Strange times make for strange bedfellows. So it is in 2019 when conservative nonprofit Prager University finds itself allied with a group of left-leaning LGBTQ+ YouTubers. The common denominator? Both groups are suing YouTube for discriminating against their videos.
On Tuesday PragerU, a nonprofit that is not an accredited university and says it promotes the values of free speech and free markets that are “Judeo Christian to their core,” took its case against YouTube to the Ninth US Circuit Court of Appeals. The organization says the video service violated its First Amendment right to free expression by restricting some of its videos and not placing ads near them. The lawsuit, which was thrown out by a lower court judge, alleges YouTube “unlawfully censored” PragerU because it’s biased and also discriminates against conservative voices. “This is speech discrimination plain and simple: censorship based entirely on the perceived identity and political viewpoint of the speaker not on the content of the speech,” reads the suit.
The LBGTQ+ creators’ lawsuit takes a slightly different tack. It claims that YouTube markets itself as a place for “Freedom of Expression,” but labels LGBTQ+ content as “shocking,” “inappropriate,” “offensive,” and “sexually explicit,” while allowing homophobic users to post “vile and obscene content on the pages and channels of the LGBTQ+ plaintiffs and other LGBTQ+ content creators.”
While the cases attack different aspects of YouTube’s approach to content moderation, they highlight the difficult, often contradictory roles many social media companies play. On the one hand, these sites rely on user-generated content to fill their timelines and attract users. On the other hand, they want some measure of control over who and what is on the platform. “I love YouTube and I want to be clear about that. We are not here as an existential threat to YouTube,” said PragerU lawyer Peter Obstler in opening arguments Tuesday. His firm Browne George Ross also represents the LGBTQ+ YouTubers. Because YouTube describes itself as a public forum and a place for free expression, Obstler said, it should be governed that way.
The argument is challenging, primarily because YouTube is not a public space. It’s a company, which has a right to decide what kind of speech it hosts and promotes. Eric Goldman, a law professor who codirects the High Tech Law Institute at Santa Clara University, said YouTube is no different from a newspaper or from WIRED.com, which are free to decide what appears on their sites. “That’s called the editorial process,” said Goldman. No one can sue WIRED for refusing to run an article or op-ed they propose (though many may want to).
By demanding YouTube give prominence to content it doesn’t want to prioritize, PragerU wants to violate YouTube’s First Amendment right to free press. “We live in this strange world where everyone thinks that they have the right to force publishers to publish content that the publishers don’t want to publish,” Goldman added. “That’s called censorship.”
YouTube didn’t remove either PragerU videos or the LGBTQ+ videos from its site. Rather, it labeled them “restricted,” a signal to help parents protect kids from extreme or inappropriate content. Users have to opt in to restricted mode; YouTube estimates only 1.5 percent of users are logged in as restricted on any given day. “All sides of the political spectrum can find an example where they believe their videos have been unfairly treated, usually because they can be filtered by our restricted mode feature due to more mature content,”a YouTube spokesperson wrote in an email.
In general, YouTube wants as much content as it can get. The more content, the more viewers will hang out there and click around, and the more advertising money YouTube can collect. But as advertisers grow uncomfortable about having their content rub up against highly political or potentially offensive content, YouTube has to think harder about what it allows onto the platform.
Source: No One’s Happy With YouTube’s Content Moderation Policies
By Sara Harrison
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