Court Tosses Dennis Prager's Silly Lawsuit Against YouTube, Refuses His Request For Preliminary Injunction

from the insufficient-everything dept

You will recall that conservative commentator Dennis Prager sued YouTube late last year because he didn’t like how the site administered its “restricted mode” relating to several of his Prager University videos. The whole lawsuit was a mess to begin with, resting on Prager’s claims that YouTube violated federal and state laws by silencing his speech as a conservative and falsely advertising YouTube as place for free and open speech. At the same time that YouTube asked the court to toss this canard, Prager sought a preliminary injunction to keep YouTube from operating its own site as it saw fit. In support of its petition to dismiss the suit, YouTube’s Alice Wu offered the court a declaration that more or less showed every single one of Prager’s claims, especially his central claim of censorship of conservatives, to be as wrong as it possibly could be.

Now, mere weeks later, the court has agreed, penning a full-throated dismissal order that essentially takes Prager’s legal team to task for failing to make anything resembling a valid claim before the court. We’ll start with the court’s response to Prager’s First Amendment claims, which he makes by stating that YouTube is somehow a legally public forum, rather than a privately run website.

In their motion to dismiss, Defendants argue that Plaintiff’s complaint should be dismissed because (1) the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), bars all of Plaintiff’s causes of action except Plaintiff’s First Amendment claim, Mot. at 8–13; (2) the First Amendment bars all of Plaintiff’s causes of action, id. at 13–15; and (3) Plaintiff’s complaint fails to sufficiently plead any causes of action. Id. at 15–24. The Court finds that Plaintiff’s complaint should be dismissed for failure to state any federal claims, and therefore declines to address Defendants’ other arguments for dismissal. The Court first addresses Plaintiff’s federal causes of action, and then addresses together Plaintiff’s state law claims.

And further, on the matter of whether YouTube is a public forum under the jurisdiction of the First Amendment.

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a “video-sharing website” and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” functions that were traditionally “exclusively reserved to the State.”

That “very few” functions precedent is backed by caselaw and the court points out that none of it applies to an entity like YouTube or to the services it provides. The court therefore says this is not a valid claim. The court then moves on to Prager’s claims that YouTube violated the Lanham Act by falsely advertising the site as a platform for open and diverse speech.

Although the section of Plaintiff’s complaint dedicated to the Lanham Act does not identify any specific representations made by Defendants, see Compl. ¶¶ 115–19, Plaintiff’s opposition to Defendants’ motion to dismiss points to a handful of discrete alleged instances of false advertising by Defendants. Opp. at 24. In particular, Plaintiff identifies (1) YouTube’s suggestion that some of Plaintiff’s videos are “inappropriate”; (2) YouTube’s policies and guidelines for regulating video content; (3) YouTube’s statement that “voices matter” and that YouTube is “committed to fostering a community where everyone’s voice can be heard”; (4) YouTube’s statement on its “Official Blog” that YouTube’s “mission” is to “give people a voice” in a “place to express yourself” and in a “community where everyone’s voice can be heard,” and that YouTube is “one of the largest and most diverse collections of self-expression in history” that gives “people opportunities to share their voice and talent no matter where they are from or what their age or point of view”; and (5) Defendants’ representations in the terms of the agreements between Plaintiff and Defendants that Defendants seek to “help you grow,” “discover what works best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos.” Id. (citing Compl. ¶¶ 3, 11, 14, 28, 104, 112). The Court agrees with Defendants that Plaintiff has failed to allege sufficient facts to support a Lanham Act false advertising claim based on any of these representations.

The ruling goes on to dismantle each of the specific claims Prager eventually made in opposition to YouTube’s motion to dismiss. Frankly, it’s a pretty thorough drubbing of whoever put together Prager’s legal documents and claims.

Finally, after all of that, the court summarily dismisses Prager’s claims under California state law because all of Prager’s other claims have been dismissed earlier in the order. When the plaintiff in a case like this fails in his or her federal claims completely, the federal court typically refuses to consider the state claims. The court explains that’s what it is doing in this order. It subsequently refuses to issue the preliminary injunction, making Prager the loser on every attempt he made before the court.

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss Plaintiff’s federal causes of action with leave to amend, DISMISSES Plaintiff’s state law claims with leave to amend, and DENIES Plaintiff’s motion for a preliminary injunction without prejudice. Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day deadline or failure to cure the deficiencies identified herein will result in a dismissal with prejudice of the deficient claims. Plaintiff may not add new causes of action or parties without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15. IT IS SO ORDERED.

Now, Prager can go and write up a better lawsuit and try all of this again within 30 days if he chooses, but I wouldn’t recommend it. There is no YouTube liberal conspiracy against Prager and his conservative ilk. His facts are wrong, his insinuations are not true about whether liberals or conservatives have videos more often placed in the restricted mode, and if he insists on wasting the court’s time with any of this any further, then I will insist that we all agree that he’s a legal dunce.


