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Dennis Prager Sues YouTube For Filtering His Videos In A Way He Doesn't Like

from the prageru-tube dept

Dennis Prager is the rather affable conservative radio host and commentator whose chief skill appears to be in presenting laughably simple answers to immeasurably complex questions. Whatever your politics, it should be fairly clear that he’s of a certain mold that tends to see political opponent boogeymen around every corner, hiding under his bed, and defiling his breakfast cereal. Those types exist on both sides of the aisle, of course, but it’s important to understand Prager’s paranoia when digesting his lawsuit against YouTube over how the site is filtering the videos his organization creates.

PragerU was founded in 2011 by Dennis Prager, a prominent conservative writer and radio talk show host. The organization is a nonprofit that espouses conservative viewpoints on various issues by means of short, animated videos, which it posts on its own website, as well as its YouTube channel.

From the filing itself:

Google/YouTube have represented that their platforms and services are intended to effectuate the exercise free speech among the public. As applied to PragerU, Google/YouTube use their restricted mode filtering not to protect younger or sensitive viewers from ‘inappropriate’ video content, but as a political gag mechanism to silence PragerU.

Let’s get the easy part of this out of the way. Section 230 of the Communications Decency Act clearly outlines that YouTube is not to be punished for its attempt to filter content. The most relevant section is:

(c)Protection for “Good Samaritan” blocking and screening of offensive material

(1)Treatment of publisher or speaker: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2)Civil liabilityNo provider or user of an interactive computer service shall be held liable on account of—

(A)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; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

That pretty clearly states that service providers can filter as they please and are not open to retribution from those using their platforms who don’t care for how the filtering is being done. Making the First Amendment claims, in light of that, is a strategy likely without much purchase.

But the filing is even more frustrating than that. In typical Prager fashion, the case against YouTube is laid out as one of a liberal conspiracy against a conservative non-profit. Reading through most of the filing, you would be forgiven for thinking that YouTube had an army of folks manning computers manually censoring nothing but conservative speech, almost certainly with copies of Karl Marx’s greatest hits on the desk next to them. But then the filing notes, apparently as evidence for its claims:

PragerU is not the first video blogger or “vlogger” to be discriminated against by Google/YouTube because of the speaker’s perceived identity. On March 19, 2017, Google/YouTube publicly admitted that they improperly censored videos using their restricted mode filtering that were posted or produced by members of the LGBTQ community based on the identity and orientation of the speaker rather than the content of the video. In response to complaints from the LGBTQ community and other civil rights critics, Google/YouTube removed all restricted filtering on videos posted or produced by LGBTQ members and groups, and changed their policy, filtering algorithm, and manual review policies to ensure that videos posted by LGBTQ vloggers were not being censored solely because of the identity of the speaker.

While Prager makes much of how YouTube lifted the restrictions on the LGBTQ content, what he’s actually demonstrating is the truth: YouTube sucks at filtering its content. While Prager has no First Amendment right to YouTube’s soapbox, his own filing has stumbled upon the real problem and the likely reason that YouTube has been flagging some of his videos: filtering correctly is hard, if not impossible. Of course it is, particularly for YouTube, which deals with hours of content uploaded every minute. Who would expect any filtering mechanism put in place to not have collateral damage?

The truth is likely that the YouTube folks responding to complaints about filter-mishaps are quite busy because the site isn’t very good at filtering content. And, yes, it sucks that Prager’s content has these filtering restrictions put on them. Whatever you think of the man, his videos are not obscene.

But First Amendment violations and the output of a great liberal conspiracy they are not.

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Companies: google, prageru, youtube

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Comments on “Dennis Prager Sues YouTube For Filtering His Videos In A Way He Doesn't Like”

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80 Comments
TKnarr (profile) says:

Re: Re:

And multiple non-conservative voices have been filtered this way as well. The fact-based conclusion is what’s stated above: YouTube’s filtering sucks. And it won’t ever not suck. The laws of physics and statistics are stacked against it.

I find his complaints amusing solely because it’s conservatives (specifically religious conservatives) who’ve been the primary voices asking for filtering because they don’t want their kids exposed to sex, violence, gambling, video games, non-traditional family structures, other religions, science, pretty much anything that doesn’t completely agree with the Bible (usually defined as the King James Bible or one of the variants derived from it).

