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.
PragerU may argue that YouTube is promoting certain views over others, but Sarah T. Roberts, a professor at UCLA who studies commercial content moderation, said that’s not the company’s goal: The platform sifts through content “to protect its own brand and reputation and to manage its relationship with its primary customer, which is advertisers.” Content that is deemed too far from the mainstream—either because it is too sexually explicit or because it addresses topics that are taboo, or promotes theories that are considered hateful or inappropriate—may be restricted or demonetized so that YouTube can keep advertisers happy, added Roberts. YouTube makes this clear in its advertiser-friendly content guidelines, which explain that everything from graphic nudity to tobacco, drug use, and firearms may be “unsuitable for ads.” The page also notes that controversial issues are a problem: “content that features or focuses on sensitive topics or events is generally not suitable for ads. This policy applies even if the content is purely commentary or contains no graphic imagery.”
For PragerU, the lawsuit is also an opportunity to rally its fan base. A Facebook fund-raiser for the court battle has been liked nearly 3.5 million times and has raised more than $100,000. Instagram posts spelling out “We’re taking Google/YouTube to court” and “Help us tell big tech to stop censoring PragerU” have more than 15,000 likes. PragerU is also suing YouTube in California state court. The LGBTQ+ lawsuit hasn’t gone to trial yet.
Becca Lewis, a doctoral student at Stanford who studies far-right online movements, said conservatives in America have used similar strategies for decades. “There’s a long history of right-wing organizations, starting in the ‘60s and ‘70s, claiming that certain institutions are biased to the left in an effort to actually push them to the right,” she said. Lewis pointed to conservative think tanks like the American Enterprise Institute and the Heritage Foundation, who complained in the past that organizations like the Brookings Institute or The New York Times, which thought of themselves as neutral, actually had liberal biases. In an attempt to preserve neutrality, those organizations would hire more conservative thinkers and columnists. Suddenly, she noted, the conversation was pushed further to the right. The Heritage Foundation continues those tactics today, calling on conservatives to “present a united front” against social media companies.
PragerU, whose videos have garnered nearly 2.5 billion views and whose channel has more than 2 million subscribers, has thrived in the YouTube ecosystem. A YouTube spokesperson called PragerU a “YouTube success story.” Lewis said some of that success was made possible by recommendation algorithms, which created incentives for PragerU to lean into more incendiary or outrageous content favored by the algorithms. PragerU also cleverly tapped YouTube’s culture of celebrity and collaboration. What’s more, it has built up an impressive following, inviting popular right-wing personalities like Ben Shapiro, Tucker Carlson, and Adam Carolla to host videos. Those collaborations can bring in even more viewers, eager to hear more conservative content.
While those communities may be very popular, they aren’t naturally occurring phenomena. YouTube’s ecosystem helped create them, but there’s no requirement that YouTube sustain them. For Goldman, the suggestion that we should require YouTube to host certain content is disturbing. “We’re living in a crazy time where it’s normalized that we should censor online publishers and tell them what to publish,” he said. “That’s crazy talk. That’s not the America I grew up in.”