PragerU Turns to 9th Circuit for Relief Against YouTube

By: Sami Elamad

“How Conservatives Weaponized the First Amendment,” read a headline in the New York Times last year. The article reported on U.S. Supreme Court Justice Kagan’s dissent in a case where, among other things, she proclaimed that conservatives were “weaponizing the First Amendment.” The tenor attending the responses in conservative circles suggests that Justice Kagan’s assertion may be increasingly prescient. Indeed, the debate about the First Amendment continues to rage in cyberspace, Congress, college campuses and recently, the courts.

Last month, Prager University (PragerU) took to a federal appeals court for relief in response to YouTube’s decision to remove their videos from its site. The case, Prager v. Google, LLC., concerns YouTube’s decision to place about 20 percent of Prager’s videos in “Restricted Mode.” According to YouTube, it is “an optional setting … to help screen out potentially mature content that [a user] may prefer not to see.”

Known for their bite-size videos featuring prominent conservative speakers such as Ben Shapiro and Jordan Peterson, PragerU has gained popularity in recent years for discussing a variety of topics from a right-wing perspective. Some of its more popular video titles include, “Make Men Masculine Again,” “Who Will Google Silence Next?,” “War on Boys,” and “There Is No Gender Wage Gap.” However, PragerU is neither a university nor does it provide diplomas of any kind. Rather, it is a non-profit organization.

PragerU’s attorneys presented oral arguments on August 27 before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit after the lower court ruled against them in March 2018. PragerU asked the appeals court to determine whether YouTube’s content moderation decisions are subject to regulation under the First Amendment. YouTube’s self-proclaimed “viewpoint neutrality” is also in question. Moreover, PragerU contends, YouTube “cannot have it both ways” and therefore, “induce the public” to enter and speak in a public forum, i.e., its website.

Notably, last year, the U.S. Supreme Court handed down a 5-4 vote in Manhattan Community Access Corp. v. Halleck where the Court addressed whether a private company is obligated to respect an individual’s First Amendment rights.

“[W]hen a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor,” the Court found. “In short, merely hosting speech by others does not alone transform private entities into state actors subject to First Amendment constraints.”

During oral arguments in the Ninth Circuit, Peter Obstler, lead counsel for PragerU, argued that YouTube is a “public forum for freedom of expression,” which its leadership even “repeated to Congress under oath.” However, Judge Bybee’s questions suggested that the court was not persuaded by this assertion, inquiring “[i]f YouTube had come forward and said, ‘We’ve agreed to bind ourselves by the First Amendment,’ [your argument suggests] that would somehow … have some consequence that this court would be responsible for enforcing outside of a contract.”

Eric Goldman, an Internet law professor at Santa Clara University School of Law, was not convinced by PragerU’s arguments.

“The fact that YouTube controls such a large percentage of the video hosting industry might sound disconcerting,” he said, “but media consolidation is a well-known phenomenon in all aspects of the media ecology.”

When a consumer selects a specific media publisher, Goldman said, “[they] are buying into their editorial policies.” By virtue of accessing and using a given media publisher, users inherently support its editorial decision-making, he reasoned.

Yet, YouTube does not keep its end of the bargain, Obstler said. YouTube initially invites users to enter and freely post on its site, but later curbs their freedom to do so.

“They’re not applying [their policies] equally to everyone—that’s what this lawsuit is about. We’re not saying you can’t regulate the internet,” Obstler said. “They control 95% of the video communications in the world. They put more content on their site in one day than the networks put on in twenty years combined.”

During oral arguments before the Ninth Circuit, Brian Willen, lead counsel for YouTube and Google, said Prager’s claims are “based on an entirely artificial premise.” He added, “YouTube is not discriminating against [PragerU],” eliciting mild surprise from Judge Bybee. “Whoa, now, I mean, if that’s your opening line, you’re inviting us to make that judgment.” Judge McKeown added, “Then, put [PragerU] back on.” Willen declined an interview request, and neither Google nor YouTube provided a response to requests for comment.

“If a private entity is providing the forum, in almost all cases, it is not [a public forum],” Willen posited in oral argument. In turn, it begs the question as to whether or not other remedies exist, should a given user disagree with YouTube’s editorial decisions. Willen’s oral argument suggests that there may not be any other remedy available. “In this case,” Willen said, “they don’t [have a remedy]” related to YouTube’s decisions, and the alternative is to perhaps use another platform.

Writing for the Knight First Amendment Institute at Columbia University about Halleck, Mary Anne Franks concluded, “Social media companies are no more obliged to uphold the First Amendment rights of their users than nightclubs are to protect their patrons’ Second Amendment rights or parents are to respect their children’s Fourth Amendment rights.”

Additionally, Goldman said, political bias and viewpoint neutrality does not even need to be part of the argument. “Bias isn’t bad—it is unavoidable. It’s endemic in the entire nature of being a media publishing company,” said Goldman. 

YouTube has made numerous statements, some of which are not necessarily consistent, Goldman said. Instead, he proposed, “I would start with the premise: ‘I would have never believed [YouTube was] viewpoint neutral.’ That claim was never tenable.”

“Most experts don’t foresee a First Amendment shake-up,” the Wall Street Journal reported about the PragerU lawsuit. “Private censorship today is sometimes just as dangerous as government censorship,” Clay Calvert of the First Amendment Project at the University of Florida told the Journal. “But that doesn’t invoke the First Amendment.”

(Editor's Note: This article was originally published in the October 2019 [Volume 50, Issue 1] version of The Advocate.)