, because there is no federal law against discrimination on the grounds of political or ideological opinion. It is perfectly legal to refuse to deal with someone because you don’t like their opinions, just as it’s legal to do so on any grounds except those Congress has forbidden.

      In any case, moonmoth’s question was “how is this a First Amendment issue?”. Even if there were a law against such discrimination, how would that answer the questions? Katzenbach had nothing to do with the first amendment.

      No, the first amendment complaint is bogus, and discredits Prager. The moment he cites the first amendment in order to seize private property he has lost the moral argument.

      Now if he’d filed in a California court it would be different. CA does have a law against political discrimination, and CA courts have a weird and very wrong view of the first amendment.

        UnCivilServant in reply to Milhouse. | October 25, 2017 at 7:13 am

        Even if there were such laws on the books, I would end up arguing the laws should be struck down. Katzenbach was wrongly decided, as public accommidation laws violate freedom of association guarantees from the First Amendment. Much like speech, there is no need to protect the popular choice of association. Those who choose not to do business with whomever for whatever reason should be permitted to do so, and do so openly so the public can make an informed choice about whether to associate or disassociate with them as they too see fit. Bringing the parallel back to another controversy, Protecting the Christian Bakers’ rights to disassociate requires protecting the racists’ rights as well.

          Regardless of what the law ought to be, we deal with it as it is, and public accommodations currently have the right to turn down customers for any reason they like except those specified by law. Which in most places includes sexual orientation but not political orientation. Under federal law it doesn’t even include sexual orientation.

I love Prager, and his stuff. I think it should be available to everyone. I disagree with him sometimes, as I do with anyone.

I think this will fail, and for the good reason that YouTube is NOT a public domain. It is, was, and will be in the future a private enterprise. I don’t want to see it made by court fiat a “utility”.

    Not trying to be a PITA, I am not a lawyer.

    What was the argument for breaking up the phone company? Any relevance?

    Thanks.

      Ragspierre in reply to DCP. | October 24, 2017 at 5:07 pm

      A good, reasonable question.

      AT&T was a monopoly, and it behaved as one. Research how a monopoly acts, and how it exists.

      The ONLY way a monopoly can exist long term (i.e., in the face of a market, with market forces at play) is via government protection.

      YouTube is not a monopoly in any real sense. It ALSO enjoys no government protection. You or I can enter the same market it serves tomorrow. It certainly has advantages over new competitors…mostly in its market-share…but those are not monopoly traits.

      An example would be Microsoft’s Office suite. Tough to beat in the market, but without any monopoly traits.

        Interesting. A few additional questions if you will humor me.

        Monopoly – noun, plural monopolies.
        1. exclusive control of a commodity or service in a particular market, or a control that makes possible the manipulation of prices.
        Compare duopoly, oligopoly.
        2. an exclusive privilege to carry on a business, traffic, or service, granted by a government.
        3. the exclusive possession or control of something.
        4. something that is the subject of such control, as a commodity or service.
        5. a company or group that has such control.
        6. the market condition that exists when there is only one seller.
        7. (initial capital letter) a board game in which a player attempts to gain a monopoly of real estate by advancing around the board and purchasing property, acquiring capital by collecting rent from other players whose pieces land on that property.

        Note that only one these definitions have anything to do with Government. Is the legal definition different?

        I grew up in N. FL, and I am old enough to remember when every little town in N. Fl, S. AL, and S. GA had its own little phone company. At&T absorbed them all, but I don’t think that the government helped them do it. At least not in the beginning.

        I understand that anyone can create a competing business and go for it.

        But putting that aside. I seem to remember routine stories in the news about a particular company trying to buy, or merge with, another company and that deal being questioned/delayed/prohibited because it would create an entity that enjoyed too much of a market share. In other words, these activities are restricted because of anti-monopoly considerations. What market share is the limiting number?

