Prager University Loses Another Of Its Silly Lawsuits Against YouTube Over Non-Existent 'Bias'

from the can-we-go-for-three? dept

Dennis Prager has been peddling complete and utter nonsense via his PragerU efforts for quite some time, and it expands beyond that too, because he's been peddling complete and utter nonsense in his still ongoing joke of a lawsuit against YouTube in which he tries to insist that YouTube is biased against conservatives because they put a small number of his videos in "restricted mode." This, despite the facts that (1) YouTube has no legal obligation to host his videos (for free!) in the first place, (2) less than 1.5% of people use "restricted mode" in the first place, (3) "Restricted mode" is to help parents block inappropriate content from kids, (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids, and (5) most importantly, YouTube showed that many other sites -- including those that people consider to be "liberal" had their videos put in restricted mode at a much higher rate than PragerU.

Prager still sued, and a court tossed out the lawsuit with ease last year -- though Prager and his true believers keep pointing to it as some sort of "proof" even though it's not. The lawsuit is still ongoing, sort of. They appealed the original ruling, and the appeals court recently heard arguments in it. I would be shocked if the original ruling wasn't affirmed, but you never know (crazy 9th circuit and all...).

However, there was a separate case filed as well, in California state court. That's because when Judge Koh tossed out the federal case, she focused on all the nonsense federal claims, and noted that she was also tossing out the state claims without analysis, because without the federal claims the case didn't belong in federal court. So, PragerU turned around and sued in state court as well.

And now the state court has tossed out that lawsuit as well. The ruling is pretty thorough and makes fairly quick work of calling out PragerU's ridiculous legal theories for what they are. I've seen more than a few people kicked off of social media platforms insist that California law is on their side, based on some odd readings of both the California Constitution and the so-called Unruh Act. Prager uses both in this case (even though it's not even for being kicked off a platform, just moderated). And the court doesn't buy it. It laughs off the idea that California's constitutional protections of free speech mean YouTube is required to host your nonsense:

it is apparent that Prager does not state a claim under the California Constitution. Prager contends that “YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest” and that defendants have opened their platform to the public by advertising its use for this purpose. However, Prager does not allege that it has been denied access to the core YouTube service. Rather, it urges that its access to “Restricted Mode” and YouTube’s advertising service has been restricted. Prager does not persuade the Court that these services are freely open to the public or are the functional equivalent of a traditional public forum like a town square or a central business district. Considering “the nature, purpose, and primary use of the property; the extent and nature of the public invitation to use the property; and the relationship between the ideas sought to be presented and the purpose of the property’s occupants” (Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th at p. 119), it is clear that these services are nothing like a traditional public forum. “Restricted Mode” is an optional service that enables users to limit the content that they (or their children, patrons, or employees) view in order to avoid mature content. Limiting content is the very purpose of this service, and defendants do not give content creators unrestricted access to it or suggest that they will do so. The service exists to permit users to avoid the more open experience of the core YouTube service. Similarly, the use of YouTube’s advertising service is restricted to meet the preferences of advertisers.

And then of course there's Section 230 of the Communications Decency Act which the court rightly notes makes this entire case silly. What's interesting here is that the court actually does an analysis based on section (c)(2) of CDA 230. Nearly all CDA cases are based on section (c)(1), which is the part focused on correctly applying liability. (c)(2) is the part that directly talks about why sites should be free to moderate and not held liable for their own moderation choices. I've always found it odd that even in past moderation cases, courts have mostly still just relied on (c)(1) and ignored (c)(2) even though it has even more relevance.

Here, the court actually does look at (c)(2) and highlights how Prager misrepresents it. Here's Section 230(c)(2) in case you've forgotten it:

No 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)

PragerU tried to argue that putting its videos into restricted mode were not done "in good faith" as noted in part (A). First off, that's silly. There is no evidence that anything was not done in good faith. But, more to the point, the judge notes that PragerU is actually pretending that part (B) has a "good faith" requirement, as that's the most relevant section. And there is no good faith requirement there.

Rather than unilaterally restricting access to material on its core platform as contemplated by section 230(c)(2)(A)—which contains a “good faith” requirement— defendants allow users to voluntarily restrict access to material that defendants deem objectionable for the stated reason that, like the categories of material enumerated by the statute, it may be inappropriate for young or sensitive viewers.6 The Court views this as a critical difference between the two provisions...

