The Law Doesn't Care About Your Feelings: 9th Circuit Slams Prager University For Its Silly Lawsuit Against YouTube

from the go-to-another-bakeshop-dennis dept

Dennis Prager and his silly propaganda machine, PragerU, push out videos about how "facts don't care about your feelings" and how "if a baker won't bake you a cake, find another baker."

Yet, when his feelings were hurt (barely) by a private platform -- YouTube -- he immediately played victim and sued, insisting that YouTube had to host his nonsense. And, remember, YouTube did not "ban" Prager. Indeed, PragerU still has a massive following on YouTube. The issue was just that it put a very small percentage of Prager's videos into "restricted mode," which just meant that for the 1.5% of YouTube users who have restricted mode turned on (generally kids whose parents turned it on), a few of Prager's videos won't show up as highly. But, for that slight, Prager sued YouTube, whining about how it was "anti-conservative bias."

As the case went on, YouTube showed that, actually, the videos of "left leaning" accounts were put into restricted mode at a much higher rate. Prager's actions here were more about playing victim, whining about his hurt feelings, and trying to work the ref to force a private platform to promote more of his videos. It didn't work. Prager lost in federal court and then lost in state court. It wasn't particularly close either.

And yet, despite those losses, Prager continued to whine and whine about how victimized he was by this big bad private company. Even the Wall Street Journal let him publish a facts-optional piece about how oppressed he was by Google (and this was after he'd lost his case).

When we pointed all of this out, Prager fans (and employees...) kept insisting that he'd easily win on appeal. But the 9th Circuit has pretty impressively shut that down with a ruling that comes close to saying "What the fuck is wrong with you."

Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment. Prager University (“PragerU”) sees things differently and claims YouTube’s outsize power to moderate user content is a threat to the fair dissemination of “conservative viewpoints and perspectives on public issues,” and that YouTube has become a public forum.

PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. Just last year, the Court held that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019). The Internet does not alter this state action requirement of the First Amendment. We affirm the district court’s dismissal of PragerU’s complaint.

Throughout the decision, you can almost visualize the judges rolling their eyes:

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause “prohibits only governmental abridgment of speech,” and “does not prohibit private abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) (“the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state”). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its “operation” of the private property as “a public forum for speech.” Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.” Id. at 1930–31. Instead, the Court reaffirmed that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is “not transformed” into a state actor solely by “provid[ing] a forum for speech.” Halleck, 129 S. Ct. at 1930, 1934.

The court quickly explains why each and every nonsense theory put forth by Prager does not change reality. The law doesn't care about your hurt feelings, Dennis.

The relevant function performed by YouTube—hosting speech on a private platform—is hardly “an activity that only governmental entities have traditionally performed.” Halleck, 139 S.Ct. at 1930. Private parties like “[g]rocery stores” and “[c]omedy clubs” have “open[ed] their property for speech.” Id. YouTube does not perform a public function by inviting public discourse on its property. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Lloyd Corp., 407 U.S. at 569. Otherwise “every retail and service establishment in the country” would be bound by constitutional norms. Cent. Hardware Co. v. NLRB, 407 U.S. 539, 547 (1972) (private parking lots do not become state actors just because they are open to the public).

That YouTube is ubiquitous does not alter our public function analysis. PragerU argues that the pervasiveness of YouTube binds it to the First Amendment because Marsh teaches that “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the … constitutional rights of those who use it.” 326 U.S. at 506. PragerU’s reliance on Marsh is not persuasive. In Marsh, the Court held that a private entity operating a company town is a state actor and must abide by the First Amendment. Id. at 505–08. But in Lloyd Corp. and Hudgens, the Court unequivocally confined Marsh’s holding to the unique and rare context of “company town[s]” and other situations where the private actor “perform[s] the full spectrum of municipal powers.”...

