Last week, John Hinderaker at PowerLine had an update on Prager
U’s legal battles against YouTube’s and Google’s censorship of its educational videos:
For several years, YouTube has
suppressed Prager U’s videos by “restricting” them, which makes them invisible
to viewers who are using the restricted mode, as is the case in many school
environments, and by not allowing them to be monetized. After multiple appeals
of YouTube’s discriminatory decisions, Prager U sued YouTube and Google in
federal court, alleging violations of the First Amendment and the Lanham Act
(the federal law that governs advertising in interstate commerce), as well as
several causes of action under California law. The district court judge granted
defendants’ motion to dismiss the federal counts, and Prager U appealed. That
appeal was argued on Tuesday before a three-judge panel of the 9th Circuit
Court of Appeals.
That YouTube has engaged in
viewpoint discrimination to the detriment of Prager U is indisputable. That
YouTube does this because its employees disapprove of conservatism is obvious.
But YouTube and Google are private companies, and the First Amendment applies
only to government. (“Congress shall make no law…”) The U.S. Supreme Court has
articulated a narrow exception where the First Amendment can apply to private
entities if they “exercise powers traditionally exclusively reserved to the
State.” Prager U faces an obvious hurdle, in that hosting videos is not a
traditional governmental function.
Mr. Hinderaker is not all that optimistic in a speedy
remedy:
Prager U may yet win its case,
which is in its early innings. Perhaps the 9th Circuit will hold that Prager’s
First Amendment and Lanham Act claims state a claim, and give it a green light
to pursue discovery. Perhaps Prager U will prevail on its state law causes of
action, although I assume that California’s judiciary is securely in the hands
of the Democratic Party, which generally is not in favor of free speech. But
for the foreseeable future, the Left’s control over the principal means of
public communication will remain a huge advantage.
The full article is here.
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