Judge tosses PragerU’s censorship suit against YouTube . . . and it’s hard to argue with her

By Dan Calabrese —— Bio and Archives April 5, 2018

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This probably isn’t the news you want to hear about this, and it probably isn’t the take you want to hear either. PragerU, the conservative organization headed by Dennis Prager that produces educational videos with a conservative point of view, sued YouTube after YouTube restricted its videos in what appeared to be a very blatant case of viewpoint discrimination. The earnest young liberals at YouTube were putting the screws to PragerU because they didn’t like its conservative opinions, so they concocted pretexts for finding its content objectionable. U.S. District Judge Lucy Koh didn’t deny that YouTube had done this when tossing PragerU’s suit, but she tossed it anyway for one simple reason: YouTube is under no legal obligation to be fair:

A federal judge has thrown out a lawsuit filed by conservative nonprofit PragerU against Google, arguing that subsidiary YouTube did not violate First Amendment rights by partially censoring or limiting the organization’s YouTube videos. Presiding U.S. District Judge Lucy Koh ruled Monday that, inherently serving as a privacy company, Google has no obligation to equally apply its services, or in this case, its ostensible penalties. “Defendants do not appear to be at all like, for example, a private corporation that governs and operates all municipal functions for an entire town,” Koh wrote while referencing other cases involving the First Amendment, according to Courthouse News Service, “or one that has been given control over a previously public sidewalk or park, or one that has effectively been delegated the task of holding and administering public elections.” PragerU attempted to argue that although YouTube is a private entity, Google operates it as a public forum (perhaps due to its apparent ubiquitousness), and thus is liable to First Amendment oversight.

PragerU’s basic factual claim has been largely vindicated here, although its claim of a right to legal redress was not. And I think Judge Koh (an Obama appointee, for the record) got it right on the law. Yes, YouTube did discriminate against PragerU, applying the arbitrary judgment of some of its employees to determine that PragerU’s videos contained objectionable content. That’s a completely absurd notion. PragerU’s videos are very informative and well sourced. They deal with matters of public policy and history. The only thing the team at YouTube could possibly be worried about is that young people might be influenced by the conservative notions put forth in these videos.

But Judge Koh is correct that, as a private company, YouTube is under no obligation to provide access fairly if it doesn’t want to. It may operate in a manner similar to a public forum, but in fact it’s a private business that trades access to video distribution in exchange for the opportunity to monetize those videos through ad sales. In many ways I think this ruling is a useful one for conservatives. It crystalizes the fact that major tech companies who run new media are every bit as controlled by the left as the legacy media. We can’t sue our way to fairness. We either have to create our own media or we have to make our own content so compelling that the likes of Google and YouTube consider it a bad business decision not to include it. If YouTube had claimed to have exercised no discrimination, and Judge Koh had bought that claim, then this whole thing would have been a whitewash. As it is, I’d say it’s a useful demonstration of how the market works at the moment. The ascendant media of today is pretty much controlled by the same kinds of people as the dinosaurs whose demise we’re so happy to see. Nothing has really changed, except that this kind of thing makes it easier to demonstrate what the bias is and how it works. As far as I know, conservatives believe in free markets. This is how the free market is currently operating. Liberals have made investments in the technology, or at least have gained control of the dominant tech/media properties, and they control the game. Conservatives need to stop whining about how unfair everything is, and start making the current state of affairs impossible to maintain – if we can find a way.