Dennis Prager Seeks Injunction To Keep YouTube From Administering Its Own Site While YouTube Seeks Dismissal
from the free-speech-is-for-everyone dept
Late last year, we brought to you the story of Dennis Prager, noted conservative commentator, suing YouTube, noted place where you can watch videos, because the site had put some of his videos into restricted status to keep them from the eyes of younger users. The case is still ongoing and is still strange for many reasons, including Prager asserting his lawsuit on First Amendment grounds, his insisting that YouTube is a public forum and not a private company, and his belief that the Section 230 protections that protect YouTube from every last bit of this somehow don't apply.
But now he is upping the ante, requesting the court grant him a preliminary injunction against YouTube to keep it from operating its filters on its own site when it comes to his video content.
Presenting U.S. District Judge Lucy Koh with a free speech issue of "profound importance," Prager on Friday even nodded in court to the thoughts of net neutrality supporters.
"Among others, legal scholars Professors Jeffrey Rosen and Timothy Wu warn that private corporations like Defendants 'have more power over free speech and privacy than any president, king, or Supreme Court justice,'" states a court brief. "Because the First Amendment is 'centered on the problem of wrongful discrimination in communications' these scholars point out that 'anyone who wants to understand free speech in the twenty-first century needs to know how the concept has expanded over time' to include the vast and concentrated power over speech wielded by purportedly private internet intermediaries. And, with the recent curtailment of net neutrality by the FCC, the unprecedented concentration of power over speech by private intermediaries will necessarily be 'followed by an effort to crush ... political opponents and favor ... political supporters.'”
Let's just start out by noting that the nod to the repeal of net neutrality feels rather odd coming from someone who does't support net neutrality to begin with. On top of that, the complaint that YouTube has built a great platform for speech that many, many people enjoy using does not somehow put it under the scope of the First Amendment. To get there, Prager's legal team continues to suggest that YouTube is a public forum rather than a private entity, relying mostly on YouTube's own statements about being a forum for speech to do so. This will almost certainly not work, however, as a statement like that doesn't magically strip a private entity of its rights and transform it into a public forum. Worth noting too is that for all the talk of "censoring" in Prager's complaints, his videos are still on the site for anyone wishing to see them. They are just differently searchable having been flagged as restricted. Given that this all comes down to subjective filtering by a private entity, and given that Prager's restricted videos tackle subjects such as rape and abortion, it's hard to see how his claim that this is all the work of a liberal conspiracy to shut down his conservative speech is going to survive.
Google, not surprisingly, has likewise moved to have all of this thrown out on its own First Amendment basis.
Just as Prager was filing a bid for an injunction, YouTube's parent was moving to dismiss the case that alleges that Prager's videos are on lockdown while liberals like Bill Maher and Lady Gaga are allowed to speak freely on YouTube without being restricted in kind.
According to Google, "restricted mode" merely means that the video has been determined to contain "potentially mature" content that may not be suitable for all audiences. "Decisions about which videos fall into that category are often complicated and may involve difficult, subjective judgment calls," write Google's lawyers, adding that none of the videos are removed from YouTube, and all of them can be viewed by users who want to find them.
Google argues that Prager's claims are barred by Section 230 of the Communications Act as well as the First Amendment.
While the Section 230 argument is more than enough to make this lawsuit fit for the dismissal pile, note that what Prager actually wants is to strip YouTube of its own First Amendment rights by asserting his, all while he continues to enjoy YouTube's product,whcih is hosting his videos and which, again, are still on the site. This sort of pretzeling of one of the key laws governing our country would be sad from anyone, but Prager's own noted interest in protecting the First Amendment makes this all the more eyebrow raising.
I don't expect any injunction to be levied against YouTube.
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Filed Under: dennis prager, first amendment, free speech, injunction, videos
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Public versus Private Forums
As the power grows, so does the need for neutrality, transparency, and lack of arbitrariness. Think about those silly copyright takedowns last week of white noise, think about "hate speech" (which Prager is arguably spewing), and "Fake News".
I know that an injunction here is most likely to streisand prager's stuff, so I agree it's unlikely (especially with Koh) and the wrong approach. But what about the DMCA takedown context?