        How close are Youtube, Google, even Amazon, to that percentage of market share that would potentially trigger a realistic discussion of whether they should be broken up due to anti-monopoly requirements?

        What other considerations affect this question?

        Thanks.

          Ragspierre in reply to DCP. | October 24, 2017 at 8:16 pm

          Read Dr. Thomas Sowell’s excellent “Basic Economics”.

          You can very easily veer off into confusing crap like “anti-competitive” law and theory. Try to stay focused on your original question.

          I don’t have…and don’t even think about…the answers to very finite questions. I’ll let the courts decide this issue, and let my opinion stand.

          notamemberofanyorganizedpolicital in reply to DCP. | October 24, 2017 at 10:05 pm

          DCP, don’t forget “shared monopoly.”

          Milhouse in reply to DCP. | October 25, 2017 at 3:06 am

          The basic thing you have to bear in mind is that the Antitrust laws were not based on rational economic knowledge, but on envy and hatred, bigotry and ignorance. Populist politicians decided for their own purposes to demonize John Rockefeller, and made up a slew of slanders against him, to justify effectively confiscating his business empire.

          Monopolies are almost impossible without government enforcement, and on the rare occasion that they do happen they’re none of anyone’s business. If someone is somehow able to create and sustain an entirely private monopoly, that is his right. But in any case it’s practically impossible.

          More generally, you will hear frequent claims that government must intervene to prevent “market failure”. This argument ignores a far more common phenomenon: government failure. An unregulated economy will once in a long while produce a case of market failure; but an economy that allows regulation to prevent this is almost guaranteed to experience many cases of government failure for every case of market failure that it prevents.

        “It ALSO enjoys no government protection.”

        False. It has claimed protection from libel based on allowed content as a “common carrier” under Section 230 of the CDA. So has Google.

          Milhouse in reply to SDN. | October 25, 2017 at 10:47 am

          Irrelevant. That protection is available to every site on the ‘net, and gives Google no advantage.

      tom_swift in reply to DCP. | October 24, 2017 at 5:14 pm

      YouTube isn’t a monopoly. There’s nothing about YouTube which prevents, say, Denis Praeger from setting up DennisTube.com, where he can put whatever videos he pleases, subject only to copyright restrictions and obscenity laws.

    Agreed. YouTube is a private corporation, hence has the right to regulate what is published on its site.

    This is just Fair Use turned on its head. Don’t legislate them, Rush them, as in Rush Limbaugh. He didn’t whine about fair use, but rather built a show people wanted to hear. The audience followed.

      Vancomycin in reply to Casey. | October 25, 2017 at 8:00 am

      ” He didn’t whine about fair use, but rather built a show people wanted to hear. ”

      The problem with this, in this particular case, is that, while there are multiple video platforms out there, the one watched by the vast majority of people (and no, I have no numbers off the top of my head) is youtube.

      Without looking it up, name a comparable service. I can think of two, maybe. But I’m a tech geek and tend to follow these things. The average person isn’t going to know anything BUT youtube.

      You can’t build an audience unless you can get your videos in front of people. Which he can’t because youtube and google are censoring him.

    Matt_SE in reply to Ragspierre. | October 25, 2017 at 12:01 am

    So apparently you have no problem with private monopolies or a “company town” ethos.

I can see that there might be a case if they violate their own stated standards – which seems likely – but calling it a First Amendment issue seems misguided.

Is he just grandstanding for attention?

California has a much broader freedom of speech under its state constitution. For example, shopping malls are considered public forums for free speech purposes. see Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

    Milhouse in reply to chaswjd. | October 25, 2017 at 3:08 am

    Yes, and if they’d filed in state court I’d still object because the CA law is wrong, and it’s immoral to take advantage of it, but I’d have no legal objection.

My non-lawyery take on this:

Prager has multiple reasons for filing this suit.
1) It’s a ‘brush-back’ pitch. YouTube *claims* to be neutral, and every minute they spend trying to claim that a conservative university with informative content is somehow worse than the skinheads and leftist blood-rage that they have been permitting, digs them a deeper hole.

