"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 Niemoller. 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...