Anonymous Coward says:

Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

First, Techdirt is a corporation: nothing “good” about it — to non-Fascists.

I think the word “good” revolts Techdirt so much that literally can’t see the KEY word in the law.

The law AS PLAINLY WRITTEN only shields “platforms” IF actions are good, meaning in public interest under common law. It’s clear to me that Youtube isn’t acting for “good” here.

Anonymous Coward says:

Re: Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

As usual, Techdirt’s position is that a mega-national corporate “platform” is empowered to restrict / remove the speech of “natural” persons any way for any or no reason. — Techdirt can’t seem to see ANY looming implications for free speech if that literally Fascist power is put fully in place. Perhaps Masnick and minions believe that they’re safe on the winning side. Or they’re just “useful idiots”. They’re certainly “good” corporatists, enabling a legal fiction over actual persons.

The Techdirt position is that a corporation can CENSOR YOU for any or no reason, and you’ve no recourse.

And Techdirt does so while prattling how it loves free speech!

Anonymous Coward says:

Re: Re: Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

>> “But First Amendment violations” — certainly are. How in the modern world do you expect persons to communicate if denied access to major “platforms”? Again, the contention is — as YOU state — that the speech is within common law and shouldn’t be suppressed. You LIE that it’s just a technical problem. You don’t know that, and the circumstances of this only happening to “conservatives” are the only evidence needed to prove it’s deliberate.

>>> “and the output of a great liberal conspiracy they are not.” — Well, there you’re lying yet right, because it’s NOT “liberal” but a corporation oppressing individuals, so technically Fascist.

Matthew Cline (profile) says:

Re: Re: Re: Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

Again, the contention is — as YOU state — that the speech is within common law and shouldn’t be suppressed.

When you say "that the speech is within common law", do you mean "it doesn’t violate any anti-obscenity laws"? Isn’t defamatory? What?

Please just be more specific when you’re talking about common law.

Stephen T. Stone (profile) says:

Re: Re: Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

As usual, Techdirt’s position is that a mega-national corporate "platform" is empowered to restrict / remove the speech of "natural" persons any way for any or no reason.

Funny, then, that this is the position taken by the laws of the land you so wish to ignore, Mister SovCit. Whose platform do you want to force into hosting your speech against their will?

JMT (profile) says:

Re: Re: Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

"The Techdirt position is that a corporation can CENSOR YOU for any or no reason, and you’ve no recourse."

Why don’t you entertain us with what you think that recourse is. If this is merely Techdirt’s position, and not actually well-established law, this should be pretty easy for you.

Anonymous Coward says:

Re: Techdirt keeps overlooking that Youtube is NOT a "Good Samaritan" nor acting in "good faith".

>> First, Techdirt is a corporation: nothing “good” about it — to non-Fascists.

I’m sure someone intended that to read “Youtube” — but it’s correct as is!

Techdirt IS a corporation, and it’s defending a larger corporation — one that just incidentally “supports” the “think tank” associated with Masnick / Techdirt.

So no correction needed, just elaboration.

Anonymous Coward says:

PragerU is awesome. Anyone confused about the Israel/”Palestinian” conflict should check out his take on it. There is no “offensive material” or anything considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” in the classic sense. There is no foul language, violence, lewd sexual content.. only conservative ideas.

Anonymous Coward says:

Re: Re: Re:

I’ve seen some that may have questionable things, but I’ll bite, which videos have inaccuracies in them?

(Serious question, I’m Canadian and don’t know everything about American history.)

There are some videos that looked perfectly fine, expressing what appeared to be opposite opinions to what sounded like American left-leaning political opinions.

Padpaw (profile) says:

The question I have is, has youtube always been censoring political videos/channels they dislike and people have just not been reporting it, or has it only started to happen in the last year or so, hence the numerous reports of youtube censoring videos for political speech?

If it’s the latter that would imply a political bias that has only come into being in the last year, hence would be a serious problem. Seems like a simple solution to that hypothetical problem would be to just remove whoever is in charge making biased choices.

To my limited knowledge I have only heard of youtube censoring people based on their political views in the last year, so my arguments are based on that belief.

