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“Are the Police Racist?” “Why Don’t Feminists Fight for Muslim Women?” “Are 1 in 5 Women Raped at College?” “The Most Important Question About Abortion.”
These are just some of videos put on restricted status by YouTube. All come from Prager University, run by radio-talk-show host Dennis Prager, who in October filed a lawsuit against Google alleging censorship of conservatives. Now upping the ante, Prager demands a preliminary injunction that would prohibit YouTube from restricting viewer access to its videos absent evidence of graphic nudity, violence, profanity, obscene material, hate speech, or anything that would be considered “objectively” offensive.
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.’”
Of course, Google sees it differently.
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.
The CDA provides some immunity for online service providers who are publishing third-party content.
“Plaintiff’s claims seek to do exactly what Section 230(c)(1) forbids: impose liability on YouTube as a publisher of Plaintiff’s videos,” states the motion to dismiss (read here). “YouTube’s choices about whether to classify videos as ‘mature’ or otherwise sensitive, and whether ads should be displayed alongside a given video, all fall squarely within the functions protected under Section 230.”
Prager’s injunction brief (read here) instead argues that the CDA cannot preempt federal constitutional claims like a violation of the First Amendment.
But both sides waive the First Amendment flag.
“While Plaintiff’s Complaint invokes the First Amendment, it seeks to invert the protections that it provides,” writes Brian Willen, the Wilson Sonsini attorney representing Google. “Rather than allowing PragerU to compel a private party like YouTube to make certain videos available to all users, the First Amendment gives YouTube the freedom to decide whether and how to present content on its service. Applied here, the First Amendment protects Google from liability for the decisions it is alleged to have made to classify certain PragerU videos as unavailable in Restricted Mode or as ineligible to have advertisements run next to them on YouTube.”
Quintessentially, Google stresses again and again in its brief that it is a private platform and that it shouldn’t be compelled to do as Prager wishes.
“Such a ruling would cast doubt on a whole host of content-based regulations that YouTube and other private platforms routinely use to keep their services free of objectionable or offensive content—including pornography, hate speech, and graphic violence,” continues Google’s brief. “That would be directly contrary to Congressional policy, which is designed to encourage exactly such self-regulation, and inconsistent with the public interest, which benefits from the creation of online spaces that families and others can use without having to expose themselves to material they would rather avoid.”
Ironically, this lawsuit has flipped the typical script with a conservative voice nodding to net neutrality and essentially suggesting that a private enterprise be treated as a regulated public utility. Prager points to the ways that YouTube has held itself out as an open forum for speech and argues that these representations to the public consequentially mean that YouTube is the functional equivalent of a “public forum” run by a “state actor” requiring legal intervention.
“The Supreme Court has yet to definitively rule on the extent to which the First Amendment may govern speech on privately owned websites,” writes Peter Obstler, the attorney representing Prager who then points to how the Supreme Court recently invalidated a North Carolina statute making it a felony for a registered sex offender to access a social networking site. “Because social media websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard and allow a person with an Internet connection to become a town crier with a voice that resonates farther than it could from any soapbox, the U.S. Supreme Court has expressly admonished all courts to ‘exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.’ Defendants’ administration of YouTube, the world’s largest public forum in history for freedom of expression in video content and viewer interaction, warrants nothing less.”
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