Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 1 of 43 BROWNE GEORGE ROSS LLP 1 Pete Wilson (State Bar No. 35742) [email protected] 2 Eric M. George (State Bar No. 166403) [email protected] 3 2121 Avenue of the Stars, Suite 2800 Los Angeles, California 90067 4 Telephone: (310) 274-7100 Facsimile: (310) 275-5697 5 BROWNE GEORGE ROSS LLP 6 Peter Obstler (State Bar No. 171623) [email protected] 7 David S. Wakukawa (State Bar No. 262546) [email protected] 8 101 California Street, Suite 1225 San Francisco, California 94111 9 Telephone: (415) 391-7100 Facsimile: (415) 391-7198 10 Attorneys for Plaintiff PRAGER UNIVERSITY 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 PRAGER UNIVERSITY, Case No. 15 Plaintiff, COMPLAINT FOR DAMAGES, 16 INJUNCTIVE RELIEF, AND vs. DECLARATORY JUDGMENT 17 GOOGLE INC., a Delaware corporation, 18 YOUTUBE, LLC, a Delaware limited liability company, and DOES 1-25, JURY TRIAL DEMANDED 19 Defendants. 20 Trial Date: None Set 21 22 23 24 25 26 27 28 957999.1 Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 2 of 43 1 Plaintiff Prager University (“PragerU”) brings this complaint for damages and equitable relief 2 against Defendants YouTube, LLC (“YouTube”) and its parent company, Google Inc. (Google), 3 collectively referred to as “Google/YouTube” or “Defendants,” unless otherwise specified. 4 INTRODUCTION AND PREFATORY STATEMENT 5 1. PragerU brings this lawsuit to stop Google/YouTube from unlawfully censoring its 6 educational videos and discriminating against its right to freedom of speech solely because of 7 PragerU’s political identity and viewpoint as a non-profit that espouses conservative views on current 8 and historical events. Google/YouTube have been discriminating and censoring, and continue to 9 discriminate and censor educational videos uploaded or posted to the YouTube platform through the 10 arbitrary and capricious use of “restricted mode” and “demonetization” viewer restriction filters that 11 purportedly are intended to prohibit or limit access of “inappropriate” content to prospective public 12 viewers based on certain viewer characteristics, including the age of the viewer. 13 2. Google/YouTube operate the largest forum for the general public to participate in 14 video based expression and exchange of speech in California, the United States, and the world. 15 Indeed, Google/YouTube has created the largest forum for video based speech by members of the 16 general public in the history of the United States and the world. The total number of people who 17 currently use the YouTube service exceeds 1.3 billion people and more than 30 million members of 18 the general public visit the platform every day. Four hundred (400) hours of videos are uploaded to 19 the service every hour and the total number of hours in which people watch videos on YouTube is 20 estimated to be 3.25 billion. One report estimated that 10,113 YouTube videos generated over 21 1 billion views and the average number of mobile YouTube views is estimated to be about 1 billion 22 per day and YouTube videos can be navigated in at least 76 different languages. Indeed more video 23 content has been uploaded to Google/YouTube by public users than has been created by the major 24 U.S. television networks in 30 years. 25 3. In so doing, Google/YouTube hold YouTube out to the public as a forum intended to 26 defend and protect free speech where members of the general public may speak, express, and 27 exchange their ideas. YouTube plays a role of a public forum where, based on the number of views, 28 957999.1 -2- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 3 of 43 1 likes, and subscriptions, new celebrities emerge and new ideas are popularized. And 2 Google/YouTube have represented that their platforms and services are intended to effectuate the 3 exercise free speech among the public. According to Google/YouTube “voices matter” and YouTube 4 is “committed to fostering a community where everyone’s voice can be heard.” 5 4. As applied to PragerU, Google/YouTube use their restricted mode filtering not to 6 protect younger or sensitive viewers from “inappropriate” video content, but as a political gag 7 mechanism to silence PragerU. And Google/YouTube do this not because they have identified video 8 content that violates their guidelines or is otherwise inappropriate for younger viewers, but because 9 PragerU is a conservative nonprofit organization that is associated with and espouses the views of 10 leading conservative speakers and scholars. This is speech discrimination plain and simple: 11 censorship based entirely on the perceived identity and political viewpoint of the speaker not on the 12 content of the speech. Google/YouTube’s use of restricted mode filtering to silence PragerU violates 13 its fundamental First Amendment rights under both the California and United States Constitutions, 14 constitutes unlawful discrimination under California law, is a misleading and unfair business practice, 15 and breaches the warranty of good faith and fair dealing implied in Google/YouTube’s Terms of Use, 16 including their guidelines and policies for restricted access filtering of video content. 