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Federal Court: YouTube restrictions on PragerU videos do not violate 1st Amendment

Federal Court: YouTube restrictions on PragerU videos do not violate 1st Amendment

Court “declines to find that Defendants in the instant case are state actors”

https://www.youtube.com/watch?v=ytdMUddGe-U

In October 2017 we reported on a lawsuit filed by Prager University against Google and YouTube [Complaint] based on restrictions YouTube division had put on PragerU videos:

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….

“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.

I have long argued that the censoring or restricting of content by internet oligopolies poses a greater current threat than government action because these private oligopolies, which control so much of our communications, are not covered by the 1st Amendment.

In a ruling earlier this week, a federal court held that the 1st Amendment did not apply and dismissed PragerU’s federal claims. As a result of dismissing the federal claims, the court held that there was no basis to continue to exercise jurisdiction over state-law claims. Those state law claims could be brought in state court.

The full court opinion (pdf.) is embedded at the bottom of this post.

The Court summarized the basis of the motion to dismiss and ruling as follows:

In their motion to dismiss, Defendants argue that Plaintiff’s complaint should be dismissed because (1) the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), bars all of Plaintiff’s causes of action except Plaintiff’s First Amendment claim, Mot. at 8–13; (2) the First Amendment bars all of Plaintiff’s causes of action, id. at 13–15; and (3) Plaintiff’s complaint fails to sufficiently plead any causes of action. Id. at 15–24. The Court finds that Plaintiff’s complaint should be dismissed for failure to state any federal claims, and therefore declines to address Defendants’ other arguments for dismissal.

The Court held that there was no 1st Amendment claim because PragerU had not pleaded sufficient facts to show that Google/YouTube were “state actors”:

“It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.” Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976). Plaintiff does not dispute that Defendants are private entities. See Compl. ¶¶ 18–19; ECF No. 25 at 14 (conceding that “Defendants are not public entities”). However, in some circumstances, a private entity can be a state actor for constitutional purposes. Specifically, “‘[t]he Supreme Court has articulated four tests for determining whether a private party’s actions Plaintiff contends that Defendants are state actors under the “public function” test. See Compl. ¶ 87 (stating that “Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function”). Under the public function test, “[p]rivate activity becomes a ‘public function’ only if that action has been ‘traditionally the exclusive prerogative of the State.’”….

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a “video-sharing website” and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. Instead, Plaintiff emphasizes that Defendants hold YouTube out “as a public forum dedicated to freedom of expression to all” and argues that “a private property owner who operates its property as a public forum for speech is subject to judicial scrutiny under the First Amendment.” Opp. at 18….

In sum, Plaintiff has not shown that Defendants have engaged in one of the “very few” public functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. Defendants do not appear to be at all like, for example, a private corporation that governs and operates all municipal functions for an entire town, see Marsh, 326 U.S. at 507–09, or one that has been given control over a previously public sidewalk or park, see Evans v. Newton, 382 U.S. 296 (1966), or one that has effectively been delegated the task of holding and administering public elections, see Smith v. Allwright, 321 U.S. 649, 664 (1944). Instead, Defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website. Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors….

The Court likewise declines to find that Defendants in the instant case are state actors that must regulate the content on their privately created website in accordance with the strictures of the First Amendment. As a result, the Court concludes that Plaintiff has failed to state a claim against Defendants under the First Amendment.

While dismissing the 1st Amendment claim, the court granted PragerU leave to try again: “The Court affords leave to amend because Plaintiff may be able to allege sufficient facts to support a First Amendment claim.” It’s hard to see what additional facts could be pleaded that would salvage the 1st Amendment claim.

