Prager University Loses Another Of Its Silly Lawsuits Against YouTube Over Non-Existent 'Bias'

from the can-we-go-for-three? dept

Dennis Prager has been peddling complete and utter nonsense via his PragerU efforts for quite some time, and it expands beyond that too, because he's been peddling complete and utter nonsense in his still ongoing joke of a lawsuit against YouTube in which he tries to insist that YouTube is biased against conservatives because they put a small number of his videos in "restricted mode." This, despite the facts that (1) YouTube has no legal obligation to host his videos (for free!) in the first place, (2) less than 1.5% of people use "restricted mode" in the first place, (3) "Restricted mode" is to help parents block inappropriate content from kids, (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids, and (5) most importantly, YouTube showed that many other sites -- including those that people consider to be "liberal" had their videos put in restricted mode at a much higher rate than PragerU.

Prager still sued, and a court tossed out the lawsuit with ease last year -- though Prager and his true believers keep pointing to it as some sort of "proof" even though it's not. The lawsuit is still ongoing, sort of. They appealed the original ruling, and the appeals court recently heard arguments in it. I would be shocked if the original ruling wasn't affirmed, but you never know (crazy 9th circuit and all...).

However, there was a separate case filed as well, in California state court. That's because when Judge Koh tossed out the federal case, she focused on all the nonsense federal claims, and noted that she was also tossing out the state claims without analysis, because without the federal claims the case didn't belong in federal court. So, PragerU turned around and sued in state court as well.

And now the state court has tossed out that lawsuit as well. The ruling is pretty thorough and makes fairly quick work of calling out PragerU's ridiculous legal theories for what they are. I've seen more than a few people kicked off of social media platforms insist that California law is on their side, based on some odd readings of both the California Constitution and the so-called Unruh Act. Prager uses both in this case (even though it's not even for being kicked off a platform, just moderated). And the court doesn't buy it. It laughs off the idea that California's constitutional protections of free speech mean YouTube is required to host your nonsense:

it is apparent that Prager does not state a claim under the California Constitution. Prager contends that “YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest” and that defendants have opened their platform to the public by advertising its use for this purpose. However, Prager does not allege that it has been denied access to the core YouTube service. Rather, it urges that its access to “Restricted Mode” and YouTube’s advertising service has been restricted. Prager does not persuade the Court that these services are freely open to the public or are the functional equivalent of a traditional public forum like a town square or a central business district. Considering “the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants” (Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th at p. 119), it is clear that these services are nothing like a traditional public forum. “Restricted Mode” is an optional service that enables users to limit the content that they (or their children, patrons, or employees) view in order to avoid mature content. Limiting content is the very purpose of this service, and defendants do not give content creators unrestricted access to it or suggest that they will do so. The service exists to permit users to avoid the more open experience of the core YouTube service. Similarly, the use of YouTube’s advertising service is restricted to meet the preferences of advertisers.

And then of course there's Section 230 of the Communications Decency Act which the court rightly notes makes this entire case silly. What's interesting here is that the court actually does an analysis based on section (c)(2) of CDA 230. Nearly all CDA cases are based on section (c)(1), which is the part focused on correctly applying liability. (c)(2) is the part that directly talks about why sites should be free to moderate and not held liable for their own moderation choices. I've always found it odd that even in past moderation cases, courts have mostly still just relied on (c)(1) and ignored (c)(2) even though it has even more relevance.

Here, the court actually does look at (c)(2) and highlights how Prager misrepresents it. Here's Section 230(c)(2) in case you've forgotten it:

No provider or user of an interactive computer service shall be held liable on account of—

(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

PragerU tried to argue that putting its videos into restricted mode were not done "in good faith" as noted in part (A). First off, that's silly. There is no evidence that anything was not done in good faith. But, more to the point, the judge notes that PragerU is actually pretending that part (B) has a "good faith" requirement, as that's the most relevant section. And there is no good faith requirement there.

Rather than unilaterally restricting access to material on its core platform as contemplated by section 230(c)(2)(A)—which contains a “good faith” requirement— defendants allow users to voluntarily restrict access to material that defendants deem objectionable for the stated reason that, like the categories of material enumerated by the statute, it may be inappropriate for young or sensitive viewers.6 The Court views this as a critical difference between the two provisions...

PragerU really leaned hard on the "good faith" claim, but the court says "nope."