YouTube does not fit the bill. Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not “perform[] all the necessary municipal functions,” Flagg Bros., 436 U.S. at 159, nor does it operate a digital business district that has “all the characteristics of any other American town,”

Also, nice try at a hail Mary based on nothing, but, nope:

Shifting gears slightly, PragerU posits that a private entity can be converted into a public forum if its property is opened up for public discourse. This theory finds no support in our precedent. As the Supreme Court has explained, to create a public forum, the government must intentionally open up the property to public discourse.... That YouTube is not owned, leased, or otherwise controlled by the government undermines PragerU’s public forum theory

The court also laughs off the idea that YouTube's statements about its support for free expression somehow bind it to continue to monetize all Prager videos:

PragerU’s attempt to foist a “public forum” label on YouTube by claiming that YouTube declared itself a public forum also fails. YouTube’s representation that it is committed to freedom of expression, or a single statement made by its executive before a congressional committee that she considers YouTube to be a “neutral public fora,” cannot somehow convert private property into a public forum. Whether a property is a public forum is not a matter of election by a private entity. We decline to subscribe to PragerU’s novel opt-in theory of the First Amendment.

Remember back when Prager used to pretend to be a "conservative" who was against the state forcing private businesses to do something they didn't want to? Apparently, that only applies when it's the other guys.

Somehow I doubt that Prager will stop playing the victim and whining about this. He might even try to appeal to the Supreme Court. But given just how recent the Manhattan Neighborhood Network ruling was, which is what the 9th Circuit relies on heavily in this decision, there seems to be close to zero chance that cert is granted -- and even if it was, there's an even lesser chance of the court ruling against Google.

But, thanks to the 1st Amendment, Prager can go on playing the victim, and see if any more suckers fall for it.

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Filed Under: 1st amendment, 9th circuit, content moderation, dennis prager, free speech, intermediary liability, section 230
Companies: google, prageru, youtube


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  • identicon
    Anonymous Coward, 27 Feb 2020 @ 9:34am

    "Remember back when Prager used to pretend to be a "conservative" who was against the state forcing private businesses to do something they didn't want to? Apparently, that only applies when it's the other guys."

    Typical right wing view. It's ok as long as it's not me.

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

    • identicon
      Anonymous Coward, 27 Feb 2020 @ 9:50am

      Re:

      Conservatives: "Laws should protect the people on top of the pile and be enforced against the subhumans at the bottom of the pile."

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

      • icon
        Scary Devil Monastery (profile), 28 Feb 2020 @ 6:33am

        Re: Re:

        "Conservatives: "Laws should protect the people on top of the pile and be enforced against the subhumans at the bottom of the pile.""

        That's not conservatives. No matter how many of the avaricious neo-feudal ultra-authoritarian collectivists making up most of the GOP tries to claim that definition. Not any longer.

        The GOP ceased to be a conservative party back in the 50's. I don't even know WHAT I'd call them today. A real conservative party would be damn cautious about legislation which threatens to undercut the constitution - yet no one has generated more challenges against that document than the last three rounds of republican presidents.

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

      • identicon
        Anonymous Coward, 9 Feb 2021 @ 7:27pm

        Re: Re:

        I see, so laws do not apply to those who are at the top? I thought the whole point of the statement was that no one is above the law. If you, (who are probably at the top of the pile), break a law, do you think you will be exempt from its punishment? Furthermore, it’s the anti-conservatives such as nancy pelosi and Gavin newsom who are protected by the laws. Just in case your wondering, it’s the LEFTISTS who made those laws, that are protecting themselves. The conservatives are just speaking out against the horrible things the laws are I forcing against the bottom. So in theory that statement completely backfires: “the laws that leftists and liberals make, protect the people at the top of the pile and are enforced against the people at the bottom.” Gavin newsom begged the public to stay inside and for children not to go to school, but yet again and again his kids are full time in school. Nancy pelosi is in the same way walking into a hair salon even though she beseeched the public to stay in and not go out. Get your priorities straight!

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

    • icon
      Cdaragorn (profile), 27 Feb 2020 @ 10:41am

      Re:

      Nice try. Both sides have plenty of examples of people falling into that pitfall. It's always hard to accept the truth when your personal feelings have been hurt by it.

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

      • identicon
        Anonymous Coward, 27 Feb 2020 @ 11:20am

        Re: Re:

        Yes, there are some in every crowd - but, how many? What is the distribution?

