Prager University (PragerU), a nonprofit digital media organization that creates conservative media content, has sued Google in California for violating its First Amendment rights on YouTube, the streaming platform owned by Google. The complaint, filed on October 25th, 2017, alleges that the Google engaged in censorship and illegally restricted PragerU’s right to free speech by filtering out some of their videos in Restricted Mode. Furthermore, the nonprofit claims that Google has removed the option for PragerU to monetize some of their videos by not sharing advertising revenue generated from certain videos. PragerU claims that Google unfairly targets their videos because they contain conservative political content and that the company arbitrarily enforces its community guidelines. As a result of these actions that were taken with “oppression, fraud [and] malice”, the complaint states that PragerU suffered “lost income, reduced viewership and damage to brand, reputation, and goodwill.” Part of the remedy sought by PragerU is an injunction for Google to stop “censoring” it’s videos. As proof of Google’s political discrimination, the complaint alleges that YouTube filed some of PragerU’s videos on certain topics as restricted, but did not give the same treatment to videos on the same topic but with a liberal perspective. For example, PragerU’s video titled “Are the police racist?” is restricted, but videos on the same topic from Al Jazeera and Real Time with Bill Maher are not. PragerU alleges that Google’s use of “vague, overbroad and subjective criteria” allows for the company’s employees to restrict political speech based on their subjective beliefs.
While PragerU does acknowledge that Google is a private company, they allege that YouTube should be considered a public forum because of its size and relative impact on internet discourse. They argue that like shopping malls, which California courts have ruled in the past to be public forums, YouTube also provides a public space in which individuals can share thoughts and ideas. Therefore, the site should be considered a public forum, subject to free speech protections. However, according to The Hollywood Reporter, this particular claim will be hard to prove. Firstly, Section 230 of the Communications Decency Act gives ISPs immunity from “any action voluntarily taken in good faith” to restrict speech that they find objectionable, “whether or not such material is constitutionally protected.” Secondly, a recent judgment for broadcast channel SiriusXM in California seems to indicate that a company’s discretion in choosing to express third party speech is constitutionally protected and cannot be compelled by the government. Just as SiriusXM’s choice to not to run ads of specific companies was considered speech, courts might view Google’s choice not to endorse PragerU’s videos as appropriate for all viewers as speech, as well. For the government to compel that endorsement through an injunction may be a violation of Google’s First Amendment rights.
As the internet becomes more important to our political landscape, the number of suits of this nature are expected to rise. As reported by Law360, Mat Staver, the founder and chairman of Liberty Counsel, a nonprofit aimed at advancing religious freedom, has provided pro bono legal assistance to this case. Staver released a statement claiming that the “PragerU suit will not be the last suit on this issue” because tech companies like Google and Youtube have shown a pattern of behavior of censoring conservative or Judeo-Christian viewpoints. Google, in commenting on the claim, gave some insight into how they were planning to respond. The company states that while “YouTube is an open platform”, it offers a Restricted Mode that allows users to choose to filter out videos that may include sensitive and mature content. The company claims that this practice is not censorship and is in line with what Congress has encouraged in the past for online content providers to offer more protection for children when browsing the internet.
Adele Zhang is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).