As to the Lanham Act claim, the court rules:

Plaintiff also asserts a cause of action against Defendants for false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). Section 1125(a)(1)(B) forbids a person from making any false or misleading statements of fact “in commercial advertising or promotion” that “misrepresent[] the nature, characteristics, qualities or geographic origin of his or her or another person’s goods, services, or commercial activities.”…

Although the section of Plaintiff’s complaint dedicated to the Lanham Act does not identify any specific representations made by Defendants, see Compl. ¶¶ 115–19, Plaintiff’s opposition to Defendants’ motion to dismiss points to a handful of discrete alleged instances of false advertising by Defendants. Opp. at 24. In particular, Plaintiff identifies (1) YouTube’s suggestion that some of Plaintiff’s videos are “inappropriate”; (2) YouTube’s policies and guidelines for regulating video content; (3) YouTube’s statement that “voices matter” and that YouTube is “committed to fostering a community where everyone’s voice can be heard”; (4) YouTube’s statement on its “Official Blog” that YouTube’s “mission” is to “give people a voice” in a “place to express yourself” and in a “community where everyone’s voice can be heard,” and that YouTube is “one of the largest and most diverse collections of self-expression in history” that gives “people opportunities to share their voice and talent no matter where they are from or what their age or point of view”; and (5) Defendants’ representations in the terms of the agreements between Plaintiff and Defendants that Defendants seek to “help you grow,” “discover what works best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos.” Id. (citing Compl. ¶¶ 3, 11, 14, 28, 104, 112). The Court agrees with Defendants that Plaintiff has failed to allege sufficient facts to support a Lanham Act false advertising claim based on any of these representations.

The court also granted leave to amend on the Lanham Act claim.

As to the state claims, the court declined to exercise jurisdiction in the absence of federal claims:

Plaintiff’s remaining claims are based on state law. Specifically, Plaintiff asserts four substantive state law causes of action for: (1) violation of Article I, section 2 of the California Constitution; (2) violation of the Unruh Act; (3) violation of the UCL; and (4) breach of the implied covenant of good faith and fair dealing. Further, Plaintiff’s claim for declaratory relief is based in part on Defendants’ alleged violations of Article I, section 2 of the California Constitution and the Unruh Act…..

Here, the factors of economy, convenience, fairness, and comity support dismissal of Plaintiff’s remaining state law claims. This case is still at the pleading stage, and no discovery has taken place. Federal judicial resources are conserved by dismissing the state law theories of relief at this stage. Further, the Court finds that dismissal promotes comity as it enables California courts to interpret questions of state law. This is an especially important consideration in the instant case because Plaintiff asserts a claim that demands an analysis of the reach of Article I, section 2 of the California Constitution in the age of social media and the Internet.

If an amended pleading were to somehow reinstate the federal claims, then the court would revisit keeping the state claims.

PragerU issued this press statement, which seems to suggest both an appeal and a filing in state court:

CEO of PragerU, Marissa Streit, issues the following statement in reaction to today’s Federal Court ruling in Prager University v. Google/YouTube:

“Today, a Federal Court ruling was issued regarding our lawsuit brought against Google Inc. and its subsidiary YouTube, LLC. Already, some headlines in the media would have you believe we have lost our case outright. Quite the contrary, this is only the first step in the process and we join our legal team in its optimism for the future prospects of our lawsuit. We thank the Honorable Judge Koh for her thoughtful ruling, which allows PragerU, in essence, to continue our efforts. Far from an unexpected setback, we look forward to arguing the merits of our case in both state and Federal Court, as well as the 9th Circuit, or even the Supreme Court if that is what it takes to ensure every American’s freedom of speech is protected online. We remain firmly convinced of the importance of our cause and as such, we look forward to our next day in court.”

According to The Hill, YouTube reacted triumphantly:

“PragerU’s videos weren’t excluded from Restricted Mode because of politics or ideology, as we demonstrated in our filings,” a YouTube spokesperson said in a statement. “PragerU’s allegations were meritless, both factually and legally, and the court’s ruling vindicates important legal principles that allow us to provide different choices and settings to users.

The answer to the current gatekeeper problem may not be in the courts. It is in developing alternatives, though that is much easier said than done.

———————————

Prager University v. Google – Federal Court Order Dismissing Case by Legal Insurrection on Scribd

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Comments

Trust busting time is upon us.

    Shane in reply to alaskabob. | March 28, 2018 at 2:36 pm

    I hope not.

    Unless the monopoly is sanctioned or created by the government it won’t last and we don’t need the big nose of unintended consequences snooping around. It never ends well.