17 5. Furthermore, Google/YouTube’s purported use of vague, overbroad, and subjective 18 criteria, including YouTube’s Terms of Use and Community Guidelines, to justify their censorship 19 decisions constitute facially invalid restrictions on speech that lack objective criteria, are misleading, 20 and/or are discriminatory, and, as a result, allow Google/YouTube to censor or restrict political 21 speech at their whim based purely their subjective beliefs, political animus, and unfettered and 22 unbridled discretion in violation of federal and state law. 23 6. And while Google/YouTube may lawfully regulate or restrain speech in certain 24 circumstances to the extent that such restrictions constitute reasonable and objective time, manner, 25 place restrictions that comport with federal and California legal standards for the regulation of 26 speech, it may not do so at will without any restrictions or in an arbitrary or capricious manner that 27 provides them with unbridled discretion to discriminate against a speaker based on her or his identity 28 957999.1 -3- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 4 of 43 1 or political viewpoint. Nor can Google/YouTube rely on criteria, like their Terms of Use or 2 Community Guidelines, that are so vague, broad, or undefined that they may serve or be used as a 3 pretext to censor or discriminate against speakers because of a bias or animus towards political 4 identity or viewpoint. 5 7. PragerU is an educational nonprofit founded in 2011 by Dennis Prager, a conservative 6 talk show host. Its mission is to provide educational and news based platforms to promote open and 7 balanced discussions of historical or current issues from a conservative perspective. There is 8 absolutely nothing “inappropriate” about the content of the PragerU videos censored by 9 Google/YouTube. The videos utilize news interview or animation formats to discuss current and 10 historical events and issues, including, by way of example only, discussions of the history of the 11 Korean War, legal decisions by courts including landmark rulings of the United States Supreme 12 Court, and trending current events such as foreign affairs, male-female differences, environmental 13 issues and other topics discussed on university campuses. The videos do not contain any profanity, 14 nudity, or otherwise inappropriate “mature” content. The censored videos fully comply with the 15 letter of YouTube’s Terms of Use and Community Guidelines. 16 8. As set forth below, a review and comparison of Prager U’s videos with unrestricted 17 videos produced and posted by other groups with different political identities shows that 18 Google/YouTube’s use of restricted mode filtering to censor PragerU is arbitrary, capricious, and 19 bears no relationship to the actual content of the videos. Indeed, one need only compare the censored 20 PragerU videos with those that are produced by speakers with different political identities or 21 viewpoints to understand just how arbitrary and discriminatory Google/YouTube’s conduct is. To 22 that end, a table1 comparing the content and subject matter of the censored PragerU videos with 23 uncensored videos discussing the same issues by speakers and channels like Crash Course, NowThis, 24 AJ+ (Al Jazeera), Buzzfeed, Bill Maher, TedTalkx, the History Channel, and many others, some of 25 1 For convenience, two “Tables of Comparison” are embedded in Paragraphs 70 and 72, respectively 26 each of which provides a summary of the subject matter of both censored PragerU videos and non- censored videos from other speakers along with website hyperlinks that allow the reader to view and 27 compare the full content of the respective videos. 28 957999.1 -4- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 5 of 43 1 which contain profanity and graphic depictions of mature content, leaves little doubt that 2 Google/YouTube are not restricting PragerU’s videos because of noncompliance with any guidelines 3 or terms of use, but are discriminating against and censoring PragerU because of its political identity 4 or viewpoint not the content of its speech. 