Friday, April 27, 2018

PragerU has some odd ideas about the Constitution

PragerU
A screenshot from one of Prager University's anti-Muslim videos
Prager University (which isn't a university) has filed a notice of appeal in its lawsuit against Google; a case that was dismissed in March. PragerU does not like the fact that some of its videos violate YouTube's acceptable use policy and have been removed or restricted. The press release takes us on a journey to the absurd. But first some background:

At the district court PragerU claimed that Google violated its First Amendment rights to free speech and that Google violated the Lanham Act. 

To sustain the First Amendment claim, PragerU asserted that Google was acting on behalf of the state. To make that claim, PragerU was obligated to prove that Google was providing a “public function.” Google would have to be providing a service that was traditionally performed by the state from a very limited number of options. Judge Koh said no.

The Lanham Act violation requires PragerU to demonstrate false advertising. As the judge points out “Plaintiff’s complaint dedicated to the Lanham Act does not identify any specific representations made by Defendants.” In short, Judge Koh said no.

From the press release:
“From the beginning of this process, we've been prepared to pursue our lawsuit against Google/YouTube as far, and for as long as it takes to secure every Americans’ right to freedom of speech and expression online...” 

– Marissa Streit, CEO of PragerU
Gee, thanks Marissa. What would we do without Prager University protecting our rights? As a private company, Google/YouTube is free to establish whatever guidelines it chooses. This makes about as much sense as my suing Stormfront, insisting that I have a right to post to the neo-Nazi site.

The hypocrisy is astonishing. These conservatives claim to be strict constructionists which means that the First Amendment means precisely what it said in 1789:
Congress shall make no law Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
PragerU's opening brief is due at the Ninth Circuit on August 1. Google's reply is due on August 31. This will be a slow walk into 2019. The calculus might be that the notoriety will be of greater value than the legal fees.

PragerU is represented by Peter Obstler at Browne George Ross. Interestingly, in 2001, Obstler was lead counsel in Henkle v. Gregory. Obstler represented a gay kid suing his school district in Nevada. The district paid out $450,000. 17 years later, Derek R. Henkle has had a terrific career and now owns a communications firm in Washington, DC.

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