2) It gets Prager attention in a positive fashion, establishes them as pro free speech, and ultimately winds up profiting the organization.

3) It gives the frothing leftists a bad case of cognitive dissonance since *they* seem to think that only their speech is special and deserving of protection.

A win/win for PU. Google will have it’s best shot at getting this thrown out. Google will not do well at a trial, because to prove their case, they will open themselves up to criticism and discovery.

So they’ll likely succeed in getting this thrown out before anything is heard, and PU and Dennis, can harp on how big Google crushed his complaint. Baby steps. Also, stuff like this begs for regulation. Google, by it’s size, begs for regulation. They control too much.

There is a consolation prize here too. Google is a big net neutrality promoter, which is just a disguise for subsidies net pipes for them. Not that I am a Comcast fan, I am not. But they have. Even less of a censorship risk than the Googlefacebooktwit crowd.

This exposes their hypocrisy on net neutrality and weakens their position on this front. Bad press undermines their initiatives and lobbying power and grows people distrust.

Ruin the brand, destroy trust in the content and feed algorithms, and you set the stage for competition and pushback.

Without that steady drumbeat they keep rolling and keep lobbying unchecked.

Baby steps, but we need them.

Good for PragerU. Time to go help them monetize a couple videos that still are ok and help out their suit.

These blatant “demonetization” schemes and other transparent moves by the big Internet companies to squelch conservative speech have me scratching my head and wondering if they’re not actually baiting conservatives into supporting more regulation of the Internet, including “net neutrality.”

They’d benefit doubly from government regulation because a) they have firmly entrenched positions of power and lobbying muscle they could use to smash competitors, and b) they know the administrative state will be progressive and support their viewpoints in the long run.

Watch what you wish for if you’re running to the government for help. The law of unintended consequences will ALWAYS rear it’s ugly head when you give the government more power.

Rags – there is no Reply button on your last comment above, so I will respond here.

Um . . . . Okay. Actually it was specifically the “anti-competitive” law and theory crap that was the point of my original question. I thought AT&T was broken up BECAUSE it was an anti-competitive monopoly.

But, I do appreciate you taking the time to respond.

Thanks, again.

    Ragspierre in reply to DCP. | October 24, 2017 at 9:23 pm

    A business or businesses can enter into the area of “anti-competition” and never be anything like a monopoly. Conversely, the law allows various “anti-competition” agreements that are limited (as in a clause in a commercial lease that prohibits a competing business on the landlord’s property, or a provision in a business sales contract that prohibits a seller from opening a competing business within a certain radius and for a certain time, etc.).

    We won’t EVEN get into the realm of “protected monopoly” we most all approve in the form of patents, copyright, and trademark.

    I know of no “anti-competition” stuff WRT YouTube. They just are really strong in the market, and that’s not considered a “bad” thing sufficient to warrant regulation or court action, IMNHO. In fact, what it suggests to me is that there is a ripe field, ready to exploit!

    (This suggests SEVERAL of the reasons actual monopolies cannot exist for long in a market economy. They get fat, stupid, and they’re making enough [economists call it ‘pure profit’] to call competitors into their market like Duck Dynasty on an autumn morning in the marshes!)

      Milhouse in reply to Ragspierre. | October 25, 2017 at 3:10 am

      One of the causes of action listed is an alleged violation of the Lanham Act, based on the defendants’ use of trademark protection.

Yes, I am familiar with these concepts, obviously not as familiar as you are.

My point is that sometimes a company gets to the point where
1. It will not be allowed to get any bigger
or
2. It will be broken up

And from all of the above, there doesn’t appear to be any way to know in advance what that point is.

I raised this question because I have seen a number of articles speculating that this will be the next phase in the Culture War. It seems that there are a number of people who may be willing to write checks to begin making this argument in the court system. Interesting times.