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Comments on “Court Tosses Dennis Prager's Silly Lawsuit Against YouTube, Refuses His Request For Preliminary Injunction”

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Anonymous Coward says:

Is tough case to make because the Rights Of Persons are diffuse.

However, the tyrant George of England thought he had all the rights too.

Remember Facebook just last week? When The Public is forced to LOOK at what these giant corporations are ACTUALLY doing — not fall for the propaganda masnicks put out for hire — then situation can easily be reversed.

This notion of corporations being able to arbitrarily control the speech of “natural” persons is NOT going to last. It’s a de facto censorship regime.

Anonymous Coward says:

Re: Is tough case to make because the Rights Of Persons are diffuse.

What happened to facebook and what’s happening with Prager and youtube are two vastly different issues and no comparison can be made between the two.

In facebook’s case, they did bad stuff, possibly illegal bad stuff and are now paying the price.

In youtube’s case, they did neutral, legal stuff and pissed off one crackpot who doesn’t understand how the world and all this law stuff works. He sued and got appropriately smacked around for his stupidity.

Stephen T. Stone (profile) says:

Re: Is tough case to make because the Rights Of Persons are diffuse.

This notion of corporations being able to arbitrarily control the speech of "natural" persons is NOT going to last. It’s a de facto censorship regime.

And you are free to skirt around that regime by buying your own servers and hosting your own speech.

Anonymous Coward says:

Re: Re: Is tough case to make because the Rights Of Persons are diffuse.

And you are free to skirt around that regime by buying your own servers and hosting your own speech.

What, over free wifi? If you have to pay for internet service, you’ll be paying a corporation who can arbitrary control your speech. Plenty do; lots of providers won’t let people serve porn for example, or will respond to bogus takedowns. If you have to buy a domain, you’re beholden to the registrar and registry.

The best you can do is try to hide from your provider, maybe by making a Tor service, unless it really is a hyper-local thing you can host on unlicensed spectrum.

Anonymous Coward says:

Re: Re: Re: Is tough case to make because the Rights Of Persons are diffuse.

Have you ever stopped to thank that without those corporations you would be limited to speaking to the people who live near you, or that you could reach by walking. Post, printing and distribution, telephones and Internet all require an organization on a a scale that requires corporations or governments to implement them.

That One Guy (profile) says:

Re: Re: How about 'gluten free'?

Personally I find it funny that they, and others that use it, seem to think it matters. If I call myself ‘organic’ does that magically grant me special rights, including the ‘right’ to trample over the rights of others?

Settler? Agent? There’s got to be some magic name that allows one to get those special rights dammit!

Anonymous Coward says:

winning by losing

How many people actually believe that Prager was suing to win in court, rather than suing as a publicity stunt in order to draw public attention to YouTube’s censorship/meddling in (conservative) political content?

This guy is, let’s not forget, a professional activist/conspiracy-theorist, and this lawsuit served to put him and his ideas squarely “on the map” of public discussion.

Anoynomous says:

Re: winning by losing

It is amusing when you Leftists, who have been screeching for a year and a half now about “Russia collusion” with zero evidence, try to label others as “conspiracy theorists”.

You are losing the culture war and so you support the control and suppression of Freedom of Speech. What was that you said about Fascism, Commie?

Stephen T. Stone (profile) says:

Re: Re: Public Place

Those restrictions aside, a public-facing business can still kick someone out for going against any rule that does not run afoul of local/state/federal non-discrimination laws. McDonald’s, for example, is under no obligation to serve someone or let that someone stay in the building if that someone yells racial slurs at the staff.

An Onymous Coward (profile) says:

Re: Re: Re: Public Place

They don’t even have to yell racial slurs. McDonalds will kick you out if you haven’t bathed in weeks, yell incomprehensible babble, sit and talk to your cheeseburger for 4 hours or anything else they don’t like or that breaks their “rules”. They are under no obligation to provide anything to anyone despite being a “public business”.

The same is true of Google.

Abide by the rules or GTFO.

Anonymous Coward says:

Re: Re: Re: Public Place

Those restrictions aside, a public-facing business can still kick someone out for going against any rule that does not run afoul of local/state/federal non-discrimination laws.

Even that’s not true in California. And Youtube is in California, though thus far no court’s decided this applies to online forums.