      RobM in reply to Shane. | March 28, 2018 at 4:33 pm

      cough cough, Standard Oil cough cough… AT&T , cough cough…

        Milhouse in reply to RobM. | March 28, 2018 at 6:37 pm

        Yes, what about Standard Oil? It was not a monopoly. It neither could nor did extract monopoly rents from consumers. Not only did it have actual competition, like any business in a free market it had to worry about potential competition, and therefore could not raise its prices more than a free market would bear. The “progressive” jihad against Rockefeller, like all such campaigns from time immemorial, was driven by pure envy and malice, the hatred the political class always bears for the most successful of the productive class. “You’ve built something beautiful, and now we will take it away.”

          Ragspierre in reply to Milhouse. | March 28, 2018 at 7:32 pm

          Yes. I suggest a very well documented and entertaining read; “The Myth Of The Robber Barons” by Burton W. Fulsom.

          AT&T WAS a very good example of a government-protected monopoly, but never Standard Oil, which brought very cheap kerosene (and thus light) to millions of Americans before the electric light. It was also a paragon in its time for reducing pollution.

          Aarradin in reply to Milhouse. | March 29, 2018 at 4:01 am

          Have to agree.

          Schoolkids still get the brainwashing on this one, with the story told entirely from one side, but when you start looking at the facts – there really was no cause for the govt crackdown on Standard Oil and, worse, we’d almost certainly all have been better off if they hadn’t.

    Milhouse in reply to alaskabob. | March 28, 2018 at 3:25 pm

    And all honest conservatives will oppose it, just as they did every other time. “Trust busting” is motivated by pure greed and envy, like every other leftist initiative.

    YellowGrifterInChief in reply to alaskabob. | March 28, 2018 at 6:04 pm

    Yeah, lets break up Sinclair Broadcasting.

This suit and its dismissal are probably necessary steps along the way to justifying exactly WHY intervention will be needed.

That result is not unexpected.

However disappointing to Prager the dismissal is not unwarranted. . The statutes do not anticipate private entities serving as virtual public gathering places.

It is one of those rare areas where additional Federal legislation may be needed.

    Shane in reply to clerk. | March 28, 2018 at 2:39 pm

    There is never a need for intervention into markets. Fraud and theft can be corrected by lawyers with clients. I don’t understand why people are so quick to jump to solutions that involve the government when in other areas they are up in arms at the prospect.

      clerk in reply to Shane. | March 28, 2018 at 4:41 pm

      Under laboratory conditions your statement is true. But many market spaces are not free and competitive markets. YouTube effectively has a near monopoly in its market space. That monopoly was based on solid competition. Prager U has little alternative.

      The question then is do you wish to give YouTube the absolute ability to shut down without recourse. Do you think it would be fine for your bank to shut you down because you blog on legal insurrection? The bank could even report you to Cheksystems which functions as a blacklist. These actions would not violate the First Amendment.

        tom_swift in reply to clerk. | March 28, 2018 at 5:41 pm

        A monopoly is not “based on solid competition”. A monopoly is a legal stricture which prevents any competition.

        When installing the early power grid, a local monopoly made sense. Urban streets wouldn’t be torn up whenever a competitor had to install his own hardware to get electric power to homes somewhere on the street. Streets just aren’t big enough to fit that much high-voltage wiring.

        But as long as ICANN or whatever wants to control the online world doesn’t prevent anyone else from carrying and indexing videos online, there’s no question of a monopoly.

      Voyager in reply to Shane. | March 29, 2018 at 10:08 am

      Is barring discrimination an intervention in the market?

      What I’m seeing here is a cadre of businesses refusing to serve certain users because those users hold opinions that the owners disapprove of, yet are non-impactful to the service in question. By that standard, would it be equally legitimate for a sandwich business to refuse service to people who did not believe in space aliens? Perhaps in an environment where there are currently other sandwich shops in the area, but what if it is all of the sandwich shops in the area are refusing such service?

      Given that there are currently very few entities filling the role of YouTube, Google, Apple, and Netflix, and that they, and the overwhelming majority of companies, not just in the internet (National, Delta, Starbucks, Walmart, etc etc etc) have been captured by a specific opinion control set, I’m coming to the position that difference of opinion itself needs to become a protected category.