PragerU really leaned hard on the "good faith" claim, but the court says "nope."

While the Court understands Prager’s argument that all three provisions of section 230 should have a good faith requirement, this argument is contrary to the plain language of the statute. (See Hassell v. Bird, supra, 5 Cal.5th at p. 540 [noting that Barrett v. Rosenthal, supra, 40 Cal.4th 33 voiced “qualms” that Zeran’s interpretation of section 230 provides blanket immunity for those who intentionally redistribute defamatory statements, but held “these concerns were of no legal consequence” where principles of statutory interpretation compelled a broad construction].) And while it is not this Court’s role to judge the wisdom of the policy embodied by section 230, there are good reasons to support it.

It goes on to explain that requiring good faith in all aspects of 230 protected moderation would force companies to regularly have to defend each and every editorial decision "on a case by case basis" and that would undermine the entire point of Section 230.

The court also laughs off PragerU's ridiculous argument that YouTube's content moderation practices remove immunity under (c)(1) because its moderation choices create liability (again, this would undermine the entire point of CDA 230).

In opposition to defendants’ demurrer, Prager cites a number of cases that affirm the principle applied in Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, supra, 521 F.3d 1157, which held that a service provider is not entitled to CDA immunity with regard to content it develops itself. However, this principle is inapposite here. Prager does not allege that defendants developed any of Prager’s content or appended any commentary to it— to the contrary, they allege the content became completely invisible in “Restricted Mode” or was simply demonetized. Applying CDA immunity under these circumstances does not conflict with Roommates.

A claim of "prior restraint" is also easily dismissed:

Finally, Prager contends that applying CDA immunity here would constitute an unlawful prior restraint on its speech in violation of the First Amendment. However, a federal court has already held that defendants’ conduct does not violate the First Amendment, and this Court agrees with that analysis for the reasons discussed in connection with its analysis of Prager’s claim under the California Constitution. Moreover, Prager does not allege that defendants prevented it from engaging in speech, even on their own platform—again, it contends that certain videos were excluded from “Restricted Mode” and/or were demonetized.

Lastly, Prager argued that this bit of moderation somehow was a "breach of the implied covenant of good faith and fair dealing under California's Unfair Competition Law (UCL)." Again, the court has a quick "nope" for the legal geniuses from PragerU:

Prager does not and cannot state a claim for breach of the implied covenant of good faith and fair dealing in light of the express provisions of YouTube’s Terms of Service, which provide that “YouTube reserves the right to remove Content without prior notice” and which also allow YouTube to “discontinue any aspect of the Service at any time.”... Similarly, YouTube’s AdSense Terms of Service reserve the right “to refuse or limit your access to the Services.”

The court also discusses another of PragerU's laughable theories -- that YouTube's public statements that "the same standards apply equally to all" makes their UCL argument valid. The court again explains how that makes no sense:

Prager does not allege that it suffered a loss of money or property as a result of its reliance on this statement. “There are innumerable ways in which economic injury from unfair competition may be shown,” including where a plaintiff “ha[s] a present or future property interest diminished.”... The “lost income, reduced viewership, and damage to brand, reputation, and goodwill” that Prager alleges... would certainly satisfy this requirement if there were a causal connection between Prager’s alleged reliance on defendants’ statement in participating in the YouTube service and these harms. However, these injuries cannot have resulted from Prager’s decision to use YouTube: they could only have been caused by YouTube’s later decisions to restrict and/or demonetize Prager’s content....

In short, as basically everyone has said all along, there is no legal argument here. There is nothing but nonsense. Just like PragerU itself.

Filed Under: bias, california, cda 230, dennis prager, section 230
Companies: google, prageru, youtube


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  • icon
    techflaws (profile), 4 Nov 2019 @ 12:16pm

    Just check out the latest Real Time with Bill Maher where he's making a total ass of himself claiming (among other things) that the facts show there was no quid pro quo with Trump and the Ukraine.

    Unfortunately Baher comes off as an antivaxer asshat himself claiming "we know nothing" when it comes to vaccinces just because scientists have been wrong in the past.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2019 @ 12:16pm

    Prager University is not a University - LOL

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 4 Nov 2019 @ 12:17pm

    Think of the Children!