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Re: Public versus Private Forums
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Re: Public versus Private Forums
I would think that is his motive.
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That said, I'm usually happy when one of their ads pops up before a video, because I can mute the phone and walk away for five minutes knowing that Prager is paying for a five minute advertisement which (given my viewing habits) provides revenue to someone who disagrees with him.
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Re: Public versus Private Forums
'Hate speech' is fully-protected speech under the 1st Amendment, so even if YouTube were somehow to be subjected to the same restrictions as the government under the 1st Amendment, it would still be forbidden to censor based on 'hate speech'.
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Re: Public versus Private Forums
Not really. But even if so, I think that YouTube have generally been quite transparent and neutral where possible. Its hand has been forced at times by being forced to follow relatively arbitrary rules upon which to based ContentID (something that was not its choice to implement), and by the complexity of what they're forced to do, which ensure false positives. But, YouTube's own decisions have always been pretty clear (on the filtering side, at least, they've made some obscure decisions involving ad revenue and the like).
"But what about the DMCA takedown context?"
What about it? The DMCA hasn't been mentioned here.
If you're talking about other stories where the DMCA is used to take down content, that's a law forcing YouTube's hand due to copyright law, which has nothing to do with this attempt to stop YouTube categorising and filtering content according to its own rules. This is a totally different issue.
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Re: Public versus Private Forums
What about it? The white noise takedowns were not DMCA takedowns, and there was nothing DMCA-related with Prager's videos.
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If the videos were hosted on Vimeo, that site would have every right to age-gate his videos just as Google does. The right to speak freely does not include the right to an audience.
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...
I'm sure the evidence will be forthcoming any moment.
...
Any time now
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Yet, I do make the mistake of assuming intellectual honesty among people sometimes. A shame so many of you let me down so often, but there you go.
"And notice, no denial that TechDirt is on the google pay(off) roll"
That may be because it's irrelevant to the discussion at hand, outside of the ravings on one obsessed known liar.
Either way, nobody's ever posted any proof of this. That Google was one of numerous sponsors on a particular non-Techdirt project, and that Mike once attended a talk in one of their buildings are the only things ever offered (the former being taken from public notification on this very site). That's it. By that standard, I'm paid off by Red Hat, VMWare, Cisco and many other major corporations, though I've never seen any money come my way.
There's never any proof of the supposed conspiracy that you wail about so often. Almost as though it doesn't exist.
"They're in a monetary alliance with google. You can't get any more insidious than that."
You do realise that thousands upon thousands of companies are in alliance with Google by your standard. All of them so insidious, right? Yet, you only attack this one. Rather strange.
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Re: "TechDirt is on the google payroll"
https://copia.is/wp-content/uploads/2015/06/sponsors.png
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Re: Re: "TechDirt is on the google payroll"
It's also notable that your obsessive attacks only focus on one of the sponsors. If your claim was true, then Mike must also be a shill for Automattic, the MacArthur Foundation and Yelp, among others. Yet, you never make this claim. You only ever name one of the showcased sponsors, never the numerous others.
I wonder why that is - could it be you're full of shit?
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Re: Re: Re: "TechDirt is on the google payroll"
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Re: Re: Re: Re: "TechDirt is on the google payroll"
Then, why do you never present proof? No, the fact that Google were among a number of sponsors for a separate project that Mike publicly disclosed really doesn't count.
"trying to suck Mikes twat"
Instead of inventing lunatic theories with zero proof, why not open a biology textbook? You'd be amazed at how much you don't understand, the errors just in this sentence fragment are hilarious.
Although, this does help prove my theory that you're a developmentally challenged child.
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Why has Mike opted to hide proof of his monetary alliance with google?
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Re: Why has Mike opted to hide proof of his monetary alliance with google?
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I feel fairly certain that Google could get away with a simple response to this:
https://sweartrek.tumblr.com/image/168767329041
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"Levy: 2. Law to seize property in order to satisfy a judgment: often with on"
Wikipedia nearest is "A legal action, where property of a judgment debtor is taken for public sale to satisfy a monetary judgment"
Wiktionary has "1. To impose (a tax or fine) to collect monies due, or to confiscate property. or 7. (law) To erect, build, or set up; to make or construct; to raise or cast up.
