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YouTube and PragerU’s Lawsuit: The Case for Prager
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.
ADDENDUM:
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.
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Tell that to the baker in CO.
Wishing Dennis Prager a decisive victory-my ten year old son is sitting right by me watching Prager-U, obtaining certificates he’s very proud of. Dennis is the best sitter ever!
One of my favorite YouTubers has a video about this:
https://www.youtube.com/watch?v=tzb8U0Bje5A
Basically, he is saying that the rules appear to be arbitrary and not controlled by any real human beings.
YouTube is asking for itself to get regulated.
I meant any rules concerning freedom of the press/expression. I’m not a libertarian like Rand who’d perit racial discrimination. In less than a yr we’ll know whether cakes are a matter of discrimination or compelled speech. I believe it is the latter, but Kennedy probably won’t.
The infuriating part is that if the baker in CO refuses some business, it doesn’t mean his customer goes hungry. I went to a bakery today and the power was out; I drove 2 miles down the road and got what I needed.
If YouTube demonetizes or restricts your videos, you have nowhere else to go.
This is a tough case – I am a staunch defender of the right of every business to do business with whomever they choose. But … I was naive then. I believed greed would win.
I think YouTube will get slammed eventually with monopoly lawsuits.
You’re right, that they can choose whom they do business with as long as the discrimination is not based on the person’s status as a member of one of the protected classes. Publishers certainly don’t have to publish every author’s work.
However, you are also right that the problem is that they control the market.
Prager may lose this case, but the Justice Department should be looking into monopoly issues. And public utility issues–why the gas companies have to submit to government regulation. If people need YouTube and it has achieved the status of a public utility, then YouTube’s right to not publish some of their customers’ work is not assured.
It’s an interesting case.
I find it hard to imagine that YouTube – with its access to Google cash and what must be an impressive team of lawyers – hasn’t written a legally watertight agreement for its “partners” that would allow it to easily win this lawsuit.
I’m not a lawyer and I haven’t read about the specific claims of this lawsuit (other than the brief overview in the press today), but this certainly seems like an issue that any good lawyer could ensure that YouTube has its bases completely covered on.
It’s possible that’s where the Prager attorneys see a lawsuit. The YouTube lawyers may have made a big mistake in how they worded their terms-of-service agreement.
Alternatively (as already mentioned) there might not be any way to win the suit, but everyone finding out what YouTube is up to might have the same effect as a “win”.
I’ve mentioned to more than one person on the left the YouTube issues I’m aware of and usually get an answer like “Hah! I don’t believe it”.
It would be awesome if YouTube’s defense is: Yeah, we’re stifling conservatives; what of it?
But now I’m talking myself out of it as most of the people I know on the left claim to believe in free speech, but not “hate speech”. And “hate speech” = anything they disagree with.
Good point. You may be right.
I was listening to Rush Limbaugh ten years ago one slow-news-day afternoon, and he said something quietly but confidently that has stayed with me ever since. Paraphrasing greatly, “I know things look bad right now. But we are a free country, and I know that out there somewhere someone is working on this problem and will come up with a great solution.”
Perhaps what will come out of the knowledge that Youtube is silencing conservatives is a new alternative to YouTube. Talk radio was a response to the evening network news that was skewed so far to the left as to be useless.
I hope it plays out that way.
Now that’s a powerful argument.– (A fellow Dad)
I’ve discussed this a bit with people who have youtube channels. I don’t know what counts as watertight, but I think youtube is acting in bad faith. Imagine if you supplement your income this way. It’s not just a hobby but part time small business.
Youtube puts your product on the market and sells it for you. They’ve set out rules to give you guidance about what sort of product to create. You rely on them to adhere to those rules in order to know what to bring to market. Can they lie to you?
Can they arbitrarily refuse your product in spite of the rules – not because no one would pay for it – but because they don’t like your politics? This seems like sabatoge of small businesses by a powerful big business.
What if it were ebay or etsy? The NYSE is a private entity. Can they start rejecting some political investment funds (which do exist) but not others when they claim that they don’t and will not do just that?
I’m not suggesting that they can’t discriminate based on politics. I’m saying that if they do, they can’t deceive people about it so they end up creating products that can’t be sold.
Yes! The truth would have been a PR problem, so they engaged in deceptive business practices that cost content producers to waste resources and lose profits.
