Dennis Prager, founder of the right-wing propaganda outlet Prager University, has a First Amendment right to lie about climate change, deny that straight people get HIV, viciously vilify Muslims, and declare that “men get turned on by any sight of female flesh.” He does not, however, have a right to upload these claims to YouTube and make money off them, the 9th U.S. Circuit Court of Appeals ruled on Wednesday.
PragerU may not be a household name, but it has a surprisingly broad reach: Its five-minute videos have racked up well over 2 billion views across platforms. Although these videos are presented as unbiased educational lessons, they promote exclusively conservative, often fringe views. Prager and his friends regularly condemn Muslims, LGBTQ equality, abortion, feminism, gun control, and campaign finance reform, and deny climate change. (The company is partly funded by fracking billionaires.) The outlet has mastered the art of grabbing viewers’ attention with a provocative video, presented as fact, then pulling them deeper down the rabbit hole into Prager’s bizarre world of toxic propaganda.
It is strange, and more than a little pathetic, that the 9th Circuit had to remind PragerU that YouTube is incapable of unconstitutionally censoring its videos. The Constitution prohibits Congress or the states from abridging the freedom of speech; as the Supreme Court reiterated last year, the First Amendment simply does not apply to private entities, even if they create an open forum for varying viewpoints. Yet PragerU has spent more than two years hounding YouTube in court. Its lawyers insist that PragerU has a constitutional right to host its videos on the platform and profit from them.
This dispute revolves around a number of PragerU videos that YouTube either restricted (limiting them to adult viewer) or demonetized (removing third-party ads). Restricted or demonetized videos include “Is Islam a Religion of Peace?” (answer: it isn’t), “What’s Holding the Arab World Back?” (answer, courtesy of Bret Stephens, summarizing his column in the Wall Street Journal: “the disease of the Arab mind”), and “The World’s Most Persecuted Minority: Christians” (self-explanatory).* PragerU argued that, because YouTube performs a “traditionally public function by regulating free speech within a public forum,” it has transformed into a “state actor.” As a result, it cannot regulate videos on the basis of content or viewpoint, as it apparently did here.
A federal judge rejected that argument in 2018, for good reason. It is true that, under certain circumstances, private actions can become a “public function” subject to constitutional limitations. But the Supreme Court has strictly limited the application of that principle to situations in which the government fully delegated traditional state functions to private entities. The chief example is Marsh v. Alabama, in which SCOTUS applied the First Amendment to a “company town” where a corporation owns all property and controls all municipal functions. Later, the court clarified that Marsh’s principle “was never intended to apply” outside “the very special situation of a company-owned town.”
Despite the fact that no precedent and no constitutional provision supports its claim, PragerU appealed the 2018 ruling to the 9th Circuit. And on Wednesday, the court made quick work of its preposterous argument. Twenty years ago, the 9th Circuit held that “a private entity hosting speech on the Internet is not a state actor.” Today, “that principle has not changed.” YouTube “does not perform a public function by inviting public discourse on its property,” and it is not a “public forum” subject to the First Amendment. Even before the internet, plenty of companies hosted “speech on a private platform”—comedy clubs, for instance—but their embrace of diverse expression did not transmogrify them into state actors. To the contrary, as the Electronic Frontier Foundation noted in a brief, private companies have their own First Amendment right not to publish content they dislike. If there is any censorship here, it is PragerU’s effort to suppress YouTube’s own freedom of speech.
Given that PragerU routinely produces videos purporting to contain expert constitutional analysis, it is troubling that the company would mount such a frivolous lawsuit. In fact, it is so committed to this fight that it mounted a lawsuit in California state court, too (which it is also losing). It is difficult to see why anyone should trust the legal teachings of an outlet that so grievously misunderstands the law. But the First Amendment ensures that anyone eager to poison their mind with hateful gibberish can easily watch any video they want—on PragerU’s own website.
Correction, Feb. 26, 2020: This post originally misspelled Bret Stephens’ first name.