      When so many corporations see little to no downside to censoring certain political positions, and see tremendous downside not to, you progress to a society where despots do not need to control the government to censor; they let the companies do it for them.

        Milhouse in reply to Voyager. | March 29, 2018 at 6:42 pm

        By that standard, would it be equally legitimate for a sandwich business to refuse service to people who did not believe in space aliens?

        Yes, it is, unless it’s in a place where there’s a law against it.

          Voyager in reply to Milhouse. | March 30, 2018 at 12:43 am

          But an area where individuals are barred the ability to freely debate their opinions, and are confined to hidden chambers, factions are bred, that threaten to tear the country asunder. Was this not the purpose of of the first amendment? Is it not a fundamental right, that to infringe upon is a great injustice, regardless of who does the infringing?

          I know this is not protected under law, and I begin to question whether it has become time to change that. People are going to act against these companies. Is it just and proper to impose anti-trust actions on companies when they are instead suppressing speech?

          It has be separately pointed out that the social media companies have been protecting themselves by claiming to be platforms, rather than publishers, yet now seem to desire the same control as publishers do. Yet, will imposing the legal requirements of publishers on social media companies be more or less destructive than barring platforms from shutting down unpopular opinions?

          I’m genuinely torn on this. On the one hand, I can blacklist youtube, but to do so requires cutting myself off from so much ready knowledge of the world that it is terribly diminishing, in the vain hope that the successor will remain uncorrupted in it’s turn.

        Milhouse in reply to Voyager. | March 29, 2018 at 7:42 pm

        Is barring discrimination an intervention in the market?

        Yes, and conservatives are against it in principle, even if sometimes they waver in practise.

So basically, as videos move away from Youtube, it will be interesting to see if and how google suppresses access to those videos. It is rarely the crime, and almost always to coverup which makes things interesting.

I think restriction on competing technologies will be a bigger question. If google or youtube claims restrictions on information delivery via patents will be key in trust busting.

It is time for google and amazon to be busted up.

buckeyeminuteman | March 28, 2018 at 2:07 pm

If a bakery must bake a homosexual wedding cake, musn’t youtube also host videos that run contrary to their intolerant viewpoints? While not exactly apples to apples, does anybody else see the resemblance in these cases?

    I agree, but I think that time is better spent on alternatives. Commies need restrictions free markets don’t.

    P.S. I hope that those bullshit laws can be overturned at some point they definitely carry a load of unintended consequences and can be easily be weaponized as we have seen.

    That was my thought, cake or videos, what the heck is the difference other than liberal judges?

      Shane in reply to gonzotx. | March 28, 2018 at 2:40 pm

      Ideology … clearly 😛

      Milhouse in reply to gonzotx. | March 28, 2018 at 3:39 pm

      There is no difference. If this were a case of a gay plaintiff suing Youtube for removing videos promoting homosexuality it would have the same exact result. As far as federal law is concerned bakeries are free to openly refuse to deal with homosexuals, if they like. No federal court in the land would entertain such a case for a minute. If you live in a state or city where such discrimination is illegal you have to take it to state or local court.

    buckeyeminuteman: If a bakery must bake a homosexual wedding cake …

    A “homosexual wedding cake”?

    In any case, a baker can’t discriminate against a protected class when selling the very same cake. Political viewpoints don’t constitute a protected class.

    OMG this again? How may times must you be be told that THERE IS NO SUCH LAW that businesses must deal with all comers on the same basis. It is everybody’s right to choose which customers to accept and which to reject, on any basis they like, EXCEPT THOSE EXPLICITLY PROHIBITED BY LAW.

    In the USA there is no federal law against discrimination on the basis of either sexual orientation or political opinion. Accordingly bakeries not only need not bake cakes specifically for same-sex weddings, they need not sell cakes to homosexuals at all, EXCEPT IN THOSE PLACES where state or local law says otherwise. No federal court has ever ordered anyone to bake such a cake. State and local courts may do so in those places where such laws exist.

    The same applies to discrimination on the basis of political opinion. There is no federal law against it, so people are free to do so except where there is a state or local law against it. Accordingly any claim Prager may have under CA law belongs in state court, not in federal court.