Anonymous Coward says:

Re: Re: Re:2 Public Place

“On December 27, 2012, the Supreme Court of California reaffirmed Pruneyard but narrowed its applicability to the facts of the original case.[18] The entire court concurred in Associate Justice Joyce Kennard’s holding that Pruneyard applies only to “common areas” of shopping centers that are designed and furnished to encourage shoppers to linger, congregate, relax, or converse at leisure, but does not apply to any other open portions of shopping centers merely intended to facilitate the efficient movement of shoppers in and out of tenants, including concrete aprons and sidewalks which shoppers simply walk across as they move between parking lots and big-box stores. In other words, the court effectively immunized most (but not all) strip malls and shopping centers from Pruneyard, except for those with areas analogous to public gathering areas such as plazas, atriums, or food courts.”

kraker says:

Re: Re: Public Place

Notice, I said "should", not "can".

If a business is open to the general public (unlike say, a private club)

So, Walmart cannot discriminate, but a private club like Sams’ Club can? Why should that be?

there are some reasonable limits to that freedom.

Which I think is the crux of Prager’s argument. He does’t consider Youtube’s actions to be within "reasonable limits".

Anonymous Coward says:

Re: Re: Re: Public Place

Notice, I said "should", not "can".

So, just to be clear, your position is that, for instance, both Heart of Atlanta Motel (1964) and Katzenback v McClung (1964) should have come out the other way? You’re saying, perhaps, that Congress should not have passed the Civil Rights Act of 1964 (which is at issue in those two cases) ? Or that the Supreme Court should not have upheld it, once Congress enacted it?

Anonymous Coward says:

All this talk about “natural persons” is a smoke-screen for communist tools. This suit has nothing to do with the rights of the plaintiff–it’s all about the plaintiff trying to use government power to violate the rights of the defendant.

And once the government can control who is allowed on any private website based on the bureaucrats’ (or judges’) feelings, then any possibility of free speech on any platform is lost.

This is just another attempt at extortion, and if people lose all their basic human rights just because they create a website and open it up to public contributions, then no website will be able to host public discussions.

Anoynomous says:

Re: Re: then any possibility of free speech on any platform is lost.

The 1st Amendment only exists because it has been protected by the 2nd Amendment and the severe deterrent effect it provides. No other nation on this entire planet has the 1st Amendment Freedoms enshrined in the heart of the nation as America does, and that is because no nation on this entire planet has the 2nd Amendment Freedom enshrined in the heart of the nation as America does.

People in Europe are being sentenced to imprisonment or fines EVERY SINGLE DAY for social media posts on the reasoning of “offense”. You will learn, Commie.

Anonymous Coward says:

The difference between the Facebook and Youtube cases is like the difference between kicking a neighbor off your property for being drunk, and using your property as a meth lab.

Google was refusing to let someone (in their opinion, a jerk) use their own property for legal purposes that (in their opinion) harmed the value of that property–as is anyone’s right.

Facebook was using their own property for purposes that harmed other people’s lives–which nobody has the right to do.

The difference between Walmart and Sam’s is not relevant. Try going into either store and shouting abuse of any ethnic, political, or religious group: a security guard will show up, cordially inviting you to freely exercise your free-speech rights elsewhere.

Anoynomous says:

Re: Re:

No, they didn’t ban Prager. They put him in a limited status that prevents it from being viewed in places like public libraries and school and anywhere else that hides “limited state” videos.

He simply provides a conservative viewpoint that neo-Marxist clowns like yourself become apoplectic over, and so you support their political suppression of Prager.

Your claim that Prager is shouting abuse is pathetic and indicative of the intellectual coward that you are.

Wendy Cockcroft (user link) says:

Re: Re: Re:

RE: neo-Marxists

Citation? Here’s mine: Prager opposes same-sex marriage.[10] He has suggested that same-sex marriage will lead to polygamy and incest.[7][10] In 2014, he claimed that the “heterosexual AIDS” crisis was something “entirely manufactured by the Left.”[10] – Wikipedia

I’m conservative, not a right-wing nutjob.

Uriel-238 (profile) says:


The lean / spin / wingnuttery of PragerU has led me to create and post a warning regarding their videos:

PragerU is not a university or institution accredited by the US Department of Education, rather it is a media agency, organized as a 501(c)(3) non-profit business. PragerU is largely funded ($6+ million USD) by fossil fuel industrialists (and fracking enthusiasts) Dan and Farris Wilks, and topics discussed and opinions expressed on PragerU are specifically determined by the Wilks family and its financial interests. Each PragerU video costs $25,000-$30,000 USD to produce.

Anonymous Coward says:

YouTube has blocked over 80 PragerU videos as hate Speech; utterly ridiculous!!
Thankfully, free thinking people can check out the content for themselves at
Each are only 5-minutes in length. Narrated by Professors, business professionals, scientists, actors, and even liberals. Here’s one by known lefty, Dave Rubin.
I’mposting a link but if the link gets blocked here then go to the secure site of Prageru and simply search on the word ‘tolerant’.
To the open-minded people here, IMO, the only thing PragerU content might be guilty of is inspiring critical thinking.

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