Court Tosses Dennis Prager's Silly Lawsuit Against YouTube, Refuses His Request For Preliminary Injunction

from the insufficient-everything dept

Thu, Mar 29th 2018 1:23pm — Timothy Geigner

You will recall that conservative commentator Dennis Prager sued YouTube late last year because he didn't like how the site administered its "restricted mode" relating to several of his Prager University videos. The whole lawsuit was a mess to begin with, resting on Prager's claims that YouTube violated federal and state laws by silencing his speech as a conservative and falsely advertising YouTube as place for free and open speech. At the same time that YouTube asked the court to toss this canard, Prager sought a preliminary injunction to keep YouTube from operating its own site as it saw fit. In support of its petition to dismiss the suit, YouTube's Alice Wu offered the court a declaration that more or less showed every single one of Prager's claims, especially his central claim of censorship of conservatives, to be as wrong as it possibly could be.

Now, mere weeks later, the court has agreed, penning a full-throated dismissal order that essentially takes Prager's legal team to task for failing to make anything resembling a valid claim before the court. We'll start with the court's response to Prager's First Amendment claims, which he makes by stating that YouTube is somehow a legally public forum, rather than a privately run website.

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 first addresses Plaintiff’s federal causes of action, and then addresses together Plaintiff’s state law claims.

And further, on the matter of whether YouTube is a public forum under the jurisdiction of the First Amendment.

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.”

That "very few" functions precedent is backed by caselaw and the court points out that none of it applies to an entity like YouTube or to the services it provides. The court therefore says this is not a valid claim. The court then moves on to Prager's claims that YouTube violated the Lanham Act by falsely advertising the site as a platform for open and diverse speech.

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 ruling goes on to dismantle each of the specific claims Prager eventually made in opposition to YouTube's motion to dismiss. Frankly, it's a pretty thorough drubbing of whoever put together Prager's legal documents and claims.

Finally, after all of that, the court summarily dismisses Prager's claims under California state law because all of Prager's other claims have been dismissed earlier in the order. When the plaintiff in a case like this fails in his or her federal claims completely, the federal court typically refuses to consider the state claims. The court explains that's what it is doing in this order. It subsequently refuses to issue the preliminary injunction, making Prager the loser on every attempt he made before the court.

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s federal causes of action with leave to amend, DISMISSES Plaintiff’s state law claims with leave to amend, and DENIES Plaintiff’s motion for a preliminary injunction without prejudice. Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day deadline or failure to cure the deficiencies identified herein will result in a dismissal with prejudice of the deficient claims. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15. IT IS SO ORDERED.

Now, Prager can go and write up a better lawsuit and try all of this again within 30 days if he chooses, but I wouldn't recommend it. There is no YouTube liberal conspiracy against Prager and his conservative ilk. His facts are wrong, his insinuations are not true about whether liberals or conservatives have videos more often placed in the restricted mode, and if he insists on wasting the court's time with any of this any further, then I will insist that we all agree that he's a legal dunce.

IT IS SO ORDERED.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: cda 230, dennis prager, discrimination, first amendment, free speech, intermediary liability, public square, restricted, youtube
Companies: google, prageru, youtube

44 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

Anonymous Coward, 29 Mar 2018 @ 1:48pm

Is tough case to make because the Rights Of Persons are diffuse.
However, the tyrant George of England thought he had all the rights too.

Remember Facebook just last week? When The Public is forced to LOOK at what these giant corporations are ACTUALLY doing -- not fall for the propaganda masnicks put out for hire -- then situation can easily be reversed.

This notion of corporations being able to arbitrarily control the speech of "natural" persons is NOT going to last. It's a de facto censorship regime.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 1:52pm

Re: Is tough case to make because the Rights Of Persons are diffuse.
How do you see the keyboard to type with your head so far up your own ass?
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 1:54pm

winning by losing
How many people actually believe that Prager was suing to win in court, rather than suing as a publicity stunt in order to draw public attention to YouTube's censorship/meddling in (conservative) political content?

This guy is, let's not forget, a professional activist/conspiracy-theorist, and this lawsuit served to put him and his ideas squarely "on the map" of public discussion.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 1:58pm

Re: Is tough case to make because the Rights Of Persons are diffuse.
Unless you're arguing that anyone who doesn't have a YouTube account is unable to be heard, your argument doesn't pass the laugh test. If you are arguing that, it's a very funny joke and you should do standup.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 2:07pm

Re: winning by losing
And sadly, it will contribute to the pro regulation crowds on both sides.
[ link to this | view in thread ]
kraker, 29 Mar 2018 @ 2:11pm

Public Place
Youtube is no more a public place than, say, a privately owned restaurant or shopping mall. Private owners should have complete say over what goes on on their premises and who is allowed to be there and who isn't. Period.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 2:25pm

All this talk about "natural persons" is a smoke-screen for communist tools. This suit has nothing to do with the rights of the plaintiff--it's all about the plaintiff trying to use government power to violate the rights of the defendant.

