October 21, 2020

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

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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