While the Court understands Prager’s argument that all three provisions of section 230 should have a good faith requirement, this argument is contrary to the plain language of the statute. (See Hassell v. Bird, supra, 5 Cal.5th at p. 540 [noting that Barrett v. Rosenthal, supra, 40 Cal.4th 33 voiced “qualms” that Zeran’s interpretation of section 230 provides blanket immunity for those who intentionally redistribute defamatory statements, but held “these concerns were of no legal consequence” where principles of statutory interpretation compelled a broad construction].) And while it is not this Court’s role to judge the wisdom of the policy embodied by section 230, there are good reasons to support it.

It goes on to explain that requiring good faith in all aspects of 230 protected moderation would force companies to regularly have to defend each and every editorial decision "on a case by case basis" and that would undermine the entire point of Section 230.

The court also laughs off PragerU's ridiculous argument that YouTube's content moderation practices remove immunity under (c)(1) because its moderation choices create liability (again, this would undermine the entire point of CDA 230).

In opposition to defendants’ demurrer, Prager cites a number of cases that affirm the principle applied in Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d 1157, which held that a service provider is not entitled to CDA immunity with regard to content it develops itself. However, this principle is inapposite here. Prager does not allege that defendants developed any of Prager’s content or appended any commentary to it— to the contrary, they allege the content became completely invisible in “Restricted Mode” or was simply demonetized. Applying CDA immunity under these circumstances does not conflict with Roommates.

A claim of "prior restraint" is also easily dismissed:

Finally, Prager contends that applying CDA immunity here would constitute an unlawful prior restraint on its speech in violation of the First Amendment. However, a federal court has already held that defendants’ conduct does not violate the First Amendment, and this Court agrees with that analysis for the reasons discussed in connection with its analysis of Prager’s claim under the California Constitution. Moreover, Prager does not allege that defendants prevented it from engaging in speech, even on their own platform—again, it contends that certain videos were excluded from “Restricted Mode” and/or were demonetized.

Lastly, Prager argued that this bit of moderation somehow was a "breach of the implied covenant of good faith and fair dealing under California's Unfair Competition Law (UCL)." Again, the court has a quick "nope" for the legal geniuses from PragerU:

Prager does not and cannot state a claim for breach of the implied covenant of good faith and fair dealing in light of the express provisions of YouTube’s Terms of Service, which provide that “YouTube reserves the right to remove Content without prior notice” and which also allow YouTube to “discontinue any aspect of the Service at any time.”... Similarly, YouTube’s AdSense Terms of Service reserve the right “to refuse or limit your access to the Services.”

The court also discusses another of PragerU's laughable theories -- that YouTube's public statements that "the same standards apply equally to all" makes their UCL argument valid. The court again explains how that makes no sense:

Prager does not allege that it suffered a loss of money or property as a result of its reliance on this statement. “There are innumerable ways in which economic injury from unfair competition may be shown,” including where a plaintiff “ha[s] a present or future property interest diminished.”... The “lost income, reduced viewership, and damage to brand, reputation, and goodwill” that Prager alleges... would certainly satisfy this requirement if there were a causal connection between Prager’s alleged reliance on defendants’ statement in participating in the YouTube service and these harms. However, these injuries cannot have resulted from Prager’s decision to use YouTube: they could only have been caused by YouTube’s later decisions to restrict and/or demonetize Prager’s content....

In short, as basically everyone has said all along, there is no legal argument here. There is nothing but nonsense. Just like PragerU itself.

Filed Under: bias, california, cda 230, dennis prager, section 230
Companies: google, prageru, youtube

Lawyers Who Sued YouTube For Anti-Conservative Bias Are Suing YouTube Again... For Anti-LGBTQ Bias

from the doesn't-that-debunk-your-first... dept

So, this is interesting. Every time we talk about alleged "anti-conservative" bias on various internet platforms, people who believe it's true (and who yell at us for daring to ask for evidence) tend to do two things: (1) cite Dennis Prager and his claims of YouTube's anti-conservative bias and (2) insist that there is no equivalent on the more liberal end of the spectrum that received similar treatment. We've discussed in great detail why both of those claims are laughably wrong, but we never quite expected the very same lawyers who filed Prager's failed lawsuit against YouTube -- the very same lawsuit that Prager himself just used on the pages of the Wall Street Journal to insist was proof of anti-conservative bias -- would now file a nearly identical complaint against YouTube... but on behalf of various LGBTQ+ YouTube channels.

In both cases, the plaintiffs are represented by Peter Obstler and Eric George of the law firm Browne George Ross law firm. And this new lawsuit has basically as much chance of succeeding as Prager's lawsuit did. Of course, it strikes me as rather ironic that this very lawsuit seems to undermine the basic claim of the Prager lawsuit, that the "only" reason why Prager's videos could have been put into restricted mode were because of the conservative viewpoints they represented. Yet, here, in this lawsuit, there are lots of claims about how Google/YouTube are purposefully discriminating against the LGBTQ+ community.