And once the government can control who is allowed on any private website based on the bureaucrats' (or judges') feelings, then any possibility of free speech on any platform is lost.

This is just another attempt at extortion, and if people lose all their basic human rights just because they create a website and open it up to public contributions, then no website will be able to host public discussions.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 2:26pm

Re: winning by losing
Funny how those who complain about youtube censoring content also complain that youtube is not censoring content.
[ link to this | view in thread ]
Roger Strong (profile), 29 Mar 2018 @ 2:40pm

Re: Public Place
Not quite.

If a business is open to the general public (unlike say, a private club) then there are some reasonable limits to that freedom. Like not being allowed to refuse service based on skin color, etc.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 2:42pm

Re: Is tough case to make because the Rights Of Persons are diffuse.
What happened to facebook and what's happening with Prager and youtube are two vastly different issues and no comparison can be made between the two.

In facebook's case, they did bad stuff, possibly illegal bad stuff and are now paying the price.

In youtube's case, they did neutral, legal stuff and pissed off one crackpot who doesn't understand how the world and all this law stuff works. He sued and got appropriately smacked around for his stupidity.
[ link to this | view in thread ]
Stephen T. Stone (profile), 29 Mar 2018 @ 2:43pm

Re: Is tough case to make because the Rights Of Persons are diffuse.

This notion of corporations being able to arbitrarily control the speech of "natural" persons is NOT going to last. It's a de facto censorship regime.

And you are free to skirt around that regime by buying your own servers and hosting your own speech.
[ link to this | view in thread ]
Stephen T. Stone (profile), 29 Mar 2018 @ 2:47pm

Re: Re: Public Place
Those restrictions aside, a public-facing business can still kick someone out for going against any rule that does not run afoul of local/state/federal non-discrimination laws. McDonald’s, for example, is under no obligation to serve someone or let that someone stay in the building if that someone yells racial slurs at the staff.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 2:54pm

Re: Re: Is tough case to make because the Rights Of Persons are diffuse.
Touch typing...
[ link to this | view in thread ]
An Onymous Coward (profile), 29 Mar 2018 @ 3:00pm

Re: Re: Re: Public Place
They don't even have to yell racial slurs. McDonalds will kick you out if you haven't bathed in weeks, yell incomprehensible babble, sit and talk to your cheeseburger for 4 hours or anything else they don't like or that breaks their "rules". They are under no obligation to provide anything to anyone despite being a "public business".

The same is true of Google.

Abide by the rules or GTFO.
[ link to this | view in thread ]
kraker, 29 Mar 2018 @ 3:03pm

Re: Re: Public Place
Notice, I said "should", not "can".

If a business is open to the general public (unlike say, a private club)

So, Walmart cannot discriminate, but a private club like Sams' Club can? Why should that be?

there are some reasonable limits to that freedom.

Which I think is the crux of Prager's argument. He does't consider Youtube's actions to be within "reasonable limits".
[ link to this | view in thread ]
Lawrence D’Oliveiro, 29 Mar 2018 @ 3:10pm

Re: then any possibility of free speech on any platform is lost.
Maybe you should spend more time looking out for the First Amendment instead of the Second Amendment?
[ link to this | view in thread ]
Lawrence D’Oliveiro, 29 Mar 2018 @ 3:13pm

Re: corporations being able to arbitrarily control the speech o
Do you figure the Government should regulate them?
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 3:34pm

Re: Re: Re: Public Place

Notice, I said "should", not "can".

So, just to be clear, your position is that, for instance, both Heart of Atlanta Motel (1964) and Katzenback v McClung (1964) should have come out the other way? You're saying, perhaps, that Congress should not have passed the Civil Rights Act of 1964 (which is at issue in those two cases) ? Or that the Supreme Court should not have upheld it, once Congress enacted it?
[ link to this | view in thread ]
Stephen T. Stone (profile), 29 Mar 2018 @ 3:35pm

Re: Re: Re: Re: Public Place

McDonalds will kick you out if you haven't bathed in weeks, yell incomprehensible babble, sit and talk to your cheeseburger for 4 hours or anything else they don't like or that breaks their "rules".