    (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids

    Prager is also suing YouTube for not doing enough to protect children for harmful content just to make things interesting!! ;)

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Zof (profile), 4 Nov 2019 @ 12:42pm

    Thankfully there's no bias here

    cough

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2019 @ 1:28pm

    It seems contradictory to argue that YouTube is both a public square and YouTube should be forced to let you monetize your videos. There's no obligation to be paid for making your free speech public in a public forum.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2019 @ 2:33pm

    If I were in charge over at YouTube I'd ban Prager from the platform entirely simply for having sued me. Pissing on the shoes of those doing you a favor is never a good way to continue getting favors from those people.

    These RWNJs like to talk about liberal entitlement without recognizing their own.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    David Longfellow, 4 Nov 2019 @ 3:07pm

    Definition

    Definition of "utter nonsense": Anything that leftists don't religiously believe in.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 4 Nov 2019 @ 3:17pm

      Re: Definition

      It's not a right vs left thing you know, but your definition is the one that some dumb people use, smart people know that utter nonsense are mostly spoken by dumb people.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2019 @ 3:18pm

      Re: Definition

      That’s honestly the best you got bro?

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 4 Nov 2019 @ 3:27pm

      Re: Definition

      Definition of "utter nonsense": Anything that leftists don't religiously believe in.

      No. The definition of "utter nonsense" is "utter nonsense." Like your comment. That's very much "utter nonsense."

      Remember when you used to pretend that facts don't care about your feelings? Well, the facts show that there's no anti-conservative bias going on and the facts of the law say that even if there were (and, remember, there are not), that's totally YouTube's call. But, of course, the Prager-ites, who pretend to be against government intervention and in favor of a free market... get their panties in a bunch and go scurrying to the government when they can't actually hack it in the free market and a company makes perfectly reasonable moderation choices concerning their content.

      reply to this | link to this | view in chronology ]

      • identicon
        Tyler H, 7 Nov 2019 @ 6:06pm

        Re: Re: Definition

        Honestly, Mike, I think you sound ignorant. You constantly frame your arguments with an overwhelmingly heavy bias that I can't even read your story without it feeling like a diss on conservatives. It doesn't seem like you listened to the other side of the argument at all; merely, you combed through it looking for things to ridicule. It's one thing to write an op-ed, going through both sides of an argument and analyzing all the FACTS of a story to draw your personal opinion, but it's an entirely different thing when you throw insults around use your words to humiliate and/or bring down those you disagree with purely because you disagree. I think this story is a joke. I did appreciate that you included official court quotes, for that is something that many heavily biased sources forget to do. There are parts of this article that I'm not sure I agree on but at least you took some effort in procuring evidence. However, you often state your opinion as fact and that's not how you prove a point. I want to add two important points to this discussion so that there is more knowledge on the table, rather than biased BS. First, the whole problem with the "Restricted Content" being restricted is because it isn't being used properly. There are no vulgar scenes to censor and every video is either a calm, explanation of a political viewpoint or a history video. One video Prager U cited, their video on the Ten Commandments, was purely about the information on the topic, nothing violent or pornographic to filter. As I said, you have failed to try to understand every side of the story, and that's why you have so much backlash in this comment thread. By failing to analyze from all sides, you sound like an ignorant, hard-headed dumbass and it makes people not want to listen to you whenever they don't agree. My other point that I would like to bring up about the videos being put on the restricted list is that this "restricted list" is also put on the content filters schools, businesses, libraries, and other institutions use whenever they want to manage the internet usage. This means that high school kids researching for a project in their government class can't use these videos as a resource because they have a content filter blocking these videos. I have a personal experience with this actually, because once in junior year (yes a high schooler is the one using their brain and yes indeed, that's a biased phrase used to insult) I made a project talking about how our freedoms are given to us by the constitution allow us to do things such as speak our minds, no matter the opinion, shoot guns safely and in defense, and other things those on the political left may not like but are law. However, YouTube saw this video and placed it on the Restricted List, making it unviewable to present in my AP class. I had sent the video to my teacher previously and she saw no reason to restrict the video. If I have to sum up everything from this, don't be a narrow-minded ass if you don't need to be. If you want people to enjoy your blog or whatever the hell it is you do here, you need to be looking for the truth. I'm not saying your view is wrong; there's nothing wrong with holding a strong opinion. I stand by what I said in this comment and I hope that this comment thread can become something more than a group of immature people sniping at each other all the time. I say this to both conservatives and liberals, for both are not going about this the right way. Oh, and Mike, actually think it all the way through before you put some bull like this on your page again.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Nov 2019 @ 2:49pm

          Re: Re: Re: Definition

          So when you attempt to appear reasonable and critical of someone else's arguments, but then resort to ad hominem attacks, you're undermining any credibility you might have been graciously afforded through the benefit of the doubt.