Or Don McLean in "American Pie": "drove my Chevy to the levy, but the levy was dry..."
I suppose it's possible you're using "levy" correctly. All evidence besides my lack of ever having seen your use is against it, though. The usual form is "grant an injunction".
Anyhoo, guess we'll see whether lawyers follow my notions that web sites don't have absolute protection under Section 230, over-arching laws says businesses give up rights when invite the public, and so on. This "levying" bit isn't the main point, though.
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Re: "Levy: 2. Law to seize property in order to satisfy a judgment: often with on"
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Re: "Levy: 2. Law to seize property in order to satisfy a judgment: often with on"
We'll wait.
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Re: Re: "Levy: 2. Law to seize property in order to satisfy a judgment: often with on"
If he had one.
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(Incorrectly spelled lyrics are no excuse for protection, of course. The RIAA has sued people they didn't even get the name right for, and if it looks like a duck...)
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Did something happen to Don McLean?
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Alternative explanation
"Look at me, I am an attention whore!"
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They are not special
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The main thing is for people to grow up and stop pretending to be victimised when their specific pet subject is caught up in the problem.
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Well sure. No king, president, or judge ever gave you a novel medium and distribution method over which to communicate your thoughts, did they? Claiming they have more negative power over speech than any PTB is simply a hoot.
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Listener of Prager here
Dennis should follow his own code of conduct and create "PragerTube" where he can operate and control content just like YouTube. If his ideas have merit they will gain their own market a potentially overthrow YouTube. Time to put some money where that mouth is.
Just another example of my constant complaint that both sides of the Isle not wasting any time trying to destroy the 1st when it suits their politics!
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Re: Listener of Prager here
As mentioned by other comments, he likely wants the free use of the platform, and probably feels that he can get free advertising as a result of this lawsuit (sadly, something he is probably correct about).
"Dennis should follow his own code of conduct and create "PragerTube" where he can operate and control content just like YouTube."
There are 2 problems with that:
1. Like most such people, he won't wish to give up the free promotion that larger platforms gives him. If he sets up his own platform, he both loses the access to a massive YouTube community that won't follow him there, and takes on board all the costs and responsibilities of infrastructure, advertising, etc. himself. It's a massive risk and potential cost without a guaranteed return.
He'll whine all he wants and try to force them to give him everything for free, he won't voluntarily remove himself from that.
2. All ideologically-led attempts at creating alternative to general platforms have been miserable failures. The ideology-first approach tends to lead to platforms that are either horrible to use or actively chase away most people who might be curious enough to use them. Names that come to mind like "conservapedia" and "reaganbook" have been laughable in their ineptness.
"both sides of the Isle"
Aisle.
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Re: Re: Listener of Prager here
So... he might be smarter than people give credit for then? Though he would hardly be the first person to think up something like that and it is more likely that someone on his team thought of it rather than him.
"All ideologically-led attempts at creating alternative to general platforms have been miserable failures."
Are you sure you know what you are talking about? There is no such thing as a 'non-ideologically-led' attempt at anything. All things have an ideology that drives them, in fact, the ideology is usually what makes it what it is. YouTubes ideology made it a success. Now, it is only successful because of its massive size. I would wager that if YouTube had the same ideology it does now when it started it would have failed because something else would have won instead. In fact I have been watching more video's on other platforms than YouTube than ever before. Like Twitch, Vimeo, and Patreon. I watch those more now than I used too.
"Aisle."
Appreciate the correction.
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Looking at your reply, more than you do, for sure. Unless you want to back your words up with something resembling evidence.
"YouTubes ideology made it a success"
Which was...? How does it differ from what it does now? That's the problem with a lot of these conversations - lots of bare assertions, no facts.
"In fact I have been watching more video's on other platforms than YouTube than ever before. "
Go ahead, and encourage everyone you know to do so. Bolster their competition, nurture new communities, encourage new visitors. Much better than whining to the courts about how YouTube's being mean to the poor widdle right wingers.