Since 2016, Defendants have exercised unfettered and absolute discretion to control, regulate, restrict, and manipulate the public video content and viewership of consumers on YouTube, based not on the content of the video, but Defendants’ subjective animus, dislike, or commercial bias with respect to the viewpoint and/or the identity of the content creator and/or the intended audience, including content that Defendants identify as being posted by or expressing a viewpoint of an LGBTQ+ user. In the exercise of that discretion, Defendants brand LGBTQ+ content as “shocking,” “offensive,” and/or “sexually explicit” not because of the video’s content, but either because the viewpoints expressed involve what a senior Google/YouTube content curator dubbed the “gay thing,” or because the content was posted by or viewed by YouTube Community members who identify as “gay.” At the same time, in direct violation of their Community Guidelines and monetization rules, Defendants use their absolute power and discretion over content regulation and monetization to promote, sponsor, and profit from violent, obscene, and threatening hate speech and online bullying directed at and against the LGBTQ+ Community, including the LGBTQ+ Plaintiffs.

This lawsuit is almost certainly headed for a rapid Section 230 dismissal. YouTube is allowed to moderate the content on its site however it sees fit, and that includes putting content into restricted mode (which is a voluntary setting for parents who want to restrict access of certain content to children, and is only used by less than 1.5% of YouTube's users) or to demonetize videos.

This should be fairly simple: YouTube does not owe these video makers a free platform, a free audience, or especially (as they appear to claim) free ability to monetize their videos. There are other options. Go post your videos to Vimeo or DailyMotion or lots of other places.

And, of course, the lawsuit misunderstands how content moderation works -- insisting that there are discriminatory reasons for videos being classified as they are, when the reality is that (1) it's not easy to classify videos, (2) there are lots of gray areas, and (3) even with all of that sometimes mistakes are made. But, nope, the lawsuit, and the plaintiffs, are sure it's because YouTube hates the gays. Incredibly, even though the lawsuit admits that YouTube has said in the past that its moderation system is not perfect and makes mistakes, the lawsuit still insists that it's deliberately targeting them.

The lawsuit itself has lots of other problems. It misrepresents a famously leaked internal Google report about the impossibility of getting content moderation to a point that makes everyone happy as evidence that Google is conducting a "bait and switch fraud" in which it advocates being a platform for free expression while actually supporting censorship. That is... not an intellectually honest description of, well, anything here. It's a blatant misrepresentation of the difficulty of managing any giant platform. The fact that YouTube wants to be a platform for expression does not obligate it to host -- and monetize -- any content for any audience.

Hilariously, the lawsuit actually quotes the filings from YouTube in the Prager case, pretending that the fact that restricted mode is opt-in and only used by less than 1.5% of YouTube's users is somehow evidence that helps them. Also hilarious, they claim that putting "anti-LGBTQ+ Hate Speech in the 'Up Next'" box is another tool to suppress LGBTQ+ views. Like, say, the PragerU video of Ben Shapiro that mocks "gay" people for having more say on college campuses than the "straight white male?" Or does that one not count? Or how about the PragerU video where Prager himself drones on about the importance of marriage in which he only discusses heterosexual marriage, and insists that a key reason why marriage is important is because "the women in [men's lives] spur them to greater creativity." Or maybe the PragerU video asking "why all the confusion" about "gender identity." Do those count?

The complaint also insists that some of their videos end up with anti-LGBTQ+ ads on them. This seems... internally in conflict. First these plaintiffs are demanding monetization, but now claiming they should also have a say in exactly what kinds of ads? And doesn't that go against the rest of this lawsuit that seems to insist that YouTube, by saying it's a platform for free expression, should never moderate anything?

The complaint gets worse. It directly tries to blame YouTube for YouTube commenters. Really.

One of the principal ways of gaining new viewers and subscribers on the YouTube platform is to generate favorable comments and/or healthy discussion in the “Comments Section,” which appears when videos are played. Favorable comments can generate thousands of additional views for a video. Comments regarding video content can generate even more views where the viewers have differing opinions and perspectives. Defendants allow, and refuse to filter out from the LGBTQ+ Plaintiffs’ channels and video comments sections those comments with obscene, homophobic, violent, threatening hate speech. Accordingly, viewers who play educational video content by QueerKidStuff designed for young viewers, supportive video content by BriaAndChrissy, and WonderWarriors designed for adolescents to young adults, and educational and supportive video content designed for adults by GNews! and uppercaseChase1, are exposed to vile hate speech when they view the videos uploaded by these LGBTQ+ Plaintiffs

So... YouTube, in the very same complaint we're told, is both liable for trying to prevent kids from seeing bad stuff and liable for failing to block kids from seeing bad stuff.

