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Tue, 09 Jan 2018
Dennis Prager Seeks Injunction To Keep YouTube From Administering Its Own Site While YouTube Seeks Dismissal
Furnished content.
Late last year, we brought to you the story of Dennis Prager, noted conservative commentator, suing YouTube, noted place where you can watch videos, because the site had put some of his videos into restricted status to keep them from the eyes of younger users. The case is still ongoing and is still strange for many reasons, including Prager asserting his lawsuit on First Amendment grounds, his insisting that YouTube is a public forum and not a private company, and his belief that the Section 230 protections that protect YouTube from every last bit of this somehow don't apply.But now he is upping the ante, requesting the court grant him a preliminary injunction against YouTube to keep it from operating its filters on its own site when it comes to his video content.Presenting U.S. District Judge Lucy Koh with a free speech issue of "profound importance," Prager on Friday even nodded in court to the thoughts of net neutrality supporters."Among others, legal scholars Professors Jeffrey Rosen and Timothy Wu warn that private corporations like Defendants 'have more power over free speech and privacy than any president, king, or Supreme Court justice,'" states a court brief. "Because the First Amendment is 'centered on the problem of wrongful discrimination in communications' these scholars point out that 'anyone who wants to understand free speech in the twenty-first century needs to know how the concept has expanded over time' to include the vast and concentrated power over speech wielded by purportedly private internet intermediaries. And, with the recent curtailment of net neutrality by the FCC, the unprecedented concentration of power over speech by private intermediaries will necessarily be 'followed by an effort to crush ... political opponents and favor ... political supporters.'” Let's just start out by noting that the nod to the repeal of net neutrality feels rather odd coming from someone who does't support net neutrality to begin with. On top of that, the complaint that YouTube has built a great platform for speech that many, many people enjoy using does not somehow put it under the scope of the First Amendment. To get there, Prager's legal team continues to suggest that YouTube is a public forum rather than a private entity, relying mostly on YouTube's own statements about being a forum for speech to do so. This will almost certainly not work, however, as a statement like that doesn't magically strip a private entity of its rights and transform it into a public forum. Worth noting too is that for all the talk of "censoring" in Prager's complaints, his videos are still on the site for anyone wishing to see them. They are just differently searchable having been flagged as restricted. Given that this all comes down to subjective filtering by a private entity, and given that Prager's restricted videos tackle subjects such as rape and abortion, it's hard to see how his claim that this is all the work of a liberal conspiracy to shut down his conservative speech is going to survive.Google, not surprisingly, has likewise moved to have all of this thrown out on its own First Amendment basis.Just as Prager was filing a bid for an injunction, YouTube's parent was moving to dismiss the case that alleges that Prager's videos are on lockdown while liberals like Bill Maher and Lady Gaga are allowed to speak freely on YouTube without being restricted in kind.According to Google, "restricted mode" merely means that the video has been determined to contain "potentially mature" content that may not be suitable for all audiences. "Decisions about which videos fall into that category are often complicated and may involve difficult, subjective judgment calls," write Google's lawyers, adding that none of the videos are removed from YouTube, and all of them can be viewed by users who want to find them.Google argues that Prager's claims are barred by Section 230 of the Communications Act as well as the First Amendment. While the Section 230 argument is more than enough to make this lawsuit fit for the dismissal pile, note that what Prager actually wants is to strip YouTube of its own First Amendment rights by asserting his, all while he continues to enjoy YouTube's product,whcih is hosting his videos and which, again, are still on the site. This sort of pretzeling of one of the key laws governing our country would be sad from anyone, but Prager's own noted interest in protecting the First Amendment makes this all the more eyebrow raising.I don't expect any injunction to be levied against YouTube.
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posted at: 12:02am on 09-Jan-2018
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