          But when you claim you're a victim of not being able to cite utter bullshit from a non-accredited "university" that traffics in partisan propaganda in an academic paper, you lose all credibility whatsoever. The only citation from PragerU that is legitimate in an academic paper is a quotation showing some of the false statements they've made. If PragerU properly cites their sources, then those sources would be the ones you could cite (if they are in fact legitimate sources).

          In addition, the presentation of the issue as one of "two sides" is a false dilemma and breeds the incorrect perception that both sides are equal or that they both derive their perspectives from opinions that must be respected. Nobody is owed having their perspective considered, especially if their perspective is factually challenged and laughable on the face of it.

          reply to this | link to this | view in chronology ]

          • identicon
            Tyler H, 8 Nov 2019 @ 6:13pm

            Re: Re: Re: Re: Definition

            I don't see any part where I claimed to be a victim of not being able to cite PragerU, and I'm not entirely sure what you meant by that. You also are suggesting that purely because you disagree with someone's opinion or perspective, it is invalid. (In addition, the presentation of the issue as one of "two sides" is a false dilemma and breeds the incorrect perception that both sides are equal or that they both derive their perspectives from opinions that must be respected. Nobody is owed having their perspective considered, especially if their perspective is factually challenged and laughable on the face of it.) If this were true, nobody would be able to have political discourse because it seems you're suggesting that you don't have to listen to anybody else, and you're right, you don't have to, but you are willingly ignoring half of the issue just because you don't want to hear opposing views. That is illogical in itself, because you will never truly understand something without hearing all the information from opposing viewpoints. First rule of debate is that you have to understand the argument from both points of view in order to ever reach common ground. I would also like to see this "only correct citation" that you refer to because many things they talk about have a historical and factual basis. I personally don't agree with everything PragerU says, but you used no examples to back up your point so I can't agree with you either. And I find it hypocritical that you mentioned my ad hominem attacks, which I agree might have been unnecessary, but you use them yourself. In this comment alone, you literally said their perspective is laughable on the face of it, and I think I can safely infer you were referring to my perspective (or the opposing ones those who agree share). In short, I agree with your first paragraph and I apologize, don't understand what you're referring to the second, and find the third illogical based on what I've explained. Feel free to comment back.

            reply to this | link to this | view in chronology ]

        • icon
          blademan9999 (profile), 11 Nov 2019 @ 8:43pm

          Re: Re: Re: Definition

          In the Future, PLEASE implement paragraph breaks, your wall of text is hard to read.

          reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 4 Nov 2019 @ 9:46pm

      Re: Definition

      Said the Christian.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 4 Nov 2019 @ 4:07pm

    'Now go away or I shall taunt you... what number are we at now?'

    While I imagine they'll just use this latest loss as 'proof' that apparently everyone, from social media to the courts themselves are against them in order to scratch that persecution complex and/or dupe gullible people into supporting such 'poor victims of the system' it's nice to see yet another court basically laugh them out of the room, giving their arguments exactly as much weight as they deserve.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 4 Nov 2019 @ 4:45pm

    Non-existent bias? That's the dumbest thing I've seen all day, and that's saying a lot since I've been on FB today.. The bias is real, and to turn a blind eye to it makes you look silly..

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 4 Nov 2019 @ 4:48pm

      Re:

      The bias is real

      Ooooh. Citation needed! Time to put the cards on the table AC.

      ...crickets

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2019 @ 5:12pm

      Re:

      Oh, there's definitely a bias but not on YouTube's part. Ultra-conservatives these days are biased against good sense, ethics and general not-being-a-dick. They're biased toward persecution complexes, entitlement and being-a-dick.

      Definitely bias involved here. Just not where you think.

      reply to this | link to this | view in chronology ]

      • icon
        Gary (profile), 4 Nov 2019 @ 7:13pm

        Re: Re:

        Those "Ultra conservatives" are Very Fine People and it's wrong to ban them just because they promote "Racial Purity" and "Killing all the Jews."

