A couple of weeks back, I was guest-hosting "Tucker Carlson Tonight" and introduced an interview Tucker had conducted with Dennis Prager, a man for whom I have nothing but the greatest respect: He is blessed with magnificent moral clarity, and an unerring grasp of what's really at stake in the flotsam and jetsam of the daily news churn. Like many of us, Dennis is concerned at the leftward tilt of Big Tech: Facebook and Google/YouTube are bigger and more powerful than many sovereign nations, and in the last decade their malign duopoly has shrunk the Internet from a vast jostling cacophony into a blander, tightly formatted landscape run by a cartel of devious algorithms.
What to do about it? Some (including Facebook's Mark Zuckerberg) favor government regulation - which would turn them into Ma Bell and give them a hammerlock on the 21st century as Bell had for almost the entirety of the 20th. Others (including myself) prefer an anti-trust break-up: If Standard Oil was too big in 1911, both Facebook (as a news outlet) and Google (as a content curator) are far bigger today - and, unlike Esso, there are no Shells, Texacos, BPs or Totals on the horizon.
What I don't get is suing YouTube in order to get them to give your content more prominence than they wish to. That's like me suing Barnes & Noble because I'm on the bottom shelf in the back room rather than in the front window. So, at the end of the Tucker/Dennis segment, I remarked en passant:
Hmm. I hope Dennis has a good lawyer - 'cause that's actually quite a subtle needle his legal team will need to thread there...
It is and they didn't. When Dennis launched his "Prager University" videos, he set out to distill complex issues into five-minute primers that anybody can grasp. He and his colleagues do so brilliantly. Their dazzling compression is the polar opposite of the glib sophistry of third-rate shysters with which so much American legal argument is afflicted. So it is dispiriting that PragerU's skills are nowhere evident in the appallingly slapdash motion that bears his name. Dennis' lawyers rest their case on two pillars - the First Amendment and the 1946 Lanham Act. The latter is to do with "false advertising" and the former is about the state's abridgement of speech. YouTube is not (yet) a government entity nor does it make any quantifiable marketing claims ("Lose up to 18 pounds in the first month!"). So both are a reach, and the perils of advancing First Amendment protections into private institutions far outweigh the benefits: Such a judgment would begin the final destruction of what's left of freedom of association in contemporary America.
But, even if you're in favor, you surely should understand that it's such an audacious legal theory that it requires a strong, tightly argued brief backed up with compelling evidence. PragerU didn't get it, and this week Judge Lucy Koh dismissed Dennis' suit and handed Google/YouTube a total victory. Her Honor was not impressed by his legal team:
The Court finds that Plaintiff's complaint should be dismissed for failure to state any federal claims...
Plaintiff has failed to state a claim under either the First Amendment or the Lanham Act...
The Court does not see how the mere implications that flow from Defendants' decisions to restrict access to some of Plaintiff's videos can constitute 'commercial advertising or promotion' within the meaning of the Lanham Act... Plaintiff lacks statutory standing to assert a Lanham Act false advertising claim...
Like the statements about YouTube's viewpoint neutrality, these representations are vague, general statements about YouTube's services that amount to no more than puffery...
Judge Koh threw PragerU a bone by giving them thirty days to amend their complaint:
Should Plaintiff elect to file an amended complaint curing the deficiencies identified herein, Plaintiff shall do so within thirty days of this Order. Failure to meet this thirty-day deadline or failure to cure the deficiencies identified herein will result in a dismissal with prejudice of the deficient claims.
Which, aside from the setback to Prager U, would be a big heap of res judicata sitting in the way of anybody else with a far better argument against the Big Tech thought-police.
It is truly a tragedy to see nascent conservative outlets blow a sum in the high six-figures on outright legal boobery with no chance of prevailing. The first name on PragerU's motion is Pete Wilson, as in the former California governor, as in just the usual superannuated pol renting his name to the letterhead of whoever can afford him. From his comments on the case, he doesn't seem the guy you'd turn to to figure out a way to frame in the context of American legal precedent a platform so new that it didn't exist a decade ago yet is now a planet-wide behemoth. So I assume the motion is the work of Mr Wilson's trio of Eric M George:
'However,' said Eric George of Browne George Ross, the firm representing PragerU, 'Google and YouTube use restricted mode filtering not to protect younger or sensitive viewers from "inappropriate" video content, but as a political gag mechanism to silence PragerU. Google and YouTube do this not because they have identified video content that violates their guidelines or is otherwise inappropriate for younger viewers, but because PragerU is a conservative nonprofit organization that is associated with and espouses the views of leading conservative speakers and scholars.'
Google does discriminate against conservatives, including myself. But, for example, "restricted mode" also impacts videos from, say, Trevor Noah's "Daily Show". These tech guys are wilier than the lazy arguments advanced at great expense by PragerU's counsel.
The genius of the left in the modern era is to pass off its politics as not political at all, merely the default setting of society: Thus most of the persons who purport to be very concerned about climate change or in favor of not misgendering transitioning grade-schoolers don't even think of those views as political positions. The Internet duopoly of Facebook and Google/YouTube is the ne plus ultra of this technique, and it is hard not to feel embarrassed at a conservative icon throwing his money away on a suit as feebly advanced as this.
As I say, I have an enormous respect for Dennis Prager, who has been one of the indispensable voices of the American right in the 21st century. But conservatism does itself no favors when it allows itself to be suckered by meretricious opportunists grandstanding on thin ice. This is not the way to fight for freedom of expression in an age of Big Tech thought-policing.