      Aarradin in reply to Milhouse. | March 29, 2018 at 4:08 am

      They might, and soon – US Supreme Court is hearing a ‘cake bakers’ case right now.

      Masterpiece Cakeshop v. Colorado Civil Rights Commission

        Milhouse in reply to Aarradin. | March 29, 2018 at 7:05 am

        Excuse me, they might what? Federal courts might order bakers to supply same-sex weddings? No, that will definitely never happen, unless Congress makes a new law. The case before the Supreme Court is the exact opposite. If it goes the way we hope, states and localities will no longer be able to impose their antidiscrimination laws on anyone whose work is inherently artistic and expressive. If it goes the wrong way, they will still be able to do that. But in neither case will any federal court or agency be able to do so, because there is no federal law against even open anti-gay discrimination.

        In any case, this has nothing to do with Prager. Prager is arguing just the opposite, that Youtube should be forced to host its videos, and prevented from discriminating against it because of its political opinions. And while it might have a case under CA law, it has none under federal law, where such discrimination is completely lawful.

This is the right answer. Everyone thought that MicroSoft should be broken up blah, blah, blah … What is MicroSoft now … nothing. There are already alternatives to YouTube and people can embed videos on their own site also as an alternative. No speech is being infringed and Google will get what MicroSoft got. We don’t need more laws and regulations, because we think that Google holds a monopoly on speech … they don’t. Find another way because even in a semi-free market there are alternatives.

P.S. A great alternative to Facebook is Minds.com
Ahh remember the good ole days of MySpace. Things change in free markets never forget it.

ahad haamoratsim | March 28, 2018 at 2:15 pm

Let me get this straight; YouTube keeps Prager’s case from being heard on the merits by filing a motion to have it dismissed on procedural grounds, then claims the federal court vindicated YouTube on the facts and on the law, after the court notes that Prager might have a case under state law? Sorry, I’m missing something here.

Developing alternatives. Thanks for the advice – and the dreamy disclaimer (It’s like being handed a peppermint lozenge after being kicked in the nuts.) But I digress. If only Prager had thought of alternative media before shovelling hard earned money into the gaping, pernicious maw of our judicial system. If only. If only.

That shall be my battle cry:

IF ONLY, LADS! NOW – OVER THE TOP!

;;;fade to black;;;

    Shane in reply to Tiki. | March 28, 2018 at 3:21 pm

    Lazy progs want the government to fix their problems. Since I know that you read this blog and comment here you are not that so …
    You are either unaware or delusional as to how things work. I will go with unaware. To that end here is the answer. I can think of three alternatives to YouTube off the top of my head, Vimeo, DTube and Pornhub. Why do I know this, because searched for alternatives when Google started threatening (and then nuking some) my favorite gun channels. When Google pisses off enough their customers to justify the time and expense to move to new platforms then people will (remember MySpace). If you want kick Google in the balls then disrupt their analytics because that is where they are making their money. You can do so by changing your search engine, removing your email and embeding your own videos. Is any of this ideal … maybe not, but is far preferable to more regulation.

    If you liked what Trump did when he started curb stopping all of the regulatory agencies then you can help buy making sure that the Google’s of the world get your very own Trump treatment. Good luck.

      Tiki in reply to Shane. | March 28, 2018 at 4:28 pm

      Humorless scold or pontificating, self-satisfied schmuck.

      You could be both. Keep at it, lad. Both hands on the plow. Hard work and all that. But in the meantime? Foff.

The answer to the current gatekeeper problem may not be in the courts. It is in developing alternatives

That’s pretty much it. The answer is PragerTube. As long as Google/YouTube isn’t doing anything (aside from routine competition) to keep such an operation off the air, nobody can have any real complaint.

Develop alternatives? Are you on crack?

Do you have *any* idea the barriers to entry to hosting any appreciable amount of video content? Do you have a couple hundred million (minimum) laying around to start something up (that’s bound to fail due to no name recognition)?

    Petrushka in reply to Vancomycin. | March 28, 2018 at 3:30 pm

    PorhHub and the like already have the servers and the bandwidth. They are considering starting non-porn sites.