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They want advertisers to pay them money by making as much video available as they can, and they want the government, to the degree possible, to stay the heck out of their decisions about the platform.
The name for this: A pragmatic ideology of mammon!
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Re: Re: Re: Re: Re: Listener of Prager here
Even if they did have some kind of overall political ideology, it's likely only because that's the one that affects their income and user base in the most positive way. For example, if you have a set of users and advertisers going "we don't want to be associated with that kind of racist video" and another going "well, that's not really racist because reasons", YouTube are going to err with the first group because that's where the income is.
If you're part of a community that's regularly on the wrong side of that argument, I can see how it might appear to be biased against you. But, I'd be asking first why they're accused of such things so often first, rather than whining about discrimination.
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Capacity costs vs. market constraint.
But having looked at private stream hosting rates lately... The price/Gigigabit that youtube must be paying, must be than a 1/1000th of what is available to startups at this time. I can't say exactly, but the differential must be huge.
So the guy is barking up the wrong tree here. But if capacity was available at comparable rates, Youtube wouldn't be as dominant as it is. And the reason that capacity isn't available is the carriers have bought out companies in horizontal markets, and dug their heels in like a bunch of five year olds, and are refusing to build new capacity for anybody but their subsidiaries.
Which is why carriers and content providers must be separated by law, and carriers put back under title II.
So Prager is wrong. But the court wouldn't even be hearing this kind of knucklehead case if regulatory oversight was preserving and fostering market competition in the carrier space.
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Re: Capacity costs vs. market constraint.
Also Facebook and lots of white label providers, along with a lot of other lesser known platforms. YouTube are certainly dominant, but you can largely thank the **AAs of this world for killing them off rather than any specific wrongdoing by Google.
"The price/Gigigabit that youtube must be paying, must be than a 1/1000th of what is available to startups at this time. I can't say exactly, but the differential must be huge."
But, that is standard throughout any business. Large customers get preferential rates for volume. That's true whether you're talking about rental, manufacture, shipping, whatever. YouTube will get a lot of discounts on a lot of equipment, but that will be because they're buying much more than anyone else, and that is how business operates, like it or not. Also, remember this did not appear overnight, and YouTube was originally run by a couple of guys paying retail prices. There are reasons why they because dominant, and it wasn't simply because Google bought them and got a good deal on the back end.
"But the court wouldn't even be hearing this kind of knucklehead case if regulatory oversight was preserving and fostering market competition in the carrier space"
Better still - the reason why this competiton is being removed is because a bunch of right wingers decided it should be a partisan issue and fought against NN. I don't know if Prager is one of those people, but he's certainly on the side of many arguments that those types of people will make, from what I can see.
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Re: Re: Capacity costs vs. market constraint.
Not at that scale they don't. Bolts are cheaper if you buy them by the ton, but they don't get cheaper than raw iron.
Though there is something to be said for front loaded expenses. My expectation is that Youtube has been subsidizing that capacity through operating losses for some time. Now that the carriers are clamping down and basically refusing to build infrastructure, Youtube has to pivot and try to make their existing capacity profitable. Which is probably why they have gotten more intrusive with many of their service offerings lately.
Youtube is a whale. The broadband carriers have responded by making the pool smaller so it soffocates under its own weight. Again it's simple racketeering.
Of course this is sandbagging innovation for the entire country while they are at it. If this little pissing contest keeps going on, it is going to cost the U.S. a trillion dollars in GDP over the next 20 years. For nothing more than the ego's of a couple of silver spooned aristocrats holed up in their corporate fortresses.
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Re: Re: Re: Capacity costs vs. market constraint.
I don't get your point here. Of course they're not because there's a company in between the supply of the metal and the purchaser of the bolts who need to be paid for their work. What is your point, and how does that relate to YouTube getting a bulk discount on bandwidth because they buy so much of it?
"My expectation is that Youtube has been subsidizing that capacity through operating losses for some time"
Any proof of that, or just wishful thinking? I've never seen any evidence that anything like that happens.
"If this little pissing contest keeps going on, it is going to cost the U.S. a trillion dollars in GDP over the next 20 years"
Any figures to cite, that isn't your own ass?