5 9. Since the inception of Google/YouTube’s censorship of PragerU videos, first 6 discovered by PragerU staff members in July 2016, Google/YouTube have failed to offer any 7 reasonable or consistent explanation for why the content of those videos is subject to restricted 8 content filtering. Instead, Google/YouTube have repeatedly stated that Google/YouTube’s automatic 9 filtering search algorithm and their “review teams” have flagged some unspecified or unidentified 10 video content as “inappropriate.” This is telling because despite the existence of purported guidelines 11 and criteria utilized by both the algorithm and review teams, Google/YouTube’s censoring criteria are 12 intentionally vague, undefined, and broad and are designed to allow it to exercise unfettered, 13 unilateral, unbridled, and purely subjective discretion as to what is and is not appropriate. In so 14 doing, Google/YouTube are censoring PragerU’s videos not based on any objective finding of 15 inappropriate material, but on their purely subjective perception of what theydeems politically correct 16 and incorrect. In short, Google/YouTube created a purely subjective and unspecific criteria for 17 determining what is and is not appropriate in order to justify censorship based not on content, but the 18 political viewpoint and perceived identity of the speaker. 19 10. PragerU is not the first video blogger or “vlogger” to be discriminated against by 20 Google/YouTube because of the speaker’s perceived identity. On March 19, 2017, Google/YouTube 21 publicly admitted that they improperly censored videos using their restricted mode filtering that were 22 posted or produced by members of the LGBTQ community based on the identity and orientation of 23 the speaker rather than the content of the video. In response to complaints from the LGBTQ 24 community and other civil rights critics, Google/YouTube removed all restricted filtering on videos 25 posted or produced by LGBTQ members and groups, and changed their policy, filtering algorithm, 26 and manual review policies to ensure that videos posted by LGBTQ vloggers were not being censored 27 solely because of the identity of the speaker. 28 957999.1 -5- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 6 of 43 1 11. Such a censorship regime cannot pass muster under the First Amendment and is 2 discriminatory and unlawful under California law. Among other things, it provides Google/YouTube 3 with unfettered and unbridled discretion to impose their own political views and values on speakers 4 without any objective criteria for evaluating what is and is not appropriate and thereby censors speech 5 based on animus towards the speaker’s political viewpoint rather than the appropriateness of the 6 content of the video. It also constitutes intentional discrimination by Google/YouTube based on the 7 religious, political, or sexual orientation beliefs of the speaker. It also violates the warranty of good 8 faith and fair dealing implied in the Terms of Use and video posting guidelines and policies that 9 PragerU was required to agree to in order to use the YouTube site. And they do all of this in 10 connection with their control and management of what is arguably the largest public forum for the 11 expression and exchange of ideas and speech that has ever been available to the public in California, 12 the United States, and ultimately the world—one to which Google/YouTube invite the public to 13 express themselves in all manner of speech, and to engage with such speech through viewing and 14 commenting. 15 12. Despite telling the public that Google/YouTube “products are platforms for free 16 expression,” no such good faith treatment has been afforded PragerU. PragerU has endeavored with 17 patience and civility to navigate the red tape process for removing restricted filtering. PragerU has 18 fully complied with Google/YouTube’s demands that PragerU formally seek reconsideration of the 19 “inappropriate” designation of its videos. To that end, PragerU in good faith provided 20 Google/YouTube with specific examples of its videos along with comparisons of other similar 21 material that do not share an inappropriate designation from other producers. As of this date, 22 however, at least 37 PragerU videos continue to be censored by restricted mode filtering. And when 23 it requested that Google/YouTube treat these and other videos in the same manner as those from other 24 vloggers, including those of LGBTQ vloggers, Google/YouTube refused, on the pretextual ground 25 that manual reviewers had determined that educational content ranging from the legal creation of 26 Israel and the history of the Korean War to the idea of diversity of thought on college campuses 27 contained “inappropriate content.” 28 957999.1 -6- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 7 of 43 1 13. That finding is absurd, arbitrary, capricious, and devoid of any rational basis. When 2 compared with the litany of unrestricted videos posted by other speakers that contain similar or 3 identical content and differ only in the perspective or identity of the speaker, Google/YouTube’s 4 censorship of PragerU videos smacks of discrimination and animus arising solely from the political 5 identity and perspective of its speakers, some of whom are identified with and espouse views and 6 analysis that are considered to be “conservative” on the American political spectrum. 