      Aarradin in reply to Petrushka. | March 29, 2018 at 4:12 am

      Saw an article the other day that gun videos are moving to Pornhub because of the censorship at youtube.

      Maybe pornhub should create a new, separate, brand (using the same servers) for their non-porn business – so more people will use their service.

      Call it VideoHub or something.

    daniel_ream in reply to Vancomycin. | March 28, 2018 at 3:51 pm

    My God, you’re right! It’s hopeless! No one could ever hope to compe-

    https://en.wikipedia.org/wiki/List_of_video_hosting_services

    Oh.

    This is not, and never was, about freedom of speech, or politics. It’s about the Free Shit Army bitching that they’re not getting their Free Shit. PragerU wants YouTube to host their videos for free, and YouTube has now declined to continue doing that, and instead of shrugging and going “oh well” and pouring all those legal fees into a paid hosting account at Vimeo or Rumble they decided to launch a foolish, quixotic, utterly meritless lawsuit.

    Is YouTube evil? Hell, yes. But PragerU has shown themselves to be stupid, disingenuous, and/or hypocritical, take your pick.

casualobserver | March 28, 2018 at 3:30 pm

I’m not so sure that building up an alternative is as difficult as it sounds. Already sites like Vimeo host content that you can find by searching on their site. Likewise, CDN (content delivery networks) like Akamai are very competitive, so finding places to host the content so it’s easily accessed across the country or the globe is not difficult.

The only thing Google might do that interferes is prevent search results from showing content from another site. So, if for example, someone created NotYouTube dot com, it could be blocked. So getting traffic would have to be accomplished other ways besides through search.

    tom_swift in reply to casualobserver. | March 28, 2018 at 5:56 pm

    It’s not difficult at all. Even hosting isn’t a problem when you can set up your own server. There’s a substantial connection charge to the same phone lines the big server farms run on, something around a couple hundred a month last I checked. Much cheaper and probably adequate is paying for a static IP address from a big vendor like, maybe, Verizon, and run the home server (just another computer, running Apache or the MS equivalent) from that. I know several people who do it just for the hell of it, not a business venture.

    The real headache is the huge number of claims from people insisting that posted content is copyrighted and demanding that it be taken down. All that rubbish has to be investigated, and that takes manpower.

Would classifying YouTube a public accommodation make any difference?

    Milhouse in reply to MarkS. | March 28, 2018 at 3:44 pm

    No, it would not. Public accommodations are allowed to discriminate on any basis not specifically prohibited by law.

The court is correct in this decision.

YouTube is a private entity and it is entitled to set standards for deciding which videos to host and which to deny hosting too. This is the same argument used when bakers decide that they do not wish to provide services for an event the premise or purpose of which they disagree. Unless it can be shown that YouTube is a monopoly engaged in practices which restrain trade, they can do pretty much what they want.

The same people who complain about the size and power of YouTube are the same people who allowed them to get that big and powerful by nor providing any serious competition to them. The chickens have come home to roost.

    Aarradin in reply to Mac45. | March 29, 2018 at 4:14 am

    I agree, except that many courts have already ruled against cake bakers (and photographers, and people that own land/buildings used for wedding receptions) – in clear violation of the principles you point out.

    Really hoping SCOTUS puts an end to that this term with the case currently before it.

      Mac45 in reply to Aarradin. | March 29, 2018 at 1:37 pm

      The difference is that the decisions against cake bakers are all based upon state anti-discrimination laws and come out of state court. And, all of these cases are based upon a government establishment of the class of people being discriminated against as being a “protected class”. To date, conservatives are not designated as a protected class.

      Milhouse in reply to Aarradin. | March 29, 2018 at 6:49 pm

      Arradin, those cases can only happen in those places that have a law against discrimination on the basis of sexual orientation. In places where there is no such law bakers are free to discriminate and no court is even trying to say otherwise.

      And no, even if the SCOTUS case comes out the right way it won’t put an end to it, except for those whose work is genuinely individualized and expressive. What’s needed is a challenge to the premise that refusing to participate in a same-sex wedding is a form of discrimination against gay people. Unfortunately this is not that case.

