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I didn’t want to duplicate anything that had been was written already. It took a while but I read all the comments on Should Conservatives Sue Private Media Companies.
I think people are looking at this the wrong way. Yes, YouTube is a private company, but that isn’t the only consideration at play. Like everyone else, I don’t buy the public forum argument against viewpoint discrimination, unless there’s relevant state law in California on the matter (which was alluded to) or unless there’s evidence that YouTube is using its near monopoly in a way that unfairly stifles competition and violates antitrust law. However, the question isn’t, “did YouTube violate the First Amendment?” The First Amendment case is just one argument PragerU makes in their brief (and the question is about suing).
There’s a second argument that I think should win.
YouTube is a business, but so are all the YouTubers who activate the advertising option for their content. YouTube original videos are a minuscule fraction of the whole — and a lot of that is behind a paywall on YouTube Red. YouTube is a dual-function service. The original function was just hosting videos. The second feature hadn’t been added in ’05 when they only existed because connection speeds were too low to send people video files of the cute thing your cat does or your baby crawling.
In ’07 YouTube allowed private individuals (as opposed to the media companies they contracted with before) to get ad revenue for their content. They’re operating a market. They connect advertisers with content. Through the parent company, AdSense can match specific criteria sought by advertisers. The most desirable content (from channels with more subscribers and the right audience demographics) gets “auctioned” with virtual bidding.
Individually YouTube calls the content creators their “partners,” and collectively they call them the “YouTube community.” Every YouTuber has a contract with YouTube, which is essentially letting them set up a stall at a market in exchange for a share of whatever they sell. YouTube says that their market is open to everyone and they promote free expression. Their contract specifies that certain content is banned and that other content will be hosted but won’t be put on the advertising market.
As a private business they can set up whatever rules they want for what videos they use — or they can act as publishers without hard and fast rules who exercise editorial judgment. They can’t arbitrarily violate the rules that they created to govern whether the people contracting with them can access their market. And PragerU is arguing they aren’t being arbitrary at all, but instead are doing it deliberately to harm the business interests of people whom they don’t like (because of their politics) when they have explicitly said that they won’t do that to the people who contract with them.
I want to be perfectly clear about what my position is. I think the First Amendment argument is spurious, but for a variety of reasons its inclusion was quite clever. If this were the entirety of the PragerU case, it would be analogous to the compelled speech “bake me a cake” argument,’but after reading the complaint itself, I am on Prager’s side. Their other (and I suspect their only serious) argument is the one that you commonly hear from right of center YouTubers: their ability to access the market which YouTube runs is blocked in a way that is a violation of YouTube’s stated policies and which prevents them from earning money.
This isn’t like the bakery case; it’s like the apple farm case (see here). There’s a way that this is worse. Imagine if instead of being a market in a liberal town, it was in a moderate town, and the stated policy was to accept any local produce for sale unless it was spoiled — and then the farmer was excluded based on his beliefs. That would damage his business and he should sue and in such circumstances win damages. If YouTube is going to prevent content creators from doing business in their market (many have switched entirely to Patreon rather than abandon their channels which aren’t generating income) they must stop being deceptive about it. You can’t lie to business partners just because you’re afraid of the bad PR from being honest with the public!
Don’t side with YouTube because Prager’s lawsuit uses a disingenuous First Amendment argument to get media attention. Side with the YouTube content creators demanding transparency because you believe in free and fair competition.