Google persuaded a federal appeals court on Wednesday to reject claims that YouTube illegally censors conservative content.
In a 3-0 decision that could apply to platforms such as Facebook, the 9th U.S. Circuit Court of Appeals in Seattle found that YouTube was not a public forum subject to First Amendment scrutiny by judges.
It upheld the dismissal of a lawsuit against Google and YouTube by Prager University, a conservative nonprofit run by radio talk show host Dennis Prager.
PragerU claimed that YouTube’s opposition to its political views led it to tag dozens of videos on such topics as abortion, gun rights, Islam and terrorism for its “Restricted Mode” setting, and block third parties from advertising on the videos.
Writing for the appeals court, however, Circuit Judge Margaret McKeown said YouTube was a private forum despite its “ubiquity” and public accessibility, and hosting videos did not make it a “state actor” for purposes of the First Amendment.
McKeown also dismissed PragerU’s false advertising claim, saying YouTube’s “braggadocio” about its commitment to free speech –such as “everyone deserves to have a voice, and [the] world is a better place when we listen, share and build community through our stories” — were merely opinions.
Dennis Prager recently made a case for government management of social media in the Wall Street Journal. Prager is a conservative so it might seem odd to find him plumping for government control of private businesses. But he is a part of a new conservatism that rejects the older tradition of laissez‐faire that informed the right. What could justify Big Government regulation for tech companies? Prager argues that the companies have a legal obligation to moderate their platforms without political bias. He thinks they are biased and thus fail to meet their obligation. But the companies have no such obligation and to be charitable, it is far from clear that they are biased against conservative content…
The law also empowers the platforms to restrict content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Prager notices the obscenity part, but somehow misses the words “otherwise objectionable.” If YouTube decided Prager’s videos were neither violent nor obscene but were “otherwise objectionable,” the company could restrict access to them. In other words, the law empowers YouTube to be biased against Prager if they wish. And Prager thinks they do have it in for him and other conservatives. As you might have guessed by now, there is lot less to this claim than meets the eye.
Consider what Prager himself tells us: YouTube now hosts 320 Prager University videos that get a billion views a year. Indeed, a new video goes up every week. Not exactly the Gulag is it? He complains that 56 of those 320 videos are on YouTube’s “restricted list” which means (according to Prager) “any home, institution or individual using a filter to block pornography and violence cannot see those videos. Nor can any school or library.” In other words, YouTube has “restricted access” to materials on its site its managers consider “otherwise objectionable.”
Was YouTube biased against Prager and other conservatives? Prager himself notes leftwing sites also ended up on the restricted list. But that’s different, he says, because their videos are violent or obscene while his are not. Prager fails to mention that videos from The History Channel are restricted at twice the rate of his films. Hardly a bastion of left‐wing vulgarity, The History Channel’s videos often discuss historical atrocities and totalitarian regimes. While these clips may be educational, Google seems to believe that the 1.5% of YouTube users who voluntarily opt‐in to restricted mode wish to avoid even educational discussions of atrocity. Dennis Prager’s video about the Ten Commandments is restricted for similar discussions of the Nazi’s Godless regime.
It is far from unreasonable to allow parents to decide how their children are taught about such horrors. A reasonable conservative might even applaud such support for the family. Who gets to decide whether left wing videos or historical documentaries are different than Prager’s videos? The law says YouTube gets to decide.