Now now, how the POTUS chooses to spend time at McDonald’s is his business.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 4:29pm

The difference between the Facebook and Youtube cases is like the difference between kicking a neighbor off your property for being drunk, and using your property as a meth lab.

Google was refusing to let someone (in their opinion, a jerk) use their own property for legal purposes that (in their opinion) harmed the value of that property--as is anyone's right.

Facebook was using their own property for purposes that harmed other people's lives--which nobody has the right to do.

The difference between Walmart and Sam's is not relevant. Try going into either store and shouting abuse of any ethnic, political, or religious group: a security guard will show up, cordially inviting you to freely exercise your free-speech rights elsewhere.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 5:59pm

Re: Re: Is tough case to make because the Rights Of Persons are diffuse.

And you are free to skirt around that regime by buying your own servers and hosting your own speech.

What, over free wifi? If you have to pay for internet service, you'll be paying a corporation who can arbitrary control your speech. Plenty do; lots of providers won't let people serve porn for example, or will respond to bogus takedowns. If you have to buy a domain, you're beholden to the registrar and registry.

The best you can do is try to hide from your provider, maybe by making a Tor service, unless it really is a hyper-local thing you can host on unlicensed spectrum.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 6:05pm

Re: Re: Re: Public Place

Those restrictions aside, a public-facing business can still kick someone out for going against any rule that does not run afoul of local/state/federal non-discrimination laws.

Even that's not true in California. And Youtube is in California, though thus far no court's decided this applies to online forums.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 6:30pm

Re: Re: Re: Re: Public Place
"On December 27, 2012, the Supreme Court of California reaffirmed Pruneyard but narrowed its applicability to the facts of the original case.[18] The entire court concurred in Associate Justice Joyce Kennard's holding that Pruneyard applies only to "common areas" of shopping centers that are designed and furnished to encourage shoppers to linger, congregate, relax, or converse at leisure, but does not apply to any other open portions of shopping centers merely intended to facilitate the efficient movement of shoppers in and out of tenants, including concrete aprons and sidewalks which shoppers simply walk across as they move between parking lots and big-box stores. In other words, the court effectively immunized most (but not all) strip malls and shopping centers from Pruneyard, except for those with areas analogous to public gathering areas such as plazas, atriums, or food courts."
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 6:54pm

Re:
The funniest thing is that you still consider yourself to be "natural" person.

Again, now comes the part where we all throw back our heads and laugh. Ready?
[ link to this | view in thread ]
Anonymous Anonymous Coward (profile), 29 Mar 2018 @ 7:15pm

Re: Re: Re: Is tough case to make because the Rights Of Persons are diffuse.
With a Dvorak keyboard.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 7:36pm

Re: Re: Re: Re: Re: Public Place
Walmarts do have areas for eating, and sites like Youtube and Facebook definitely encourage "congregation", but yeah, California courts are aren't showing any eagerness to extend that ruling. Don't be surprised if someone tries anyway.
[ link to this | view in thread ]
Stephen T. Stone (profile), 29 Mar 2018 @ 9:25pm

Re: Re: Re: Is tough case to make because the Rights Of Persons are diffuse.
I never said it would be easy. But if you want to avoid “corporate control” of your speech, well, the hard way is your only choice.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2018 @ 10:07pm

Go ahead start the second american revolution, I dare you.
[ link to this | view in thread ]
Anonymous Coward, 30 Mar 2018 @ 3:28am

Re: Re: Re: Is tough case to make because the Rights Of Persons are diffuse.
Have you ever stopped to thank that without those corporations you would be limited to speaking to the people who live near you, or that you could reach by walking. Post, printing and distribution, telephones and Internet all require an organization on a a scale that requires corporations or governments to implement them.
[ link to this | view in thread ]
That One Guy (profile), 30 Mar 2018 @ 4:48pm

How about 'gluten free'?
Personally I find it funny that they, and others that use it, seem to think it matters. If I call myself 'organic' does that magically grant me special rights, including the 'right' to trample over the rights of others?

Settler? Agent? There's got to be some magic name that allows one to get those special rights dammit!
[ link to this | view in thread ]
Lawrence D’Oliveiro, 30 Mar 2018 @ 5:07pm

Re: without those corporations you would be limited to speaking
Just a note that the Internet was originally a project funded by the US Government.
[ link to this | view in thread ]
Anonymous Coward, 1 Apr 2018 @ 12:36pm

Re: How about 'gluten free'?
"If I call myself 'organic' does that magically grant me special rights, including the 'right' to trample over the rights of others?"