It's things like the above that made Section 230 necessary in the first place.

And, wtf is this?

The LGBTQ+ Plaintiffs strongly support the right of free Speech and expression for all Community Members. That right does not extend to Defendants’ promotion of anti-LGBTQ+ hate speech, speech which also violates Defendants’ own purportedly neutral content-based rules -- especially when Defendants unlawfully use those rules as pretext to censor, restrain, demonetize, silence, and squelch the engagement and distribution of LGBTQ+ video content or viewership. Such, actions unlawfully interfere with the express rights of LGBTQ+ Community Members to protect themselves by speaking out against hate and homophobia on a level playing field, as provided by Defendants’ representations and warranties that the rules apply equally to all on YouTube.

We support free speech... except for free speech that disagrees with our views, and how dare YouTube interfere with our right to speak out... while at the same time not blocking those we disagree with. Honestly, this entire lawsuit reads like a satire of what conservatives think "the left" believes.

Amusingly, the only reference to Section 230 -- which will be the basis under which this law is thrown out -- is to briefly (without any explanation) claim that this lawsuit will seek to answer the question of whether Section 230 itself represents unlawful prior restraint. I mean, this is not a serious legal complaint. This is a joke.

whether Defendants’ assertion of immunity from liability under the Community Decency Act 15 U.S.C. § 230 (c) (the “CDA”) with respect to any of the claims or allegations asserted by the LGBTQ+ Plaintiffs, the YouTube Community Class, and/or the LGBTQ+ Community Subclass operates as an unlawful prior restraint of speech in violation of the First Amendment of U.S. Constitution.

It goes on along these lines for many, many pages, but the most telling reason why the whole thing is bullshit? The plaintiffs are promoting the fact that they sued... on YouTube which is clearly censoring their speech.

Filed Under: anti-conservative bias, anti-lgbtq bias, bias, content moderation, dennis prager, section 230
Companies: youtube

Dennis Prager Peddles Complete Nonsense About 'Google Censorship' In The WSJ

from the this-is-bullshit dept

Another day, another major publication peddling complete and utter bullshit about big internet platforms. The latest is Dennis Prager, whose Wall Street Journal op-ed, Don't Let Google Get Away With Censorship (possibly paywalled) is so utterly full of wrong that it should maybe be a canonical example of how to bloviate wrongness. The entire premise is bullshit, with most of it focusing on the made up claim that YouTube is somehow censoring Prager's videos because of his "conservative" viewpoints. We've debunked Prager's arguments in great detail before, but apparently we need to do so again.

As a quick summary: a very small percentage (less than 12%) of Prager's videos are put into "restricted" mode. This does not demonetize them. It only means that the very small percentage of people who have opted-in to set up YouTube to not return videos that are inappropriate for children (which is less than 1.5% of YouTube's users) don't see that small percentage of YouTube videos in their search results. This includes videos with titles like: "Born to Hate Jews" and "Are 1 in 5 Women Raped at College?" which "includes an animated depiction of a nearly naked man lunging at a group of women." You might recognize why people at YouTube thought this might not be appropriate for children. But Prager insists that it's evidence of an anti-conservative bias.

Also, as we pointed out, many YouTube channels that come from sources that most would consider to be much more "liberal" find a much higher percentage of their videos put into the same restricted mode. This includes Stephen Colbert (13%), The Huffington Post (14%), The History Channel (?!?) (24%), Vox (28%), Sam Seder (36%), Buzzfeed, (40%), Democracy Now (46%), Last Week Tonight (50%), The Daily Show (55%) and The Young Turks at a whopping 71%. To argue that having fewer than 12% of your videos put into this restricted mode is evidence of anti-conservative censorship is pretty ridiculous, but this is Dennis Prager we're talking about, and he's up to the task:

But the issue is much more complex. I was asked to testify before the Senate Judiciary Committee on this matter for two reasons. One is the size of my website, Prager University, which gets a billion views a year, the majority of which come from viewers under 35. The more important reason is that YouTube, which is owned by Google, has at various times placed about 100 of our videos on its restricted list. That means any home, institution or individual using a filter to block pornography and violence cannot see those videos. Nor can any school or library.

Again, this makes the problem sound much bigger than it really is -- and it has nothing to do with anti-conservative bias.

Conservatives who defend Google or merely oppose any government interference argue that Google is a private company, and private companies are free to publish or not publish whatever they want. But Google, YouTube and Facebook choose not to be regarded as “publishers” because publishers are liable for what they publish and can be sued for libel.