“PragerU’s videos weren’t excluded from Restricted Mode because of politics or ideology, as we demonstrated in our filings,” a YouTube spokesperson said in a statement.
—————

So, what were YouTube’s stated grounds for removing the videos?

    Shane in reply to guyjones. | March 28, 2018 at 4:19 pm

    Who cares … YouTube/Google doesn’t like conservative voices what more is there to understand?

      guyjones in reply to Shane. | March 28, 2018 at 5:49 pm

      Yeah; I understand the general animus towards conservative voices on the Internet — that’s been well-documented.

      I’m saying that YouTube is supposed to have policies and guidelines, so, as much as it possesses total leeway to govern speech on its forums as a private actor, it still has to articulate a stated rationale to parties that it believes have fallen afoul of its regs. I’d like to learn what that stated rationale was.

        tom_swift in reply to guyjones. | March 28, 2018 at 5:58 pm

        Oh, I expect YouTube will just lie about it.

        Which is still no call for legislative or regulatory remedy.

I see the point of those who say this is a correct, although unpleasant, ruling.

YouTube’s claim that politics and ideology had nothing to do with it is nonsense, though.

So, if Prager U. goes to an alternate site, or sets up its own, and I search using DuckDuckGo and not Google, will I find them? Seems a conservative investor with deep pockets would get something going here.

Holding that YouTube is a state actor would be a pretty nasty president. Now, time to regulate them as a monopoly; IWhen you consider the advertising revenue split that YouTube offers, there is no competition.

Ideally, as youtube becomes more and more ideological in filtering what content they allow access to, there would be more commercial alternatives. Ideally.

However, youtube and ideas like it operate a bit like phone networks, in that the larger and more universally adopted, the more valuable and useful the idea/network/tech is. A single phone is useless. A small number of phones which can talk to each other is usefull. A universally available phone network where you can find anyone else “online” or connected is invaluable.

Youtube may well have a “right” to refuse service to individuals and organizations whose politics are not their own – just as they have a “right” to decline carrying of adult videos, for example. Although the public at large would be better served if they confined their business practices to universal standards – like no violence or porn – rather than use political filters as well.

Part of the problem is the Dumbing Down of modern Lib Think, where contrarian (to your own) opinions is now equated with actual physical violence, justifying their current acceptance of Brownshirt fascist tactics and attacks.

A technological solution to overturning youtube’s (and other monopoly-like big tech companies) power to silence dissent would be preferred to a legislative one, IMHO. Rather than ghettoize on-line video content even further, we need One App To Find Them, one app to search them all and in it’s interface bind them. Or in other words, an app which could search youtube (and any other popular video community site) without you having to visit them individually.

Unfortunately, youtube would shit a brick, and do it’s best to sabotage any such effort. This is where legislation would be useful and less coercive – just like phones have to be be able to talk to other phones, whatever the company, make youtube and any other online video community above a certain size have to provide the “hooks” so an outside app could serve as an uber-interface above their default interface.

Youtube wants to “take down” a Prager U video because of “microaggression” or some other BS reason? Fine, they can ON YOUTUBE. They won’t get the clicks (and the income). Some other video community can host it, get the clicks, get the income, but to the end-user it will be just as visible and accessible as if YouTube hadn’t lost their collective minds and decided disagreement was verboten.

what about the Interstate Commerce Clause restricting trade of Educational materials?

    Milhouse in reply to mathewsjw. | March 29, 2018 at 3:29 am

    Huh? That doesn’t even make any sense. I don’t think you have any idea what the “interstate commerce clause” is.

Yes, the remedy is in “developing alternatives.” To oligopolies. Which use their market power to squash alternatives. I think I see a problem.

I wonder if a goal of the lawsuit was to reach the discovery process and find out if YouTube actually was a state actor.

    Milhouse in reply to JustTed. | March 29, 2018 at 3:29 am

    How could it be? Secret orders from the FBI?!

      JustTed in reply to Milhouse. | March 29, 2018 at 3:36 am

      Might be as simple as an informal agreement between YouTube and some regulatory agency. Perhaps similar to how Operation Choke Point was done only more under the radar.

If “The Court” has rejected this case upon these grounds, I am unable to understand how it can define (and punish) “hate speech.”

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