7 14. Not only is Google/YouTube’s censorship not based on the content of the PragerU 8 videos but the “inappropriate” designation falsely and unfairly stigmatizes PragerU. It renders 9 prospective viewers ineligible to watch PragerU programming from public as well as private 10 workplace or home computer stations. It prevents access to educational content by students whose 11 computer use may be subject to parental controls intended to shield the student from truly 12 inappropriate material, not political or educational discourse of current or historical events. It 13 precludes PragerU from receiving any revenue from advertisements that would otherwise accompany 14 content not designated as “inappropriate.” And it allows Google/YouTube’s virtual monopoly power 15 over video posting and viewership market to manipulate, bully, and falsely denigrate legitimate 16 political and educational speakers by subjectively designating their speech as “inappropriate,” solely 17 because Defendants do not like or agree with speakers’ political identity or point of view. 18 15. This is free speech discrimination: censorship based not on the content of the speech 19 but the perceived identity and viewpoint of the speaker. The law categorically prohibits this type of 20 identity and viewpoint based discrimination and censorship. And the fact that this discrimination 21 emanates from a company that holds itself out to the public as a committed defender and protector of 22 free speech makes Google/YouTube’s conduct that much more unacceptable and dangerous. In sum, 23 Google/YouTube’s use of their unfettered power over the worldwide web to censor the thoughts and 24 speech of speakers based solely on their political identity or viewpoint is legally indefensible and 25 violates the California and United States Constitutions, unfair business practice laws, and their 26 policies and terms of use. 27 28 957999.1 -7- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 8 of 43 1 PARTIES 2 16. Plaintiff PragerU alleges and incorporates all preceding allegations as fully set forth 3 above in paragraphs 1 through 15. 4 17. Plaintiff PragerU is an educational 501(c)(3) nonprofit company with its principal 5 place of business in the Los Angeles County, California. 6 18. Defendant Google Inc. is a for profit, public corporation incorporated under the laws 7 of the State of Delaware, with its principal place of business in Mountain View, California and 8 regularly conducts business throughout California, including Santa Clara County. PragerU is 9 informed and believes, that at all relevant times, Defendant Google Inc. acts as an agent of Defendant 10 YouTube, LLC, and controls or participates in controlling and restricting speech on the YouTube 11 service or platform. 12 19. Defendant YouTube, LLC is a for profit limited liability corporation, wholly owned by 13 Google Inc., and organized under the laws of the State of Delaware. YouTube’s principal place of 14 business is Mountain View, California and it regularly conducts business throughout California, 15 including Santa Clara County, California. Defendant YouTube, LLC operates the largest and most 16 popular internet video viewer site, platform, and service in California, the United States, and the 17 world and holds itself out as one of the most important and largest public forums for the expression of 18 ideas and exchange of speech available to the public. PragerU is informed and believes that at all 19 relevant times Defendant YouTube, LLC acts as an agent of Defendant Google Inc. and uses, relies 20 on, and participates with Defendant Google Inc. in restricting speech on the YouTube site, platform, 21 or service. 22 20. The true names and capacities, whether individual, corporate, associate, or otherwise, 23 of Defendants Does 1 through 25, inclusive, are presently unknown to Plaintiff, and for that reason 24 these defendants are sued by such fictitious names. Plaintiff is informed and believes and thereon 25 alleges that each of the Doe defendants is in some way legally responsible for the violations of law 26 and injuries and harm caused as alleged herein. If and when appropriate, Plaintiff will seek leave of 27 court to amend this complaint when the true names and capacities of said defendants are known. 28 957999.1 -8- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 9 of 43 1 21. Plaintiff is informed and believes and thereon alleges that at all times herein 2 mentioned, each of the defendants was the agent and representative of the other defendants, acting 3 within the purpose and scope of said agency and representation, and that each of the defendants was 4 and is authorized to ratify and undertake the conduct of each of the other defendants as alleged herein. 