This is, again, a total misrepresentation. There is no "choice." Google, YouTube, and Facebook don't get to "choose" if they're regarded as publishers or platforms -- the law says that they are not liable as publishers for third party content (for very good reason). Prager is misrepresenting Section 230 like sites have to make some sort of decision about what to be. But that's simply incorrect.

Congress gave Google and other social media an exemption from such lawsuits in 1996, with the Communications Decency Act. Section 230 of that bill provided these companies with immunity against defamation and some other legal claims. The clear intent of Section 230—the bargain Congress made with the tech companies—was to promote free speech while allowing companies to moderate indecent content without being classified as publishers.

Congress gave all internet websites that protection (not "exemption") from bogus lawsuits, because it recognized that without it, bogus lawsuits (the things that folks like Prager used to be against) would flood the docket, and we'd be much better off if lawsuits were properly targeted at those who violated the laws, rather than the tools and services that they used.

But Google and the others have violated this agreement. They want to operate under a double standard: censoring material that has no indecent content—that is, acting like publishers—while retaining the immunity of nonpublishers. When YouTube puts PragerU’s content on the restricted list, when Twitter bans conservative actor James Woods, they are no longer open forums.

Again, this is literally wrong. Section 230 was designed to encourage sites to create "family friendly" zones -- that is exactly why then Rep. Chris Cox wrote it, in response to the awful Stratton Oakmont v. Prodigy ruling. In that ruling, Prodigy, which heavily moderated its forums to be "family friendly," got held liable for content it did not moderate. Cox wanted to prevent that situation from happening, and thus created Section 230. Based on this history, YouTube's use of restricted mode is literally exactly why Cox passed the law, in order to encourage sites like YouTube to create more "family friendly" areas, so that kids don't end up seeing violent and sexual content, such as those portrayed in Prager's videos. There is no "double standard" here. There is no "violation" of the agreement. There is YouTube doing exactly what the law was intended to do, and a whiny Dennis Prager complaining about it and misrepresenting what has happened to his videos (and misrepresenting the law as well).

Richard Hanania, research fellow at the Saltzman Institute of War and Peace Studies at Columbia University, undertook a study of Twitter political bias and concluded: “My results make it difficult to take claims of political neutrality seriously. Of 22 prominent, politically active individuals who are known to have been suspended since 2005 and who expressed a preference in the 2016 U.S. presidential election, 21 supported Donald Trump.”

This is wrong. We thoroughly debunked this study earlier in the year. The "list" of Twitter accounts that Prager seems to think showed proof of anti-conservative bias included literal Nazis (the American Nazi Party was one of the accounts), as well as notorious trolls and hoaxers. And, of course, this also comes soon after this very same WSJ published an article it claimed was from a "conservative" ex-Googler who claimed he was fired for "whistleblowing" on anti-conservative bias, but who actually was engaged in trollish support for white supremacists.

Defenders of Google also argue that some left-wing sites have an even greater percentage of their videos on the restricted list. But this is not an apples-to-apples comparison. When left-wing sites are restricted it is because their videos contain expletives or material truly inappropriate for children, not because they are left-wing. PragerU videos do not contain expletives and are very suitable for children. Our videos are restricted only because they are conservative.

This is Prager's weak attempt to respond to the point that we've raised numerous times before (and did above) about all those other, left-leaning, sites finding even more of their videos in restricted mode. But, note that he doesn't actually respond to that point. He just insists that those other videos were properly put into the restricted mode list, while his videos were not (remember: some of his videos that were restricted, depicted violence and sexual content). And therefore it "must be" because he's a conservative. This is nonsense, and the WSJ should be ashamed for publishing it.

If the four major U.S. airlines announced they would not allow passengers carrying The Wall Street Journal to travel to some American cities, would any conservatives or libertarians defend the airlines’ right, as private companies, to do so?

Yes? I think many conservatives and libertarians would defend that? Just like they would defend PragerU publishing videos that are full of racist, bigoted nonsense. Because he has a right to spew ignorance. And others have the right to (a) respond to it or (b) not to carry it on their own platforms. But here, YouTube isn't even doing that. It's not removing videos. It's not demonetizing them. It's merely putting a very small percentage of videos onto a restricted list because it decides that those videos are inappropriate for children.

Also, Prager notably leaves out that the lawsuit that he filed over this whole thing was tossed out as the judge noted that Prager's argument was a complete non-starter. I guess Prager's next WSJ article will be about how the courts have an anti-conservative bias as well?