Stephen T. Stone (profile) says:

Re: Re:

Prager can hardly complain about “liberal bias” at YouTube when that same platform gave the same treatment he complains about to hundreds of LGBT-themed videos that feature no truly provocative or “adult” content. Besides, people gaming YouTube algorithms via mass reportings probably has more to do with supposed “political censorship” than any direct action by YouTube higher-ups.

Anonymous Coward says:

Re: Re:

In the fallout of the first PewDiePie-scandal a lot of companies demanded to get their advertisement removed from “unwanted” content. Since that is high priority, Youtube introduced what appears to be an AI to accomodate those. That AI has been reckless and random in its judgements of content. At the same time governments around the world have been calling for a more active censorship of terror-related and pedophilic content and more, which also appears to be handled by a badly tuned AI.

I doubt the bias theory as liberal youtubers complain about the same thing, thus the reckless and random censorship. Youtube is afraid of losing their safe harbour and therefore fear making human inspection of content. So, the AIs have come to stay and any future inquiry will be a question of getting them tuned better…

It sucks and there are already a few cases running over the recklessness and randomness. But it doesn’t seem to have as much political bias. The concieved bias is more likely based on certain political views garnering more attention.

Dave Cortright (profile) says:

YouTube is not a public forum

IANAL, but the fact that YouTube is not a public forum means they can curate and moderate however they see fit, right? I mean all that other stuff about section 230 is nice and all, but shouldn’t it start and end with the fact that YouTube has the right to refuse service to anyone, just like restaurants?

Anonymous Coward says:

Re: Public accomodations [was YouTube is not a public forum]

…the right to refuse service to anyone, just like restaurants?

Boynton v Virginia (1960)

MR. JUSTICE BLACK delivered the opinion of the Court.

The basic question presented in this case is whether an interstate bus passenger is denied a federal statutory or constitutional right when a restaurant in a bus terminal used by the carrier along its route discriminates in serving food to the passenger solely because of his color. . . .

Thurgood Marshall argued the cause for petitioner.

Anonymous Coward says:

Re: Re: Public accomodations [was YouTube is not a public forum]

            …the right to refuse service to anyone, just like restaurants?

Boynton v Virginia (1960)

Katzenbach v McClung (1964)

This case was argued with No. 515, Heart of Atlanta Motel v United States, decided this date, in which we upheld the constitutional validity of Title II of the Civil Rights Act of 1964 against an attack by hotels, motels, and like establishments. This complaint for injunctive relief against appellants attacks the constitutionality of the Act as applied to a restaurant. . . .

Anonymous Coward says:

Re: YouTube is not a public forum

I think it’s become more complex than that. If 90% of the people that you desire to reach are on only one platform, and the platform censors you, doesn’t it greatly inhibit your reach?

If it’s as good as not getting the video out there at all with no further signal boosting, isn’t it effectively a kind of censorship?

It’s their right to do so, but a dick move in a situation like that.

Anonymous Coward says:

Re: Re: YouTube is not a public forum

If 90% of the people that you desire to reach are on only one platform…

If you’re trying to reach just ten people, and nine of them are on one platform, then that’s quite a bit different than 90% of everyone.

When one corporation controls 90% of an entire market, we ought to start thinking seriously about why § 2 Sherman Act has remained on the books since 1890 — and what it might stand for today.

Anonymous Coward says:

Re: Re: Re: YouTube is not a public forum

… why § 2 Sherman Act has remained on the books since 1890

From that same era in American history, the Interstate Commerce Act of 1887 —

Background of the act

The act was passed in response to rising public concern with the growing power and wealth of corporations, particularly railroads, during the late nineteenth century. . . .

Anonymous Coward says:

Re: Re: Re:2 YouTube is not a public forum

You can bring up all the unrelated statutes that you want, however the fact remains that google is a private corporation and no amount of hand waving will change the fact that they are allowed to pick and choose what videos are available on their service.

Anonymous Coward says:

Re: Re: Re:3 YouTube is not a public forum

You can bring up all the unrelated statutes that you want…

It’s not unrelated in this context.

Boynton v Virginia (1960), which I mentioned just a little bit earler, was decided based upon the then-in-force Interstate Commerce Act. As it stood then—

The Interstate Commerce Act, as we have said, uses language of the broadest type to bar discriminations of all kinds.