        Oh wait - it's not wrong to kick them off a privately owned service and make them squat over at Stormfront.

        I keep getting Nazi's and the Alt-Right mixed up! No way the YouTube Censors couldn't keep that straight...

        reply to this | link to this | view in chronology ]

        • identicon
          Milton, 8 Nov 2019 @ 7:13pm

          Re: Re: Re:

          It's a public forum, dumbass, that's the whole debate here and Prager U has nothing to do with Stormfront because they aren't Nazi's.

          reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 4 Nov 2019 @ 9:47pm

      Re:

      What can be asserted without evidence can be dismissed without evidence. The idiocy of the right is real and can be dealt with accordingly.

      reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 6 Nov 2019 @ 9:20am

      Re:

      Really?

      First of all, I find it strange that this is apparently the first time in remotely recent memory that you’ve heard someone say that YouTube doesn’t have an anti-conservative bias.

      Second, if the bias is real, then prove it. And by the way, if you can only show cases where Nazis or other extremists were banned, that’s not evidence of anti-conservative bias.

      reply to this | link to this | view in chronology ]

  • icon
    Norahc (profile), 4 Nov 2019 @ 5:17pm

    Just goes to show that the initials for Prager University are a very accurate description of them.

    reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 4 Nov 2019 @ 5:43pm

    I find this statement from the decision interesting:

    Prager alleges that defendants have continued to improperly restrict videos by LGBTQ users, which is evidence of viewpoint animus.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2019 @ 6:26pm

    If we go to the dictionary and look at the word bias then youtube has a bias.

    Stuff gets removed for offending laws/morals all the time and the examples of removals I've heard of seem at least somewhat appropriate. Pornography, exposing crimes, over-the-top violence, various sorts of propaganda ect...

    Youtube gets to decide what keeps its website a decent place. I have never seen any content from Prager. I don't accuse Prager of having offensive content because I have never looked at it. But I don't find their overall complaint convincing in any way.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 4 Nov 2019 @ 7:13pm

    for all the money

    for all the money he spends, he could have a Private server, and say/do/post anything he wishes...forever..

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 4 Nov 2019 @ 7:21pm

      But then he wouldn't get to exploit the free infrastructure of YouTube and other social media outlets to spread his speech.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Nov 2019 @ 12:49am

        Re:

        actually, i thought he said he did have, and had cited the number of views at his site in the past, because... reasons. showing how his voice was being silenced or whatever.

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 5 Nov 2019 @ 3:23am

      Re: for all the money

      "he could have a Private server, and say/do/post anything he wishes...forever.."

      Like most of these people, it's not the platform he wants, it's the audience. He knows that building his own platform is trivial compared to the hard work of attracting users, and he wishes to continue to use YouTube's property to do this, even though he's been told he's not welcome there. They always want to have their cake and eat it - be guaranteed the benefits of using a popular platform, but not have to abide by the terms by which they're allowed to use it.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Nov 2019 @ 3:45am

      Re: for all the money

      But he wants to be able to force his views onto an audience, and can only do that if he can speak where the people gather. The real objective of people like that is to make people listen to them.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Nov 2019 @ 12:53am

        Re: Re: for all the money

        because running his ads on his own site would be like those tv ads for the provider you are already using, or the show you are currently watching. apparently he is one up on most networks and tv pipes in that regard.

        reply to this | link to this | view in chronology ]

  • identicon
    William, 13 Nov 2019 @ 11:58pm

    So you are OK with censorship and blatant corruption in courts who throw a legitimate case out for what is essentially no reason?

    If YouTube have "no legal obligation to host videos" then they are a PUBLISHER AND NOT A PLATFORM.

    It really isn't hard and if you support tech censorship you are the enemy, and a traitor to the West.

    It's that simple.

    War is coming, censorship is a major cause, and you support it.

    Shame on you.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2019 @ 12:56am

      Re:

      "If YouTube have "no legal obligation to host videos" then they are a PUBLISHER AND NOT A PLATFORM."

      I'd love to see your justification for this statement. Are you saying that nobody who hosts a platform has any choice about what is hosted, even if they have complaints from customers?

      Let me guess - you say this but support the rampant political censorship on the likes of Breitbart and Infowars?

      reply to this | link to this | view in chronology ]


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