    Milhouse in reply to DCP. | October 25, 2017 at 3:19 am

    And from all of the above, there doesn’t appear to be any way to know in advance what that point is.

    Which is precisely why the antitrust law is inherently fascist, and ought to have been struck down long ago as unconstitutionally vague.

    See the horrifying case of the Alcoa antitrust case in the 1940s, in which the United States behaved just like the Soviet Union or the Third Reich, throwing executives in prison who had literally done nothing wrong, just because it wanted to. There was absolutely no way for these victims to have predicted in advance that what they were doing would be retroactively labeled a crime and would land them in prison. There was nothing they could have done to avoid this fate. It’s high time the US apologized to their children and grandchildren and compensated their estates.

If a flower shop can be forced to provide flowers for a gay wedding, then it seems that YouTube could be forced to post videos giving viewpoints they dislike as well. Prager U is a Google customer, not an employee, so Google can’t just fire him like they do with an employee who does not accept the company’s “hive mentality.”

    Milhouse in reply to OldProf2. | October 25, 2017 at 3:24 am

    There is no federal law against discrimination on the basis of sexual orientation, and no flower shop has ever been compelled, by any US court or authority, to provide flowers for a same-sex wedding. There are such state or local laws in many places, and florists operating in those locations have so been compelled under those laws. There are very few places where it is illegal to discriminate on the basis of belief or opinion. California happens to be one of those places, so if this were happening in state court your argument would be correct. But for some reason the plaintiffs chose to file in federal court, and that invalidates your analogy.

I don’t like the idea of “public accommodation” laws that force business owners to serve those they wish not to, but until we can dissemble such laws, we need to use them. YouTube, facebook, and all the rest of social media have become so widespread that they should not have the power to discriminate against political discourse.

    Milhouse in reply to stl. | October 25, 2017 at 3:26 am

    Public accommodation laws do not require businesses to serve all comers. It is perfectly legal to refuse customers on any basis except those specifically listed by law. There are very few places (though CA is one of them) where it’s not lawful to refuse customers because you disagree with their politics.

      heyjoojoo in reply to Milhouse. | October 25, 2017 at 3:33 pm

      “except those specified by law..” which should include political affiliation. Because as it stands, you’re saying that one can discriminate against you legally as long as it’s because one is a conservative.

        Milhouse in reply to heyjoojoo. | October 26, 2017 at 3:32 am

        Why should it include political affiliation, any more than dress, looks, taste in music, hairstyle, or anything else? The basic rule is that a person is entitled to choose with whom he will do business. Federal, state, and local legislators may make exceptions to that rule, but anything they haven’t excepted remains lawful. How else should it be?

        Because as it stands, you’re saying that one can discriminate against you legally as long as it’s because one is a conservative.

        Or socialist. Would you knowingly hire a communist or a nazi? I wouldn’t, and I wouldn’t want the law to force me to do so. Anti-discrimination laws are too intrusive already; let’s not add to them.

    Albigensian in reply to stl. | October 26, 2017 at 10:39 am

    The origin of “public accommodation” laws lies in Jim Crow.

    The justification for declaring that a locally owned-and-operated motel or restaurant was engaged in interstate commerce (and thus subject to federal regulation) was that racial discrimination was so pervasive that the lack of public accommodations for African-Americans impaired their ability to travel and to engage in business.

    I think a pretty good argument can be made that that was the case. The problem with such legal reasoning is, what does one do with such precedents when the justification for them no longer exists?

    If a motel or restaurant were to refuse service to persons based on their race, national origin, etc., the likely result today is that the public would put the business at such a disadvantage that it would fail. But even if it didn’t, would a few rare exceptions impair anyone’s ability to travel or engage in interstate commerce? If not, where is the constitutional basis for federal regulation of such businesses?

File this one under even bad publicity is good publicity. No chance at winning, but if it makes some people more aware to bias by these giants, it is still a win.

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