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Re: Re: Re: Re: Capacity costs vs. market constraint.
Bandwidth does have a floor price of its own, of course, but exactly what that price is and what the constraints on it are is less clear than in the case of e.g. bolts.
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He's apparently disappeared from the conversation anyway, probably not wishing to look up the evidence for his other accusations.
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Re: Re: Re: Re: Re: Re: Capacity costs vs. market constraint.
Once we start looking at actual hard numbers, I suspect that that argument would begin to fall apart, but on the vague and handwavy general-impressions first look it does seem to hold together.
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Re: Re: Re: Re: Re: Re: Re: Capacity costs vs. market constraint.
I disagree. In brick & mortar scenarios, the majors not only have a huge advantage in branding, established customer base, experience and momentum, newcomers are also restricted by the size of their potential customer base. Online, you can reach everybody that a YouTube can, you just need to get them to come to you and stick around. The change in mindset to drive a few extra blocks to go to your store instead of Wal Mart is a lot higher than the mindset required to go to AC's Video Hosting instead of YouTube, you just have to convince them to try.
I suppose it depends on what you mean by "compete meaningfully" too. A person may not be able to set up a new site that does everything YouTube does and be successful, but then a person cannot simply set up a new store that copies everything their Wal Mart does either. People set up stores that are much smaller, fill niches, offer higher quality, etc. and compete that way, not by copying what the other guy is already doing.
The overall argument really doesn't make sense either. If the price of bandwidth is lowered to YouTube's level for everybody, they'll still use the same amount and they'll still have all the advantages they currently enjoy. Raise the prices, and YouTube might make some losses and/or adjustments in the short term, but they're not going to magically lose all the competitive advantages. "Leveling the playing field" with bandwidth charges won't make a damn bit of difference.
The bottom line is - larger companies always get good deals but that doesn't really matter unless you're trying to compete on price. This just sounds to me like someone thought about setting up a streaming service, balked at the price of bandwidth and decided that it was YouTube who's setting his pipe dream back.
Also, I notice he's talking about "private stream hosting" rates, not raw bandwidth. Seems to me that his bright idea includes the retail markup and service charges built into another company's service rather than trying to set up his own site, which makes this a doubly silly train of thought.
The fact is, YouTube are successful for a huge number of reasons, ranging from being the first mainstream brand name in the space to the RIAA having helped kill off a lot of its early competitors. Very little of their success has to do with bandwidth charges, so it's a silly hill to try and hold a battle upon.
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Google hates conservatives or Republican support video channels and they routinely sensor channels that aren't liberal supporters.
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"If it comes out the Prager's videos are not inappropriate"
...nothing will happen because the appropriateness is not what's at stake here, it's the ability for a private organisation to police its own T&Cs and community. The court are not being asked to declare that Prager's videos are suitable for kids, they are being asked to demand that YouTube's opinion of this be overruled and they be forced to host content is a way opposed to their own determination.
Perhaps if you weren't so driven by ideology you'd understand that.
"Google hates conservatives"
Don't use them then. Why do you people always insist on whining rather than do something about it? Is it because you realise under it all that you're lying, or just because you'd rather get free stuff from people you hate than work to achieve what you claim is needed?
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I would think doing what YouTube does take many resources, which means a lot of money. It's possible to do as a single person, but nobody wants to go to DisgruntledPoliticalViews.com when it means their friends are not there, their subscriptions are not there, and their other favourite YouTube celebrities are not there.
When the most-frequented "public squares" are under a private company's thumb and people refuse to go anywhere else... that's a problem even if the private company, and the fans, have every right to act however they wish. You can change a video platform, but you often can't change user viewing habits with it.
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Well, that's a problem that any community will have. Some have been successful at getting people to follow, some haven't. Nothing is guaranteed - if you can't get people to follow you elsewhere, maybe you only have so many followers because of convenience and people really don't care about your content? I can name a number of channels I follow on YouTube who I only watch because they show up on my feed, I never specifically seek them out, so I wouldn't miss them when they're gone. That doesn't mean that nobody will, only that I don't personally care that much about them.
