Prager University Loses Another Of Its Silly Lawsuits Against YouTube Over Non-Existent 'Bias'

Dennis Prager has been peddling complete and utter nonsense via his PragerU efforts for quite some time, and it expands beyond that too, because he's been peddling complete and utter nonsense in his still ongoing joke of a lawsuit against YouTube in which he tries to insist that YouTube is biased against conservatives because they put a small number of his videos in "restricted mode." This, despite the facts that (1) YouTube has no legal obligation to host his videos (for free!) in the first place, (2) less than 1.5% of people use "restricted mode" in the first place, (3) "Restricted mode" is to help parents block inappropriate content from kids, (4) the videos that were put into restricted mode had content that many would consider inappropriate for kids, and (5) most importantly, YouTube showed that many other sites -- including those that people consider to be "liberal" had their videos put in restricted mode at a much higher rate than PragerU.

Prager still sued, and a court tossed out the lawsuit with ease last year -- though Prager and his true believers keep pointing to it as some sort of "proof" even though it's not. The lawsuit is still ongoing, sort of. They appealed the original ruling, and the appeals court recently heard arguments in it. I would be shocked if the original ruling wasn't affirmed, but you never know (crazy 9th circuit and all...).

However, there was a separate case filed as well, in California state court. That's because when Judge Koh tossed out the federal case, she focused on all the nonsense federal claims, and noted that she was also tossing out the state claims without analysis, because without the federal claims the case didn't belong in federal court. So, PragerU turned around and sued in state court as well.

And now the state court has tossed out that lawsuit as well. The ruling is pretty thorough and makes fairly quick work of calling out PragerU's ridiculous legal theories for what they are. I've seen more than a few people kicked off of social media platforms insist that California law is on their side, based on some odd readings of both the California Constitution and the so-called Unruh Act. Prager uses both in this case (even though it's not even for being kicked off a platform, just moderated). And the court doesn't buy it. It laughs off the idea that California's constitutional protections of free speech mean YouTube is required to host your nonsense:

it is apparent that Prager does not state a claimunder the California Constitution. Prager contends that "YouTube is the cyber equivalent of atown square where citizens exchange ideas on matters of public interest" and that defendantshave opened their platform to the public by advertising its use for this purpose. However,Prager does not allege that it has been denied access to the core YouTube service. Rather, iturges that its access to "Restricted Mode" and YouTube's advertising service has beenrestricted. Prager does not persuade the Court that these services are freely open to the publicor are the functional equivalent of a traditional public forum like a town square or a centralbusiness district. Considering "the nature, purpose, and primary use of the property; theextent and nature of the public invitation to use the property; and the relationship between theideas sought to be presented and the purpose of the property's occupants" (Albertson's, Inc. v.Young (2003) 107 Cal.App.4th at p. 119), it is clear that these services are nothing like atraditional public forum. "Restricted Mode" is an optional service that enables users to limitthe content that they (or their children, patrons, or employees) view in order to avoid maturecontent. Limiting content is the very purpose of this service, and defendants do not givecontent creators unrestricted access to it or suggest that they will do so. The service exists topermit users to avoid the more open experience of the core YouTube service. Similarly, theuse of YouTube's advertising service is restricted to meet the preferences of advertisers.

And then of course there's Section 230 of the Communications Decency Act which the court rightly notes makes this entire case silly. What's interesting here is that the court actually does an analysis based on section (c)(2) of CDA 230. Nearly all CDA cases are based on section (c)(1), which is the part focused on correctly applying liability. (c)(2) is the part that directly talks about why sites should be free to moderate and not held liable for their own moderation choices. I've always found it odd that even in past moderation cases, courts have mostly still just relied on (c)(1) and ignored (c)(2) even though it has even more relevance.

Here, the court actually does look at (c)(2) and highlights how Prager misrepresents it. Here's Section 230(c)(2) in case you've forgotten it:

No provider or user of an interactive computer service shall be held liable on account of-

(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

PragerU tried to argue that putting its videos into restricted mode were not done "in good faith" as noted in part (A). First off, that's silly. There is no evidence that anything was not done in good faith. But, more to the point, the judge notes that PragerU is actually pretending that part (B) has a "good faith" requirement, as that's the most relevant section. And there is no good faith requirement there.