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

      • identicon
        Anonymous Coward, 27 Feb 2020 @ 11:55am

        Re: Re:

        except one side separates families and sets up concentration camps when they get the power to do so.

        both sides might be bad but they aren't equally bad.

        Also only one side (republicans) claim to some moral high ground and project their problems on the other side.

        "Stupid snowflake libs!" but conservatives are the first to cry about how saying happy holidays is a war on christmass.

        Cry about how much of their tax money goes to feed poor people while professing a love of jesus. Also not caring that 200 times that amount of their paycheck goes to help billionaires make more billions in their major corporate subsidies.

        So back to you, nice try but kindly stfu. The republicans have shown their true colors.

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

        • identicon
          Anonymous Coward, 9 Feb 2021 @ 7:43pm

          Re: Re: Re:

          How do rich people get rich? Do they start of that way, or do they work their way up. Well, as you supposedly say without fact or reason that our money goes towards making billionaires richer? No. Think about it: ITS LEGIt RIGHT IN YOUR FACE! Raising the taxes makes poor people have to pay more and even rich people pay more. Also, it completely angers me that you say the right projects their problems on the left, even though they are the lefts problems. Give me ONE example of when a right wing person BLATANTLY projected the rights problems on the left. No? You can’t find any? That’s too bad: now try the left. Every leftist I know has blamed all the COVID deaths on trump. All the border issues on trump. (EVEN THOUGH THE PICTURES OF “CONCENTRATION CAMPS” WERE FROM OBAMA’S TIME LMAO) Russian collision, even though it was a complete scam of an investigation (justifying the Democrat loss) capitalism works, no doubt that’s why our economy is so great (ANOTHER one of trumps greatest works) LOL GET THIS: THE BIG CORPORATIONS MAKE BETTER JOB OPPORTUNITIES FOR POOR PEOPLE TO EARN MORE MONEY. There is no reasoning behind any of your statements and I want to hear any I pu em can fetch it.

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

    • identicon
      Anonymous Coward, 9 Feb 2021 @ 7:30pm

      Re:

      Very Hypocritical of you to say such a thing: Nancy Pelosi and many other idiotic Leftist leaders continuously implore the public to wear masks and not enter into businesses. Basically, stay safe. But then, just like Gavin Newsom, she walks right into a hair salon despite her begging the public to not go out. Also, Newsom’s children are in full time public schools as he tries to “dictate” that ours can’t go back to school. Second of all, Prager’s basis for the lawsuit is completely beside his self benefit. Yet again and again I find errors within your statement, such as that Prager was against the state telling private businesses what to do: take into note, you say the state. A lawsuit is a private citizens right, not a matter of the state, which is exactly what Prager is against, as you say. Prager isn’t saying it’s ok as long as it’s not me, he’s trying to prevent that statement with the lawsuit. Literally proved yourself wrong. Btw even the leftists admit it: it’s a led wing view lmao

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

  • icon
    Stephen T. Stone (profile), 27 Feb 2020 @ 9:35am

    Hallelujah, the courts got it exactly right. It’s a Leap Year miracle!

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

  • identicon
    Anonymous Coward, 27 Feb 2020 @ 9:48am

    https://twitter.com/prageru/status/1075881983966830593?lang=en

    "If a baker won't bake you a cake, find another baker. Don't demand that the state tell him what to do with his private business."

    Karma's such a bitch isn't it?

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

  • identicon
    ryuugami, 27 Feb 2020 @ 10:09am

    Prager sued YouTube, whining about how it was "anti-conservative bias." As the case went on, YouTube showed that, actually, the videos of "left leaning" accounts were put into restricted mode at a much higher rate.

    This argument just pisses me off. Not "it doesn't matter even if we do have a bias", but "it's fine because we have a pro-conservative bias"? FFS.

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

    • identicon
      Anonymous Coward, 27 Feb 2020 @ 10:18am

      Re:

      That's because you're misunderstanding the argument.

