Google and YouTube try to shake civil rights complaint

An unusual civil rights complaint with significant implications for internet service providers heated up just before the New Year.

Last Friday, Google LLC and its subsidiary YouTube LLC urged a federal judge to toss a “radical” lawsuit that seeks to limit their ability to restrict online content, calling it dangerous and unlawful.

The lawsuit was filed earlier this year by the conservative educational organization Prager University, also known as PragerU, which accused the defendants of violating its First Amendment rights by limiting access to dozens of its videos and stripping it of ad revenue. The complaint also brought claims under California’s Unruh Act and Unfair Competition Law.

PragerU is owned by radio personality Dennis Prager and features videos that give a conservative perspective on history and public policy.

Several conservative commentators and activists have accused YouTube, Twitter and other social media platforms of censoring their content without legitimate cause.

PragerU reiterated its constitutional complaint in a motion for a preliminary injunction filed Friday.

The company asked U.S. District Judge Lucy H. Koh of San Jose to order YouTube to remove a number of PragerU videos from “restricted mode,” which prevents many users from seeing them. Prager University v. Google LLC et al., 17-CV06064 (N.D. Cal., filed Oct. 23, 2017).

The defendants raised their own constitutional grievances in the motion to dismiss, accusing PragerU of trying “to fundamentally redefine the relationship between online service providers and their users” by transforming YouTube into a public forum regulated like a government entity.

To some extent this is indeed the crux of PragerU’s complaint. Plaintiff’s counsel from Browne George Ross LLP argued in court papers that YouTube is the functional equivalent of a public forum, both because of its sheer scale and the fact that it promotes itself to users as a platform for free speech.

Former California Gov. Pete Wilson, who represents PragerU, said “the brief speaks eloquently for itself.”

This underlying argument is meritless, according to defense counsel for Google and YouTube. The motion to dismiss cited a similar First Amendment case against Facebook that failed last November because the plaintiffs failed to allege that Facebook is a state actor.

Defense counsel also attacked PragerU’s reliance on an exception to the state-actor rule established by the California Supreme Court case, Robins v. Pruneyard Shopping Ctr. According to Google and YouTube, the Pruneyard case only guaranteed free speech on the premise of a privately owned shopping center and has not been applied to online forums.

“The unprecedented expansion of Pruneyard that Plaintiff seeks is not merely bad law,” the brief said, noting that it could have other profound practical consequences.

“Such a ruling would cast doubt on a whole host of content-based regulations that YouTube and other private platforms routinely use to keep their services free of objectionable or offensive content — including pornography, hate speech, and graphic violence,” the brief added.

Defense counsel Brian M. Willen of Wilson Sonsini Goodrich & Rosati PC did not respond to requests for comment.

Koh will have to weigh this argument against the one presented in PragerU’s court papers, which request “extremely modest and narrow relief that will not interfere with Defendants’ ability to restrict truly obscene or offensive speech.”

PragerU’s brief noted that websites accessible to the public are considered public forums for the purposes of the state’s anti-SLAPP statute.

Significantly, the defendants did not file an anti-SLAPP motion, which may allow PragerU to advance its argument that YouTube constitutes a public forum under California as well as federal law.

A hearing for both motions is scheduled for March 15.