Filed Under: anti-conservative bias, bias, censorship, dennis prager, nonsense, section 230
Companies: google, wall street journal, youtube

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

from the insufficient-everything dept

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.

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

YouTube Shows Dennis Prager's Claim Of Discrimination Against Conservatives Is Laughable

from the takedown dept

You will recall that Dennis Prager, the conservative commentator who also runs a YouTube channel to inform his viewers of his perspective on a variety of topics, recently sued YouTube. The meat of Prager's claims is that YouTube is censoring some of his videos purely because he is a conservative -- with the clear implication being that YouTube is a liberal bastion of conservative-hating video hosting. Just to be clear, there is no real evidence for that. What there is evidence for is that YouTube is trying very hard to sort through its hilariously enormous trove of video content for objectionable material, and that it often does this quite badly. None of that amounts to, as Prager claims, a liberal conspiracy against some conservative guy.

While Prager is seeking a preliminary injunction against YouTube to keep it from administering its own site as it sees fit, YouTube is asking for the case to be dismissed outright. There are two claims at issue: first, that YouTube classifying some of his videos in its "restricted mode" amounts to YouTube censoring him and, second, that YouTube is doing this "censoring" for purely partisan political reasons. If you find yourself sympathetic to those claims, perhaps it's because you have heard them repeated often elsewhere, over and over again (or because you've seen Prager sending out fundraising notices making exactly these claims), then you really should read the declaration from Alice Wu, part of the Trust and Safety management team at YouTube, filed in the case last week. Wu directly takes on both of Prager's claims and dismantles them completely to the point that it's almost embarrassing for Prager.

We'll start with the claim that YouTube classifying some Prager videos for its restricted mode being a form of censorship. She notes first that the Prager's videos that were flagged for restricted mode were done so purely for its content and amounted to something like a "teen rating."

The appropriateness of the Teen ratings assigned to the PragerU videos listed above is clear from the videos themselves. To give a few specific examples: In a PragerU video entitled “Born to Hate Jews” the narrator discusses how he used to think Jews in Israel were engaged in genocide and violence against Muslims. https://www.youtube.com/watch? v=xCQEmeGfFmY. Another video entitled “Why isn’t Communism as hated as Nazism?” describes mass murders and other atrocities in Communist countries. https://www.youtube.com/ watch?time_continue=1&v=nUGkKKAogDs. Another video, entitled “Are 1 in 5 Women Raped at College?,” https://www.youtube.com/watch?v=K0mzqL50I-w, includes an animated depiction of a nearly naked man lunging at a group of women and discusses college rape culture and the level of consent that should be required to engage in sexual activity. A video titled “Are the Police Racist?” https://www.youtube.com/watch?v=UQCQFH5wOJo&t=213s, discusses whether law enforcement engages in systemic racial discrimination and includes animations of police officers and black men pointing guns at people. YouTube concluded that these and some other similar PragerU videos, which deal with sexual situations, mature subject matter, and violent imagery, do not meet the Restricted Mode guidelines, which are designed to meet the needs of users that have chosen a more limited YouTube viewing experience free from potentially mature content. Based on that, YouTube assigned those videos a “Teen” or higher rating, which keeps them available to anyone using YouTube’s general service, but not available to users who have chosen to activate Restricted Mode (unless and until those users turn off Restricted Mode).

That last parenthetical is exceptionally important here, because it hints at how absurd Prager's claim of censorship is. Restricted Mode is opt-in by the user. Completely. A person who enables Restricted Mode on YouTube is asking YouTube to classify videos for content in the exact way that it does. Prager's claim of censorship, or a plea for the right to speak, is actually a demand that individual users listen. No such right exists, of course. Keep in mind that all of Prager's videos appear in searches by anyone that does not have Restricted Mode turned on.

Next: less than 12% of Prager's videos have been flagged for Restricted Mode.

In other words, if the Elders of YouTube really are engaged in an anti-conservative conspiracy to censor Dennis Prager, they are doing an exceptionally poor job of it. Even more damning, the declaration includes a list of the percentages of videos put in "Restricted Mode" for some other popular YouTube channels. This includes videos from The Young Turks, Stephen Colbert, The Daily Show, Last Week Tonight with John Oliver, Vox.com, Democracy Now, Huffington Post and more. I try to stay away from actively classifying content with monikers as meaningless in modern times as "conservative" or "liberal" (if they don't describe themselves as such), but I'm fairly certain most of those folks don't line up with Prager's ideology. And, yet, they were given the same treatment as PragerU. In fact, many of them have a significantly higher percentage of videos in restricted mode. Last Week Tonight has had nearly half of its videos flagged for Restricted Mode compared with Prager's 12%. The Young Turks describes itself as "the leading news and politics show for young, progressive viewers" and it had nearly 71% of its videos put in restricted mode compared to PragerU's 12%.

