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Robin Smith / March 2, 2020

PragerU Loses to YouTube

First Amendment tension — free speech or edited and censored speech?

The recent case between YouTube and conservative author and talk-show host Dennis Prager’s Prager University offers another opportunity to examine the tension in defining and practicing free speech. At the heart of the lawsuit before the Ninth Circuit Court of Appeals, Prager accused the massive video-content company of censorship by designating some of PragerU’s content as restricted, which reduced its access, viewership, and revenue.

The situation’s pretty simple: Two entities — YouTube (owned by Google) and PragerU — are engaged in communications on a large scale. The former as a platform to reach millions and the latter producing conservative content hoping to reach those same millions. YouTube is the vehicle used to distribute video content; it gains profits via advertisements. PragerU publishes digital content to spread conservative messages as part of the ongoing political, cultural, and religious debate.

The Ninth Circuit’s three-judge panel dismissed the suit, pointing to a Supreme Court ruling just last year noting that while the First Amendment constrains the U.S. government from censoring speech, it doesn’t apply to private entities. The argument that YouTube is operating essentially as a state actor due to massive presence as an open public forum for content, dialogue, and speech was unsuccessful since the video platform is privately owned and not a public utility or government entity.

The court was right to protect both the property rights and the speech rights of the private entity, YouTube. But let’s at least look at YouTube’s selective application of the culture of free speech.

This isn’t YouTube’s first time being accused of censoring conservative content. In 2017, The Daily Signal, supported by The Heritage Foundation, published a video with a reference made by a pediatrician that didn’t support LGBTQ+ indoctrination. Dr. Michelle Cretella’s commentary included this comparison: “If you want to cut off a leg or an arm, you’re mentally ill, but if you want to cut off healthy breasts or a penis, you’re transgender.” YouTube pulled this video. Ironically, the volume of transgender content is so large on YouTube that a study was conducted and published in 2017 supporting the application as an educational tool: “YouTube as Educator: A Content Analysis of Issues, Themes, and the Educational Value of Transgender-Created Online Videos.”

It’s not just “gender fluidity” that’s embraced by YouTube. Last year, Newsweek featured Marc Schulman’s account as a writer who’s worked with Apple, Facebook, and Amazon on content. He recalled having his eight-minute video, entitled “The Holocaust — A Short History,” similarly labeled and restricted by YouTube. Schulman’s own is a website devoted to the education of middle- and high-school students. Yet his educational video about the horrors of the Holocaust (already published elsewhere) was deemed inappropriate and restricted.

Certainly, YouTube is a private entity. But its own screening, labeling, restricting, and blocking of content disproportionately limits the ideological and religious Right. That exposes an unfortunate reality: These private entities are so large and monopolistic in their control over certain avenues of communication that the end result is partisan censorship.

The obvious bias of the content of these social-media platforms reflects the ideology of their owners and many employees. It’s quite interesting that the courts permit privately owned but essentially monopolistic entities like Google and Facebook to limit access to their services but it took the Supreme Court stepping in to permit a small bakery owned by Christians to make the same determinations about a wedding cake based on the First Amendment’s exercise of religion.

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