1.) As in many such things, I see no reason to elevate this to the question of high principle, federal law, and the Constitution. What we have here is a run-of-the-mill failure to perform contract case.
2.) However, as the Left is so interested in ignoring the law in favor of running things up to the level of high principle, federal law, and the Constitution (that exists in their imaginations), I am willing to stand aside while our side decides that two can play this game.
I think that you’re right. The case seems like a winner to me but I think the 1st Amdt argument is just spurious.
Here’s why I suspect it was included:
Is the Internet due / overdue for a revamp?
I just finished reading an email from someone trying to sell me something. There was much talk of “blockchain” and “IoT” (Internet of things?) and how it’s going to be the next big thing. Most of it went completely over my head but I picked up some new buzzwords (always handy when speaking to Millennials)
Anyway, if any of that is even remotely accurate, there’s a huge opportunity for new and improved Facebooks and YouTubes to be created.
There might be amicus briefs lined up, too.
I like your notion that Google might be feeling a little nervous about anti monopoly things to worry about.
How do we know there was deception if we don’t know the actual wording in the contract? Isn’t it likely that there is some clause in which YouTube essentially says they may remove any content for any reason they feel appropriate? If so, that would seem to give YouTube a blanket indemnification, in this layman’s eyes.
Again, how do we know if we don’t know what’s actually in the contract?
I can’t imagine the largest host of video content would not write a contract with a clause giving them essentially free reign.
The trial will inform us. I’m not saying anything about the case itself, just that if there is a case, it will be based on YouTube’s not living up to its contract, not some high principal. I am observing what the claim is, not the verdict.
I don’t understand the question. It’s not a secret. You just click to accept the terms of the agreement when you decide to monetize your content. Again, I’m not claiming that they couldn’t discriminate. I’m saying that they claim not to – which means that they’re and deceiving their partners.
Use the ebay analogy. You click to accept a contract and the company publishes limits on what they exclude (eg, things like firearms, videos of unsimulated violence, counterfeit designer goods etc.). If your product doesn’t meet any of the conditions for exclusion and ebay is excluding for reasons that they publicly claim they won’t – like selling back issues of National Review – then that is deception.
It seems to me that you’re suggesting (mendel not sabradance) that if the contract as document doesn’t exclude something, then you can lie to business partners about how you deal with them. I don’t think that it works that way. If you make a commitment to someone, you’re contracting to fulfill your part of the deal whether it’s on the document that is signed or not.
Great! I’m adding that to the Lexicon.
[I had to delete my own comment for reasons having nothing to do, I assure you, with Ricochet’s Code of Conduct.]
I tell myself that all the time.
We take down the NFL and other too big to fail organizations will get nervous.
Another interesting couple of opportunities are simply: “Discovery” and along with that “Deposing Google execs”. That could produce some very interesting documentation and reading along with the possibility of a PR nightmare if any produces off the cuff remarks regards the audiences of PragerU.
The IRS discriminated against conservative groups and finally lost. I’m wondering if Google and other companies felt safe in following their example and if the settlement of that case in favor of the conservative groups will have any effect on Prager’s case. I know nothing about law, but has a precedent now been set?
I’m making a very simple point: YouTube’s contract with their partners allows YouTube to decide, by itself, what content violates its restrictions.
Just for fun, I took a quick look at the general YouTube Terms of Service. I don’t know whether additional ToS would apply to PragerU and in any case I’m not a lawyer. But just from brief perusal I found this clause:
That clause seems to clearly state that YouTube is the one who decides where its own borders are. There’s no deception, because YouTube transparently stated from the beginning that they are the final arbiter of their own rules.
If Ricochet started getting trolled by far left liberals and suppressed their viewpoints, or if Daily Kos did the same to right wingers, what’s the difference with the You Tube case? I’m sure there are differences, but the question is how are they relevant legally. If the argument comes down to the assertion that YouTube isn’t following its own policies, that sounds weak. They can easily change their polices. If it’s a breach of contract argument, that maybe is stronger but ultimately they can just change the wording of the contracts. Legally it sounds like a case of “you can’t get there from here.”
I’m not sure they can change the terms of a contract already entered into.
No but I’m sure the contract expires at some point and they don’t have to renew it. So in the end YouTube wins on that basis.