“I promise you, one day you will say, first they came after conservatives, and I said nothing,” opined Dennis Prager at a Senate hearing in July, invoking the famous Holocaust poem by Martin Niemöller. In this case, they refers not to Nazis but to YouTube, which Prager contends is censoring his business. The right-leaning radio host runs Prager University, also known as PragerU, a nonprofit that publishes videos to YouTube, a Google subsidiary.
Prager sued the platform in 2019 after YouTube classified some of its videos in a way that hid them from the 1.5 percent of users who had opted into “restricted mode,” which screens out content with mature themes.
While it’s worth debating whether YouTube should handle political content identically to violent and sexually suggestive content, PragerU’s suit argued that YouTube has become so large that it should now be treated as a public utility and thus prohibited from engaging in viewpoint discrimination. In a ruling issued in February, the U.S. Court of Appeals for the 9th Circuit fundamentally rejected that argument. “PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent,” wrote Circuit Judge M. Margaret McKeown, reminding the plaintiffs that the Constitution protects individuals only from government censorship.
PragerU found common ground on this issue with Rep. Tulsi Gabbard (D–Hawaii), who sued Google for violating her First Amendment rights after it temporarily suspended her campaign advertising account following an especially compelling Democratic primary debate performance in June. (Google says the suspension was automatically triggered by its anti-fraud provision, which flags accounts with large changes in spending.)
Like PragerU, Gabbard argued that Google is a public utility and, as such, should be required to maintain neutrality. But as Judge Stephen Wilson of the U.S. District Court for the Central District of California observed, the First Amendment has no bearing on decisions made by private businesses. “Google is not now, nor (to the Court’s knowledge) has it ever been, an arm of the United States government,” he wrote.
Gabbard and PragerU may very well be justified in railing against Google’s content moderation methods. But they seem not to have considered the deleterious effects they might have had on the open internet if they had prevailed in court. It’s possible that companies would start scrubbing more content in an effort to avoid lawsuits alleging preferential treatment for certain viewpoints. Conversely, they might also forfeit their right to moderate content at all, which both Prager and Gabbard might change their mind on once companies lose the ability to remove porn.
Forcing Google to behave like a public utility would not be likely to serve the interests of those demanding that designation, to say nothing of the rest of us.