Rather than unilaterally restricting access to material on its core platform ascontemplated by section 230(c)(2)(A)-which contains a "good faith" requirement-defendants allow users to voluntarily restrict access to material that defendants deemobjectionable for the stated reason that, like the categories of material enumerated by thestatute, it may be inappropriate for young or sensitive viewers.6 The Court views this as acritical difference between the two provisions...

PragerU really leaned hard on the "good faith" claim, but the court says "nope."

While the Court understands Prager's argument that all three provisions of section 230should have a good faith requirement, this argument is contrary to the plain language of thestatute. (See Hassell v. Bird, supra, 5 Cal.5th at p. 540 [noting that Barrett v. Rosenthal,supra, 40 Cal.4th 33 voiced "qualms" that Zeran's interpretation of section 230 providesblanket immunity for those who intentionally redistribute defamatory statements, but held"these concerns were of no legal consequence" where principles of statutory interpretationcompelled a broad construction].) And while it is not this Court's role to judge the wisdom ofthe policy embodied by section 230, there are good reasons to support it.

It goes on to explain that requiring good faith in all aspects of 230 protected moderation would force companies to regularly have to defend each and every editorial decision "on a case by case basis" and that would undermine the entire point of Section 230.

The court also laughs off PragerU's ridiculous argument that YouTube's content moderation practices remove immunity under (c)(1) because its moderation choices create liability (again, this would undermine the entire point of CDA 230).

In opposition to defendants' demurrer, Prager cites a number of cases that affirm theprinciple applied in Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC,supra, 521 F.3d 1157, which held that a service provider is not entitled to CDA immunity withregard to content it develops itself. However, this principle is inapposite here. Prager does notallege that defendants developed any of Prager's content or appended any commentary to it-to the contrary, they allege the content became completely invisible in "Restricted Mode" orwas simply demonetized. Applying CDA immunity under these circumstances does notconflict with Roommates.

A claim of "prior restraint" is also easily dismissed:

Finally, Prager contends that applying CDA immunity here would constitute anunlawful prior restraint on its speech in violation of the First Amendment. However, a federalcourt has already held that defendants' conduct does not violate the First Amendment, and thisCourt agrees with that analysis for the reasons discussed in connection with its analysis ofPrager's claim under the California Constitution. Moreover, Prager does not allege thatdefendants prevented it from engaging in speech, even on their own platform-again, itcontends that certain videos were excluded from "Restricted Mode" and/or were demonetized.

Lastly, Prager argued that this bit of moderation somehow was a "breach of the implied covenant of good faith and fair dealing under California's Unfair Competition Law (UCL)." Again, the court has a quick "nope" for the legal geniuses from PragerU:

Prager does not and cannot state a claim for breach of the implied covenant of goodfaith and fair dealing in light of the express provisions of YouTube's Terms of Service, whichprovide that "YouTube reserves the right to remove Content without prior notice" and whichalso allow YouTube to "discontinue any aspect of the Service at any time."... Similarly, YouTube'sAdSense Terms of Service reserve the right "to refuse or limit your access to the Services."

The court also discusses another of PragerU's laughable theories -- that YouTube's public statements that "the same standards apply equally to all" makes their UCL argument valid. The court again explains how that makes no sense:

Prager does not allege that it suffered a loss of money orproperty as a result of its reliance on this statement. "There are innumerable ways in whicheconomic injury from unfair competition may be shown," including where a plaintiff "ha[s] apresent or future property interest diminished."... The "lost income, reduced viewership, anddamage to brand, reputation, and goodwill" that Prager alleges... would certainlysatisfy this requirement if there were a causal connection between Prager's alleged reliance ondefendants' statement in participating in the YouTube service and these harms. However,these injuries cannot have resulted from Prager's decision to use YouTube: they could onlyhave been caused by YouTube's later decisions to restrict and/or demonetize Prager's content....

In short, as basically everyone has said all along, there is no legal argument here. There is nothing but nonsense. Just like PragerU itself.