That's part of the problem with these discussions - some content producers believe that their content is the most important thing in the world, but some proportion of their audience wouldn't even notice if they stopped making it.
"People dig in their heels and do not follow their favourite web celebs"
I'm not sure this is entirely true, and I'd argue that some platforms owe their success to people joining up to follow certain people. But again, you're not guaranteed viewers. It sucks that you depended so much on a single platform when building your audience, but that's how these things work sometimes.
"I would think doing what YouTube does take many resources, which means a lot of money."
As do most large businesses. But, no matter how successful Starbucks is there's always new coffee shops opening, and a lot of them get on OK.
"It's possible to do as a single person, but nobody wants to go to DisgruntledPoliticalViews.com when it means their friends are not there, their subscriptions are not there, and their other favourite YouTube celebrities are not there."
Perhaps. But, what's the real problem there? Your chosen URL suggests that it's a politics-only site, and one that's geared toward trolling and arguments too. If I'm someone who has many interests outside of politics and follow many non-political videos, why would I choose to go there when you're offering me only 10% of what I want and I get the other 90% at YouTube? I have friends who have no interest in politics, so why should I move away from them since they won't come to a 100% political venue at any cost?
There is a market for more specialised venues, but you have to offer something other than "hey I set this site up, follow me!" to get people way from their existing venues. But, that's the same with any business - whether you're trying to drag someone away from Wal Mart or a local mini mart, you have to do more than set up a shop around the corner if you want the customers to keep coming in. You have to give them a reason to follow you other than waving at them and saying "I'm over here now!".
"When the most-frequented "public squares" are under a private company's thumb and people refuse to go anywhere else... that's a problem even if the private company"
The government declaring that companies lose their rights when they reach some arbitrary size is equally troubling, don't you think? I'm all for some kind of regulation, but you're arguing that YouTube should lose all rights to moderate their own platform because you think they're too popular.
"You can change a video platform, but you often can't change user viewing habits with it."
No, nor should you be able to. It's the viewer's choice what they consume, not something for the content producer to dictate. It's troubling that you think otherwise.
Work on ways to attract people to follow you, not on ways to make the government force someone else to provide your platform.
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None of those things are issues that YouTube should be forced to solve by way of making separate policies and terms of service for conservative voices just to make said conservatives happy. If Prager is unhappy with YouTube, trying to make the government force YouTube into giving him a uncensored platform that falls outside the standard terms of service is a really shitty solution to his complaints.
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Yet another example of how the idiotic "politics as a team game" infection is so bad for intelligent discussion.
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That is a hecklers argument, let somebody else build the audience for you to commandeer.
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There's your problem.
Liberals used to be respected till they got tarred with the hippie brush. After that, partisans began to use wedge issues to persuade us to hate the other team. The only way to win this game is not to play.
And can we please stop referring to far right whack-jobs as "conservative" until you can explain to me what they're conserving. I'll be waiting for a while, won't I?
/Rant
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Re: Re:
The most satisfactory-seeming answer I've been able to come up with thus far is that it must have had to do with spending policies.
If you look at uses of the words outside of the political context, "conservative" can be found in a number of slightly differing usages, but "liberal" pretty much has only one: "freely, without stinting". For example, "he poured out the drinks with a liberal hand" means that he was generous with the amount that he poured out instead of limiting it to make sure he wouldn't run out of the beverage, and "he spread the butter liberally over the toast" means that he didn't hold back on how much butter he was spreading over the toast (and therefore he easily used enough to cover the entire thing).
Based on that sense of the word, it seems easy to me to envision it coming into use in politics: "let's be liberal with our resources, and use them without restraint where they will do the most good!".
And when placed in contrast to that policy attitude, it seems equally easy to envision "conservative" coming into use in opposition to it: "we should conserve our resources, not spend them recklessly!".
Looked at like that, both sides clearly have their arguments, and both sides can be respected for that view, depending on the details of the case at hand and how the view is argued - and it's even easy to switch between the two policies on a case-by-case basis, depending on the merits of the individual case.
Unfortunately, that sort of precise distinction between the positions to which those labels get applied has been long since lost...
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