PragerU Loses Lawsuit Against YouTube

PragerU lost their investment in a lawsuit that alleged the privately owned YouTube had violated the First Amendment. They should’ve spend the cash on developing their own video-sharing website,

Prager University, named for its founder Dennis Prager makes informative short-form videos on a variety of conservative-adjacent topics. Last year, PragerU was hit with sanctions that saw fifty of their videos demonetized and classed as ‘restricted.’ See the Daily Caller’s January write-up for more on the lead-up to the lawsuit.

On 23 October 2017, PragerU issued a press release and filed a suit asking for a jury trial against Google Inc. and its subsidiary YouTube LLC. The suit presents a variety of complaints against the video uploading website of the same type we have heard for months from other conservative creators, namely that the removal and restriction of YouTube videos is a violation of freedom of expression.

On 25 March 2018, the case was dismissed by Judge Lucy Koh.  Here’s the crux:

  • “As discussed above, Plaintiff’s complaint asserts only two substantive federal causes of action: violation of the First Amendment, and violation of the Lanham Act [defn. Lanham Act] … the Court agrees with Defendants that Plaintiff has failed to state a claim  under either the First Amendment or the Lanham Act…”

In the decision, the Court explains that PragerU misunderstands the role of YouTube in the protection of freedom of expression. To be precise, PragerU misunderstands the purview of a “traditionally public function” as a part of the argument that YouTube ought to function as a public square. The Court points out that the test for public functionality is that a “private activity becomes a ‘public function’ only if that action has been ‘traditionally the exclusive prerogative of the State,” according to a 2002 ruling from the 9th Circuit Court of Appeals. That is, PragerU was using a standard meant to describe public elections and town governance, not for penalizing a website that makes life difficult for conservative uploaders. The Court ruled that PragerU did not present “any persuasive authority” that YouTube — by the virtue of creating a video sharing website that reserves the ability to restrict the content uploaded by third parties — ought to be judged similarly to the “‘very few’ functions that were traditionally ‘exclusively reserved to the State.'”

From browsing the discussion, PragerU’s lawyers rested on the kind of internet meme arguments that might win you a debate over lunch, but won’t get you a second court date — or even the filing of friendly amicus briefs.

Despite earning praise for their ability to present compelling arguments for conservatism,  PragerU has fallen short in court. According this ruling, Dennis and pals have unsuccessfully argued that YouTube is a “public forum dedicated to the freedom of expression to all.” Further, PragerU’s call to invoke First Amendment rights as a pathway to reinstate their personal uploads was not validated by the creative marketing tactic of branding video uploads as “private property,” which had been placed on a “public forum for speech.”

At least one argument presented by PragerU is something I recognize pilfered from the soporific phenomenological concern for the dimensions of public space.

“Plaintiff primarily relies on the United States Supreme Court’s decision in Marsh v. Alabama to support its argument, but Marsh plainly did not go so far as to hold that any private property owner ‘who operated its property as a public forum for speech’ automatically becomes a state actor who must comply with the First Amendment.”

The Court goes on to refer to the decision of the case, in which Justice Black describes that the shopping center property in question was not to be treated as a town because it did not take on “all attributes of a town, i.e., ‘residential buildings, streets, a system of sewers…'” and that while one aspect may be in place on private property, that one townish aspect does not necessarily transform a privately owned shopping mall into a town.

The 27-page Order to Dismiss is available online here.

gg, better luck next time Dennis. Conservatives should’ve never left talk radio, if you ask me.

Disclaimer: I’m not a lawyer, and when YouTube demonetized my videos I pulled them all down instead of forcing a lawsuit.

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1 Response

  1. Daniel Sullenberger says:

    The real underlying problem here is that most of the people connected to the conservative movement who actually have the money and resources to set up a video streaming platform only consider “Conservative” to be a brand name or marketing buzzword. For them, it’s little more than a designer label they slap on themselves to get an audience. And they don’t care about growing the movement or boosting smaller voices to the get the message out there. It’s why there’s so many idiots who steal content and try to pass it off as their own, and why so many conservative sites blacklist/turn against other conservative individuals/smaller sites under the flimsiest of pretenses.
    So, even though there’s more than enough money for the conservative movement to build a platform to directly compete with YouTube, or even just buy a big enough stake so they can force YT to start being politically neutral, that’s just not going to happen, because the conservative movement is infested with opportunistic shitbags who will step on your face sooner than lending a helping hand to their fellow conservatives.

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