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

    • icon
      James Burkhardt (profile), 27 Feb 2020 @ 10:45am

      Re:

      The argument is not that "it's fine because we have a pro-conservative bias". The argument is that "The data does not back up a finding of anti-conservative bias." The argument being made only expresses that Prager U is not subject to some special level of scrutiny or censorship because it is conservative, because many high-profile left-aligned channels see higher levels of restricted videos than Prager U. The conclusion that this represents a pro-conservative bias is never reached by the article, and just as premature as claims of pro-liberal bias.

      The point Techdirt has made time and time again is that the biases in YouTube's algorithms are unlikely to be based on a supposed political nature of content, but the ability to monetize the content. Never has the argument that politically motivated bias is okay been expressed.

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

      • identicon
        ryuugami, 27 Feb 2020 @ 6:58pm

        Re: Re:

        The conclusion that this represents a pro-conservative bias is never reached by the article, and just as premature as claims of pro-liberal bias.

        The point Techdirt has made time and time again is that the biases in YouTube's algorithms are unlikely to be based on a supposed political nature of content, but the ability to monetize the content.

        If you reread my comment, neither was that conclusion reached by me. I wasn't saying that YouTube does filter by political content. I'm referring specifically to their court argument.

        Never has the argument that politically motivated bias is okay been expressed.

        Not directly, but how else do you read "You are blocking me, therefore you are biased against me", "No, we're blocking the other side more" exchange?

        I'm also aware that when defending against a lawsuit you usually try to cover all your bases, which in this case is, in order:
        1) "there is no political bias against conservatives"
        2) "even if there is, political bias against conservatives is not illegal"
        3) "even if it is, the bias is not against conservatives, so it's fine".
        I'm just pissed off that the third one is even put forward as a valid option.

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

        • icon
          Stephen T. Stone (profile), 27 Feb 2020 @ 7:21pm

          how else do you read "You are blocking me, therefore you are biased against me", "No, we're blocking the other side more" exchange?

          Like this: “If you want to claim we’re more biased against you than we are against the ‘other side’, the evidence says we’re not.”

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

        • icon
          That One Guy (profile), 27 Feb 2020 @ 8:36pm

          Is it 'bias' when a bar kicks out an abusive drunk?

          Not directly, but how else do you read "You are blocking me, therefore you are biased against me", "No, we're blocking the other side more" exchange?

          Several ways come to mind.

          First, if you're going to claim that someone is biased against you that indicates that you are being treated differently and in a negative fashion, and if you are actually being treated better than others that kinda undercuts the whole 'they've got it out for me' idea.

          Alternatively, 'We're not biased against you, we're biased against people/content that violate ours TOS/rules, a category of which you/your content happens to fall into.'

          Lastly, and I'd love it if someone presented this one to Prager to watch him squirm, 'If we are 'biased' against you the numbers would seem to indicate that we're 'biased' against other groups much more than we are against you, so would you say that we are more biased against them?' Given the 'YouTube has it out for conservatives' narrative he(and others) are trying to spin I imagine he'd sooner bite out his own tongue than admit that yes, if the platform is biased against him by the metrics presented they are much more biased against others, several of which he's likely in violent disagreement with, given such an admission would shoot his argument right in the foot.

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

          • icon
            Stephen T. Stone (profile), 27 Feb 2020 @ 11:19pm

            We're not biased against you, we're biased against people/content that violate ours TOS/rules, a category of which you/your content happens to fall into.

            What’s funny is how conservatives like Prager always whine about free speech and shit, but never cop to how their speech violated a service’s TOS when they get booted from the service. They’ll complain about the TOS as if it should allow all speech, sure, but they’ll never own their own breaking of the rules they promised to follow by signing up for the service. For people who love to talk about “personal responsibility” and such, Prager and his “freeze peach” ilk rarely take responsibility for their speech like they think others should.

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

            • icon
              Scary Devil Monastery (profile), 28 Feb 2020 @ 6:37am

              Re:

              "What’s funny is how conservatives like Prager always whine about free speech and shit, but never cop to how their speech violated a service’s TOS when they get booted from the service."

              I wish people would stop abusing the language this way. The word you're looking for is "hypocrite".

              Jeffersson, Franklin and Lincoln are good examples of conservatives.

              Most of the GOP since the 50's...not so much.

