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PragerU says the First Amendement should apply to YouTube

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The ongoing debate in the US around free speech protections guaranteed by the country’s First Amendment, and how that relates to online platforms, doesn’t seem to be gaining in clarity as it continues to heat up.

Often both opponents and proponents of extending the First Amendment to protect speech on the internet make overly simplistic arguments: that private companies such as Google and Facebook cannot be covered by the rule, or that they absolutely must be.

In essence, while it’s true that the First Amendment is designed to prevent government censorship of the physical “public square” – there have been precedents in the past, although rare, that obligated private entities to also protect free speech.

At the same time, it’s becoming increasingly difficult to dismiss out of hand the possibility that giants like Google and Facebook with their billions of users and massive financial clout, have become a new, digital age incarnation of the public square, that should therefore adhere to the First Amendment.

For the moment, though, US courts seem unwilling to look into such a possibility – especially as it relates to the recent lawsuit brought by Prager University (PragerU), a conservative educational non-profit. The organization is trying to fight back after Google demonetized its videos and made them inaccessible in restricted mode – a setting often used on public computers in schools and libraries.

These videos were posted on PragerU’s YouTube channel that has over two million followers, and now the organization wants the legal system to protect it from what it says is Google’s censorship. Given the company’s power and dominance in the market, they argue, that censorship has become “government-like” – while the tech behemoth nowadays to all intents and purposes operates “a giant public square.”

One of the judges in the case, Jay Bybee, is quoted as saying: “If your representations are correct, it seems deeply disturbing that they put your stuff in the restricted area” – but also adding, “I’m not sure that creates a First Amendment issue.”

Another argument PragerU is making is that YouTube is not a neutral platform allowing “freedom of expression,” and that representing itself as such breaks federal law.

Presenting its arguments before the Seattle court on Tuesday, Google said the videos were demonetized and restricted “not because of any alleged distaste for free-market or socially conservative principles, but due to their thematic content.”

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