Friday, March 30, 2018

YouTube's claims about allowing free speech are merely puffery, court holds

Prager University v. Google LLC, No. 17-CV-06064, 2018 WL 1471939 (N.D. Cal. Mar. 26, 2018)

Prager’s “mission” is to “provide conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored” by creating educational videos, though, despite its name, Prager “is not an academic institution and does not offer certifications or diplomas.”

Google allegedly “hold[s] YouTube out to the public as a forum intended to defend and protect free speech where members of the general public may speak, express, and exchange their ideas.” However, Google allegedly discriminated against Prager’s viewpoint by censoring certain videos that it uploaded on YouTube by putting age restrictions on some of Plaintiff’s videos and/or excluding them from YouTube’s “Restricted Mode” setting, which helps schools and other content-screeners by keeping out content that violates YouTube’s guidelines.  Although YouTube has insisted in the past that Restricted Mode and age restriction filtering aren’t supposed to filter out content based on political viewpoints, Google allegedly restricted access to some of Prager’s videos “based on [Defendants’] animus towards [Plaintiff’s] political identity and viewpoint.” Additionally, Google allegedly “demonetized” some of Plaintiff’s videos—by preventing advertisements from running on those videos—in a viewpoint-discriminatory manner.  For example, Prager’s “Are 1 in 5 women in college raped?” has been restricted by YouTube, but “Author Jon Krakauer on new book ‘Missoula’ and college rape epidemic” uploaded by “CBS This Morning” has no such restriction. Prager further alleged that content from some of its restricted videos “was not restricted after it was copied and posted by other content providers or vloggers.”

Prager asserted violations of the First Amendment, the California Constitution, the California Unruh Civil Rights Act, the UCL, and the Lanham Act, as well as breach of the implied covenant of good faith and fair dealing.  The court kicked out the federal claims and declined to exercise supplemental jurisdiction over the state claims.

First Amendment: Google isn’t a state actor. Marsh v. Alabama “plainly did not go so far as to hold that any private property owner ‘who operates its property as a public forum for speech’ automatically becomes a state actor who must comply with the First Amendment.”

Lanham Act: The alleged implication that Prager’s videos were “inappropriate” was, first, pure implication; Prager didn’t identify any Google statements about YT’s classification of those videos. The mere implications arising from decisions to restrict access couldn’t constitute “commercial advertising or promotion” within the meaning of the Lanham Act. Prager alleged no facts that remotely suggested that Google restricted access to Prager’s videos for any “promotional purpose” or “as part of an organized campaign to penetrate the relevant market,” or that the implications of Google’s restriction decisions regarding Prager’s videos was “disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or ‘promotion.’ ”

YT’s policies and guidelines setting forth what videos will be restricted also didn’t constitute commercial advertising or promotion. They were more akin to instruction manuals for physical products, which “are not advertisements or promotions.”

Nor did Prager sufficiently allege harm resulting from the allegedly false policies and guidelines. Although Prager alleged decreased viewership, ad revenue, and advertiser relationships, nothing suggested that this harm flowed from Google’s publication of its guidelines, as opposed to the decision to restrict Prager’s videos.

Google’s allegedly false statements about its viewpoint neutrality (“voices matter” and YouTube is “committed to fostering a community where everyone’s voice can be heard,” YouTube’s “mission” is to “give people a voice” in a “place to express yourself” and in a “community where everyone’s voice can be heard,” and YouTube is “one of the largest and most diverse collections of self-expression in history” that gives “people opportunities to share their voice and talent no matter where they are from or what their age or point of view”) were all puffery.  They weren’t quantifiable or specific enough to be measurable.  Thus these statements were neither “[ ]likely to induce consumer reliance,” nor “capable of being proved false.”

In addition, Prager didn’t sufficiently allege harm from these statements, for the reasons given above.

Prager also alleged that it relied on false representations contained in the parties’ agreements: YT’s representations that Google endeavors to “help you grow,” “discover what works best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos.” First, these claims were no more than puffery. Second, Prager lacked standing under the Lanham Act as a consumer.

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