(Update: After publishing what’s below, Google came to us with comment. Here it is. That wasn’t so hard, right?)
Google has nothing to say yet about a lawsuit filed earlier this week that claims YouTube is violating the First Amendment by censoring conservative viewpoints.
The lawsuit comes from Prager University, run by radio-talk-show host Dennis Prager. According to the plaintiff, many of its “educational” videos have been put into “restricted mode.” Prager suspects there is no reasonable basis for this, other than viewpoint bias. The complaint filed in California federal court includes charts of restricted videos compared to unrestricted videos on “similar topics.” For example, Prager’s video titled “Are 1 in 5 women in college raped?” is on lockdown, while a Real Time With Bill Maher video about The Hunting Ground; an interview with former Vice President Joe Biden on how to end the campus rape crisis; and Lady Gaga singing about rape all can be seen by YouTube users.
We asked Google about the lawsuit. A representative responded, “No comment on this. We’ll let you know if this changes.”
We try not to read too much into silence. Especially from a defendant who has just been sued. After all, litigation is tricky, and everyone deserves time to investigate and muster a response. Still, a “no comment” days after the lawsuit was filed, especially from a company as big and sophisticated as Google, in the face of the allegation that the tech giant is discriminating against a good chunk of the country is at least somewhat worth exploring.
Google could easily have said, “We’re not censoring conservatives.”
And if Google wished to be more circumspect, it could have offered the cursory response employed by many defendants: “We believe this action is meritless.”
Google did neither.
We’re sure Google’s savvy legal and PR staff have reasons for withholding a fuller explanation of its system and averting the type of headline that would prompt conservatives to go nuts with speculation.
We’re also fairly certain that Google doesn’t see Prager’s lawsuit to be a threat — at least as a matter of law. Let’s discuss that.
The complaint filed in court isn’t the worst read. (Read here.) One of the lawyers behind it is Eric George, who once made The Hollywood Reporter’s “Power Lawyers” list and has represented the likes of Kim Kardashian and Michael Ovitz.
Still, to prevail on a claim that YouTube is violating the First Amendment of the U.S. Constitution, Prager will probably need to convince the judge that YouTube has transcended its private ownership to be a public forum with at least some guarantee of access. This type of First Amendment showdown is a bit trendy at the moment, though not even President Donald Trump would go so far as to argue that YouTube is a public forum regulated by the First Amendment. After all, check out Trump’s response to the lawsuit over the way he’s blocking people on Twitter: “[T]he premise of Plaintiffs’ First Amendment argument — that the President’s Twitter account is a ‘forum’ to which they have been denied access — is baseless,” his Justice Department wrote. “At most, the account is a channel for the President’s speech, and the requirement of viewpoint neutrality accordingly does not apply.”
Trump’s response also argued the judge “should resist Plaintiffs’ invitation to extend forum analysis to the President’s Twitter account solely based on the manner in which Twitter — a private company — has structured its website.”
When a judge gets around to analyzing Prager’s lawsuit against YouTube, it could be Google‘s First Amendment rights that could be under the real threat. That’s perhaps best articulated by the judge who wrote that “speech results from what a speaker chooses to say and what he chooses not to say. … The right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.”
There’s also Section 230 of the Communications Decency Act, which explicitly gives an ISP immunity from “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.”
In short, Google might not need any reason at all to restrict videos it chooses not to carry on its video-sharing site.
Still, Google has apparently come to the decision not to speak up about this. At least not yet. The company will certainly provide a response in court, but it is withholding comment to reporters and staying mum on the subject on its policy blog.
So why? If the reasoning isn’t legal, maybe it’s something else.
Does it believe that a comment will only inflame conservatives? Or might current Capitol Hill discussion of regulating online political advertising have something to do with the silence?
Google, of course, hasn’t provided an answer, but maybe some attention to its speechlessness will cure that. After all, perhaps it’s just that Google really hates conservatives.