I'm carbon-based dammit and you will respect me!
[ link to this | view in thread ]
Anonymous Coward, 1 Apr 2018 @ 8:25pm

Re: Re:
Ready!

Hahahahahahahaha...
[ link to this | view in thread ]
Anoynomous, 3 Apr 2018 @ 6:27am

Re: winning by losing
It is amusing when you Leftists, who have been screeching for a year and a half now about "Russia collusion" with zero evidence, try to label others as "conspiracy theorists".

You are losing the culture war and so you support the control and suppression of Freedom of Speech. What was that you said about Fascism, Commie?
[ link to this | view in thread ]
Anoynomous, 3 Apr 2018 @ 6:27am

Re: Re: winning by losing
That isn't a thing, in regards to Prager or the like.
[ link to this | view in thread ]
Anoynomous, 3 Apr 2018 @ 6:29am

Re: Re: Re: Re: Public Place
Try again without the "so what you're saying is", Cathy Newman. Haven't you learned your lesson, yet?
[ link to this | view in thread ]
Anoynomous, 3 Apr 2018 @ 6:32am

Re: Re: then any possibility of free speech on any platform is lost.
The 1st Amendment only exists because it has been protected by the 2nd Amendment and the severe deterrent effect it provides. No other nation on this entire planet has the 1st Amendment Freedoms enshrined in the heart of the nation as America does, and that is because no nation on this entire planet has the 2nd Amendment Freedom enshrined in the heart of the nation as America does.

People in Europe are being sentenced to imprisonment or fines EVERY SINGLE DAY for social media posts on the reasoning of "offense". You will learn, Commie.
[ link to this | view in thread ]
Anoynomous, 3 Apr 2018 @ 6:38am

Re:
No, they didn't ban Prager. They put him in a limited status that prevents it from being viewed in places like public libraries and school and anywhere else that hides "limited state" videos.

He simply provides a conservative viewpoint that neo-Marxist clowns like yourself become apoplectic over, and so you support their political suppression of Prager.

Your claim that Prager is shouting abuse is pathetic and indicative of the intellectual coward that you are.
[ link to this | view in thread ]
Anonymous Coward, 3 Apr 2018 @ 8:12am

Re: Re: Re: Re: Re: Public Place

Try again…

This isn't a deposition.

If it was a deposition, after Kraker paused to give you time to state your objection, you would say, “Object to form.” Then you would instruct Kraker, “You may answer the question.”

But it's not a deposition. It's supposed to be a conversation.
[ link to this | view in thread ]
Wendy Cockcroft, 4 Apr 2018 @ 2:41am

Re: Re: winning by losing
Where "Leftists" means "those who disagree with me."
[ link to this | view in thread ]
Wendy Cockcroft, 4 Apr 2018 @ 2:45am

Re: Re:
RE: neo-Marxists

Citation? Here's mine: Prager opposes same-sex marriage.[10] He has suggested that same-sex marriage will lead to polygamy and incest.[7][10] In 2014, he claimed that the “heterosexual AIDS” crisis was something “entirely manufactured by the Left.”[10] - Wikipedia

I'm conservative, not a right-wing nutjob.
[ link to this | view in thread ]
Uriel-238 (profile), 31 Aug 2018 @ 11:10am

Dvorak keyboard
The topology suggests it's a Klein keyboard.
[ link to this | view in thread ]
Uriel-238 (profile), 31 Aug 2018 @ 11:13am

PragerU
The lean / spin / wingnuttery of PragerU has led me to create and post a warning regarding their videos:

PragerU is not a university or institution accredited by the US Department of Education, rather it is a media agency, organized as a 501(c)(3) non-profit business. PragerU is largely funded ($6+ million USD) by fossil fuel industrialists (and fracking enthusiasts) Dan and Farris Wilks, and topics discussed and opinions expressed on PragerU are specifically determined by the Wilks family and its financial interests. Each PragerU video costs $25,000-$30,000 USD to produce.
[ link to this | view in thread ]
Anonymous Coward, 12 Oct 2018 @ 4:06pm

YouTube has blocked over 80 PragerU videos as hate Speech; utterly ridiculous!! Thankfully, free thinking people can check out the content for themselves at www.PragerU.com Each are only 5-minutes in length. Narrated by Professors, business professionals, scientists, actors, and even liberals. Here's one by known lefty, Dave Rubin. https://www.prageru.com/videos/so-you-think-youre-tolerant I'mposting a link but if the link gets blocked here then go to the secure site of Prageru and simply search on the word 'tolerant'. To the open-minded people here, IMO, the only thing PragerU content might be guilty of is inspiring critical thinking.
[ link to this | view in thread ]