Alas, I have yet to hear about the vast right wing conspiracy being carried out by YouTube against the left.

So, what's the deal here? Well, though we don't get into partisan politics here generally, we certainly are in the business of truth telling when it comes to things that happen on the internet. So here's a bit of truth: it is apparently fashionable in some circles to whine about censorship and free speech whenever their demand for open ears and access to other people's platforms are not handed over. But just because one particular platform doesn't think your content is appropriate for all audiences, it is not censorship. And, frankly, it appears that many of the people that are providing these platforms, along with those who use them, are supremely tired of this nonsense. There is no censorship. There is no conspiracy. There are just the same rules that apply to everyone. Sometimes they're applied poorly, but not because of partisan bias.

It's time for Prager to either stop whining and continue to enjoy the platform in YouTube that is not censoring him for being conservative, or he can go create his own video streaming platform if he thinks he can do it better.

Filed Under: alice wu, cda 230, dennis prager, discrimination, restricted mode
Companies: google, prageru, youtube

Chuck Johnson Sues Twitter, Copying Dennis Prager's Lawsuit Against YouTube

from the public-square dept

Last summer, we wrote about an important Supreme Court case, Packingham v. North Carolinia, which made the fairly important ruling that the internet was so central to everyday life that courts could not ban people from the internet, even if they were convicted of a horrific crime. It was an important ruling -- but almost immediately, some people worried that some would interpret the ruling in a way to suggest that online service providers, themselves, could not kick people off of their service. That's not what the ruling actually says, but it's possible to quote it out of context to suggest as much.

And, indeed, we've started to see such cases brought against internet companies. The case Dennis Prager brought against YouTube, for example, cites Packingham to argue that it's somehow unconstitutional to filter his videos with warning labels. And now we can add famed internet troll Chuck Johnson to the list, as he's filed a lawsuit against Twitter, long after the site permanently banned Johnson from using their platform.

As we noted with the Prager/YouTube case, it's unlikely this case will go anywhere. Courts have held out, repeatedly, that platforms have the right to operate however they want regarding letting people use their services or not (the big distinction with Packingham was that was the government denying individuals access to the internet, not private operators). And there is extensive case law around Section 230 of the CDA as well, which states in fairly plain language that sites not only can filter and moderate however they want without liability, but actually encourages them to do so. There is, of course, at least some amount of irony that it was conservatives who were complaining about "bad stuff" (mainly porn) online who pushed for incentives in the CDA to get internet services to censor via filtering... and now it's "conservative" commentators like Prager and Johnson, who are suing because those sites are filtering, as is explicitly encouraged by the law.

In short, I imagine that Johnson's lawsuit against Twitter will go about as well as his lawsuit against Gawker, which didn't go very well.

The arguments in Johnson's case are the same ridiculous arguments in the Prager case. And I mean that... they're almost verbatim. Here's from the first cause of action in the Prager case:

Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces.

In YouTube, Defendants created and maintain a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum. Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function by regulating free speech within a public forum.

And from the Johsnon case:

Article I, section 2 of the California Constitution protects the liberty of speech and association, especially in public, quasi-public, and limited public spaces....

In Twitter, Defendant created and maintains a public forum or its functional equivalent for the public to express and exchange views and ideas, or in the alternative at least a quasi- or limited public forum.

They're not identical, and each case fleshes out more specifics about the platform in question they're suing, but the arguments are remarkably similar (and, no, they're not using the same lawyers). Johnson's lawsuit gets particularly silly. You can read the whole thing yourself if you'd like, but it's based on the preposterous notion that Twitter has to allow everyone on their platform and can't kick people off. As with the Prager suit, this complaint makes strong reliance on the idea that Johnson was banned for his political views, rather than because he was a troll who regularly went on the attack, often accused of promoting false information or making trollishly outrageous claims.

But, even if he was banned for his political views (and, again, he wasn't), Twitter actually has the legal right to put in place just such a ban. It would be stupid and counterproductive -- which is why Twitter does not actually ban people over such things -- but it would be legal. Johnson's lawsuit even points out that Twitter's current terms of service state: "We may suspend or terminate your accounts or cease providing you with all or part of the Services at any time for any or no reason." And then immediately whines that they had "no valid business reason" for banning him. First off, that's not true. There were lots of valid business reasons for banning him -- in the form of lots of users complaining about his behavior and tons of people threatening to quit Twitter if the site didn't get rid of certain trolls.