That 1960 case goes on to quote a section of that act, as then codified, whose language traces back to Section 3 of the 1887 Act.

That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.

Similar language is echoed again, within the Communications Act of 1934, as currently codified at 47 USC § 202(a).

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

Anonymous Coward says:

Re: Re: Re:5 YouTube is not a public forum

Good thing they aren’t a common carrier or they’d be in trouble.

The Telecommunication Act of 1996 did not directly amend the definition of “Common Carrier” in § 3(h) of the Communications Act of 1934. Textually, there are only stylistic differences between § 3(h) as originally enacted, and its current codification at 47 USC § 153(11).

From FCC v Midwest Video (1979) (sometimes referred to as Midwest Video II)—

A common-carrier service in the communications context [Note 10] is one that "makes a public offering to provide [communications facilities] whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing . . . ." [Citations].


[Note 10] Section 3 (h) defines "common carrier" as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy . . . ." Due to the circularity of the definition, resort must be had to court and agency pronouncements to ascertain the term’s meaning. [Citations].

(Bracketed “[communications facilities]” inserted in source.)

JEDIDIAH says:

Re: Re: Re:3 YouTube is not a public forum

Actually since they are a public venue and public venues have been declared spaces where you have a right to free speech, it’s not as obvious as you make it out to be.

The fact that other liberals are so eager to abandon a useful founding principle never ceases to fascinate me.

Dave Cortright (profile) says:

Re: Re: Re:4 YouTube is not a public forum

Citation needed.

I know there have been some cases of shopping malls being declared public venues, but then the precedent was stepped back in later rulings. And now it seems that—while a few states have passed more expansive free speech laws on private property—the federal government has not.
http://www.slate.com/articles/news_and_politics/explainer/2003/03/why_can_shopping_malls_limit_free_speech.html

Anonymous Coward says:

Re: Re: Re:5 Private corporations [was YouTube is not a public forum]

… opposed to a private corporation

The “Bell Operating Compan[ies]”, their successors and assigns, as defined in the Communications Act of 1934 as amended by the Telecommunications Act of 1996 (Pub Law 104-104), and as further amended and codified at 47 USC § 153(5)— you agree that they are private corporations?

The “Bell Operating Compan[ies]” are private corporations in the same —or related— sense that the Gulf Shipbuilding Corporation was characterized as a private corporation.

Certainly, their stock may or may not be publicly-held, but they are not governmentally-owned corporations. They are “private corporations” in the sense you are using the term?

Anonymous Coward says:

Surprised it wasn’t mentioned anywhere – but is Prager’s beef with YouTube based on the fact that they undid the censorship for the liberals but refused to do it for him? Seems like a glaring omission from the article, which seems bent on dismissing the lawsuit and poo-pooing the claims of bias.

If he tried to get his submissions unblocked (and it seems like everyone here agrees they shouldn’t be) then isn’t YouTube’s failure to treat him like the LGBTQ folks really a verifiable case of bias and censorship?

Dunno if this is the case or not, but it’s sloppy of the author to breeze past YouTube’s response BEFORE the lawsuit was filed… might shed a bit more light on the topic. Unless, of course, it was omitted on purpose.

John E Cressman (profile) says:

Don't know him but...

Google and Facebook are ultra left leaning companies and they make no secret of this, right down to rolling over on their bellies for Chinese censorship.

The fact that they treat him different than their liberal, left wing “comrades” should surprise absolutely no one.

The fact that they are a private company, means they can pretty much do whatever they want, including censor anyone for any reason.

Anonymous Coward says:

Re: Don't know him but...

The fact that they are a private company, means they can pretty much do whatever they want, including censor anyone for any reason.

Your conclusions do not follow from your premise.

Your first conclusion, that private companies can do “whatever they want”, is controverted by Article I, Section 8, Clause 3, which grants Congress power to regulate interstate and foreign commerce.

Your second conclusion, that all private companies may censor at their unrestrained will, is controverted by various provisions of the Communications Act of 1934, as currently amended, which is codified in Chapter 5 of Title 47.

Your conclusions do not follow from your premise.

 

Now, if you want to make a non-idiotic argument, then you should say that YouTube is an “Information Service” as that term is defined in 47 USC 153(24).

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