5 JURISDICTION AND VENUE 6 22. Plaintiff PragerU alleges and incorporates all preceding allegations as fully set forth 7 above in paragraphs 1 through 21. 8 23. This Court has jurisdiction over this matter because Defendants transacted business 9 and committed the acts complained of herein within Santa Clara and Los Angeles Counties, during 10 the times referenced herein, and the contract at issue was largely performed in California, including 11 Santa Clara County. 12 24. This is a civil action arising under the First Amendment of the Constitution of the 13 United States, as subsequently set forth, and this court has jurisdiction of this action by reason of 28 14 U.S.C. §§ 1331, 1338, 1343, and 42 U.S.C. §§ 1983, 1985, and 1988. This Court may award Plaintiff 15 declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 1983, 2201- 16 02, Rule 65 of the Federal Rules of Civil Procedure, and this Court’s inherent equitable jurisdiction. 17 The court has supplemental jurisdiction over the remaining claims under 28 U.S.C. § 1367. 18 25. Venue is proper in this judicial district pursuant to the forum selection clause set forth 19 in the Terms of Use issued by Google/YouTube and 28 U.S.C. § 1391(b) because a substantial part of 20 the events giving rise to the claims raised in this lawsuit occurred in this district, and because all 21 Defendants are located in and operate in Santa Clara and Los Angeles Counties. 22 FACTS COMMON TO ALL CLAIMS 23 26. Plaintiff PragerU alleges and incorporates all preceding allegations as fully set forth 24 above in paragraphs 1 through 25. 25 27. Google/YouTube control and regulate the world’s largest forum in which the public 26 may post and watch video based content and information for free. Consistent with their express 27 “mission [] to organize the world’s information and make it universally accessible and useful,” 28 957999.1 -9- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT Case 3:17-cv-06064 Document 1 Filed 10/23/17 Page 10 of 43 1 Google/YouTube provide a forum for members of the public to connect, inform, and inspire others 2 across the globe and acts as a distribution platform for original content creators, viewers, and 3 advertisers large and small. YouTube is one of the top three most visited websites globally, (along 4 with Facebook and Google) and, as of 2017, the site effectively controls and regulates an internet 5 forum used by over one billion users each month—almost one out of every two people on the 6 Internet. Eighty-five percent (85%) of the U.S. internet audience watches videos online and more 7 than 500 million hours of videos are watched on YouTube each day. Indeed more video content has 8 been uploaded to Google/YouTube by public users than has been created by the major U.S. television 9 networks in 30 years. 10 28. In so doing, YouTube holds itself out as the largest public forum for video based 11 speech in California, the United States, and the world. YouTube plays a role of a public forum 12 where, based on the number of views, likes, and subscriptions, new celebrities emerge and new ideas 13 are popularized. Indeed, on its own “Official Blog,” YouTube has itself stated that its “mission” is to 14 “give people a voice” in a “place to express yourself” and in a “community where everyone’s voice 15 can be heard.” In totality, YouTube claims to be “one of the largest and most diverse collections of 16 self-expression in history,” giving “people opportunities to share their voice and talent no matter 17 where they are from or what their age or point of view.” See, e.g., https://youtube.googleblog.com/ 18 (YouTube Official Blog: Broadcast Yourself). 19 29. Despite their control and regulation of one of the largest forums for public speech and 20 expression in California, the United States, and the world, Google/YouTube regulate and censor 21 speech as if the laws governing free speech and commerce do not apply to it. In so doing, Defendants 22 believe that they have unfettered, unbridled, and unrestricted power to censor speech or discriminate 23 against public speakers at their whim for any reason, including their animus toward and political 24 viewpoints of their public users and providers of video content, because Defendants are for profit 25 organizations rather than governmental entities. 26 30. Google/YouTube are wrong. As the California Supreme Court has stated: “[t]he idea 27 that private property can constitute a public forum for free speech if it is open to the public in a 28 957999.1 -10- Case No. COMPLAINT FOR DAMAGES, INJUNCTIVE RELIEF, AND DECLARATORY JUDGMENT