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

  • identicon
    Anonymous Coward, 27 Feb 2020 @ 10:13am

    i would support youtube removing any ad monitization videos they have up on their platform for Prager; they don't deserve to monitize their content after such abrasive attempt to drag them through courts to get their own way, knowing full well Youtube has no need to bend to their will. Prager used this as a marketing ploy as much as anything.

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

    • identicon
      Anonymous Coward, 27 Feb 2020 @ 10:27am

      Re:

      Google, Facebook, et. al., have no problem taking assholes' money. Though I agree with you and would even go a step further in hoping that Prager does get demonitized I wouldn't expect Google to turn away from free money.

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

  • identicon
    Anonymous Coward, 27 Feb 2020 @ 11:24am

    "PragerU is not a university or academic institution. It does not hold classes, does not grant certifications or diplomas, and is not accredited by any recognized body."

    https://en.wikipedia.org/wiki/PragerU

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

  • icon
    That One Guy (profile), 27 Feb 2020 @ 12:52pm

    Ah the laughable hypocrisy of the professional victim...

    Oh the sweet sweet schadenfreude, the same person who has argued that if a private business doesn't want to serve you because of their rampant bigotry that's their right just had it pointed out, again, that a private platform has no obligation to give them the preferential treatment they want.

    Tell you what Prager, why don't you stop being such a massive hypocrite and practice what you preach. If you don't like how YouTube is treating you then build your own gorram platform or find one that will give you the special treatment you think you deserve. That is what you told those dirty icky gay people to do after all, suck it up and find another store, so why don't you follow your own advice?

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

  • identicon
    Whoever, 27 Feb 2020 @ 1:03pm

    New policy

    Youtube should just institute a new policy:

    You sue us about moderation and we de-monetize all your videos.

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

  • identicon
    Anonymous Coward, 27 Feb 2020 @ 5:31pm

    the 9th is just the democrat fring, from it comes not truth, only a hegemonic practice, a collective preference, and a sensibility of an already tarnish ideal. and it aont about feelings, hunny, it is about whether or not the 1st amendment is a fraud. and the 9th says that it is but fiction.

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

  • identicon
    Anonymous Coward, 27 Feb 2020 @ 7:24pm

    I don't see how to separate human feelings from human interpreted facts.

    Prager is probably a victim of something other than solely a video hosting and advertising company.

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

  • identicon
    Randy Zeitman, 28 May 2020 @ 7:20pm

    Prager says YT should be regulated because it matter too much...

    Prager says YT should be regulated because it matter too much...
    ... almost sounds like an argument for socialism ... that being exceptional, winning at the game of capitalism, is bad.

    What's extra funny about all this is that I have heard Prager say that PragerU videos on YouTube has had over 2 BILLION views ... and "In its 2019 annual report, PragerU stated that its videos have received over 2.5 billion lifetime views."

    Lets say that's really true .. lets say 2.5 billion people have actually watched videos... where are those people? ... wouldn't there be a very large shift to the Right, all over the world, if a small fraction of videos made people change their minds in some way? Wouldn't such popularity merit a Fox show or TV hosts and elected officials reporting on the incredible transformation (and net worth) from other video education sources such as Khan Academy and Lynda.com (sold for $1.5 billion).

    Has any conservative talk show host used these videos to buttress a point or simply expound on how great they are?

    Where is the public love for such an incredibly popular forum? It's likely the video presenters are greatly helped in the PR department but what is the public effect so far of PragerU? (I'm really asking ... not implicitly saying there is none.)

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

  • icon
    Roger_Smith (profile), 20 Aug 2020 @ 8:11am

    Agreement on the Right

    Among the most interesting reactions to this ruling, Eugene Volokh, who both defended Google and made a video for PragerU as he admits for the sake of transparency for his readers, admitted that the court got it right and that YouTube, no matter how big it is cannot be bound by the 1st Amendment.

    "The analysis seems quite right to me. The court didn't have occasion to discuss any possible California law claims, which I assume Prager University can bring in state court; but I think Prager University is unlikely to succeed on those, either."

    https://reason.com/2020/02/26/youtube-isnt-bound-by-the-first-amendment/

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


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