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A judge in Santa Clara, California, is set to hand Prager University its newest defeat in a years-long legal fight over how Google’s YouTube is allegedly violating the law by restricting videos that espouse conservative viewpoints. In advance of a hearing on Friday, Judge Brian C. Walsh issued a detailed tentative opinion that concluded that PragerU can’t carry claims based on the California Constitution.
PragerU, run by radio-talk-show host Dennis Prager, first brought claims back in 2017 in federal court. Objecting to how its videos were on lockdown while supposedly liberal ones —including Real Time with Bill Maher clips — received more favorable treatment, PragerU alleged that YouTube was violating the First Amendment. In March 2018, the lawsuit was rejected with the opinion that since YouTube isn’t a “public forum” run by a “state actor,” YouTube was within its discretion to regulate videos that had been uploaded to its website. Prager is now currently before the Ninth Circuit Court of Appeals with arguments that YouTube has become the functional equivalent of a public forum by touting how everyone would be free to express themselves and representing to video providers that its content-based rules and filtering would apply equal to all.
Meanwhile, PragerU also filed similar claims based on California’s laws.
On Thursday, just as the company sent around a truck across Silicon Valley playing its restricted videos on the side of the van, Judge Walsh made clear that he likely wasn’t going to depart from the federal judge’s ruling.
“Prager does not allege that it has been denied access to the core YouTube service,” states the tentative. “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.”
The judge explains that these services exist to allow users to avoid the more open experience of core YouTube service and to cater to the preferences of advertisers. Even if the judge were to regard YouTube at large, he says to recognize the platform as a public forum would mean a “dramatic expansion” of precedent.
Walsh also sees the claims as being barred under Section 230 of the Communications Decency Act, which in part, limits an interactive computer service’s liability for actions cleaning up material deemed objectionable.
“While Prager contends that section 230(c)(1) immunity should not be applied where a plaintiff alleges a service provider acted in bad faith or to stifle competition, it cites no persuasive authority adopting this interpretation,” writes the judge.
Walsh is also primed to throw out Prager’s separate claims that YouTube has breached the implied covenant of good faith and fair dealing by violating supposed promises and representations to those uploading videos. The judge says such a claim can’t stand in light of express provisions of YouTube’s Terms of Services, which provide that “YouTube reserves the right to remove Content without prior notice.”
As for how YouTube touts “four essential freedoms” to users on its forum (freedom of expression, freedom of information, freedom of opportunity, and freedom to belong), the judge doesn’t see this as supporting a viable claim of fraud under the state’s competition law. The judge writes, “[T]hese statements are non-actionable puffery.”
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