Again, though, even that doesn't impact the legal analysis here. Twitter is within its clear legal rights to remove any user from its service.

Like with the Prager case, we expect the courts not to allow this case to go very far at all. And, unlike in the Packingham case, this really is a situation where if one social media site doesn't want you, there are lots of other alternatives. Johnson told Buzzfeed (who broke the news of the lawsuit) that this was an important First Amendment case:

“This is going to be a very serious case over the freedom of the internet,” Johnson told BuzzFeed News. “And whether people have the right to say what they mean and mean what they say.”

Except... that's not what the case is actually about. Johnson is free to say whatever he wants. He is not free to force private companies to host that speech. If there is any First Amendment argument here at all, it is on Twitter's side, in that the First Amendment gives it the right to present its own site the way it wants to -- and that includes kicking off people it feels are behaving badly.

Filed Under: cda 230, chuck johnson, dennis prager, first amendment, free speech, intermediary liability, platforms
Companies: twitter, youtube

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.

Filed Under: dennis prager, first amendment, free speech, injunction, videos
Companies: youtube

Dennis Prager Sues YouTube For Filtering His Videos In A Way He Doesn't Like

from the prageru-tube dept

Dennis Prager is the rather affable conservative radio host and commentator whose chief skill appears to be in presenting laughably simple answers to immeasurably complex questions. Whatever your politics, it should be fairly clear that he's of a certain mold that tends to see political opponent boogeymen around every corner, hiding under his bed, and defiling his breakfast cereal. Those types exist on both sides of the aisle, of course, but it's important to understand Prager's paranoia when digesting his lawsuit against YouTube over how the site is filtering the videos his organization creates.

PragerU was founded in 2011 by Dennis Prager, a prominent conservative writer and radio talk show host. The organization is a nonprofit that espouses conservative viewpoints on various issues by means of short, animated videos, which it posts on its own website, as well as its YouTube channel.

From the filing itself:

Google/YouTube have represented that their platforms and services are intended to effectuate the exercise free speech among the public. As applied to PragerU, Google/YouTube use their restricted mode filtering not to protect younger or sensitive viewers from 'inappropriate' video content, but as a political gag mechanism to silence PragerU.

Let's get the easy part of this out of the way. Section 230 of the Communications Decency Act clearly outlines that YouTube is not to be punished for its attempt to filter content. The most relevant section is:

(c)Protection for “Good Samaritan” blocking and screening of offensive material

(1)Treatment of publisher or speaker: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of—

(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

That pretty clearly states that service providers can filter as they please and are not open to retribution from those using their platforms who don't care for how the filtering is being done. Making the First Amendment claims, in light of that, is a strategy likely without much purchase.

But the filing is even more frustrating than that. In typical Prager fashion, the case against YouTube is laid out as one of a liberal conspiracy against a conservative non-profit. Reading through most of the filing, you would be forgiven for thinking that YouTube had an army of folks manning computers manually censoring nothing but conservative speech, almost certainly with copies of Karl Marx's greatest hits on the desk next to them. But then the filing notes, apparently as evidence for its claims:

PragerU is not the first video blogger or “vlogger” to be discriminated against by Google/YouTube because of the speaker’s perceived identity. On March 19, 2017, Google/YouTube publicly admitted that they improperly censored videos using their restricted mode filtering that were posted or produced by members of the LGBTQ community based on the identity and orientation of the speaker rather than the content of the video. In response to complaints from the LGBTQ community and other civil rights critics, Google/YouTube removed all restricted filtering on videos posted or produced by LGBTQ members and groups, and changed their policy, filtering algorithm, and manual review policies to ensure that videos posted by LGBTQ vloggers were not being censored solely because of the identity of the speaker.

While Prager makes much of how YouTube lifted the restrictions on the LGBTQ content, what he's actually demonstrating is the truth: YouTube sucks at filtering its content. While Prager has no First Amendment right to YouTube's soapbox, his own filing has stumbled upon the real problem and the likely reason that YouTube has been flagging some of his videos: filtering correctly is hard, if not impossible. Of course it is, particularly for YouTube, which deals with hours of content uploaded every minute. Who would expect any filtering mechanism put in place to not have collateral damage?

The truth is likely that the YouTube folks responding to complaints about filter-mishaps are quite busy because the site isn't very good at filtering content. And, yes, it sucks that Prager's content has these filtering restrictions put on them. Whatever you think of the man, his videos are not obscene.

But First Amendment violations and the output of a great liberal conspiracy they are not.

Filed Under: cda 230, dennis prager, filtering, lawsuit, youtube
Companies: google, prageru, youtube