The proposed class action detailed on this page was dismissed without prejudice on January 6, 2021.
In a 19-page order granting Google and YouTube’s motion to dismiss the case, United States Magistrate Judge Virginia K. DeMarchi ruled that the plaintiffs’ free-speech allegations were precluded by a precedent set earlier in 2020 by the Ninth Circuit, while allowing room for the content creators to amend their false advertising and state law claims by January 20.
The order extensively cites Prager University v. Google, a lawsuit in which the Ninth Circuit in February 2020 upheld a lower court’s dismissal and ruled that Google and YouTube, for the purposes of the First Amendment and despite their ubiquity and public-facing role, do not amount to state actors.
Judge DeMarchi, in addition to turning down the plaintiffs’ First Amendment claims, also rejected their argument that protections offered to Google and YouTube via Section 230 of the Communications Decency Act, the law that shields social media and internet entities from liability for content posted by third-parties, make the companies state actors.
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GlitterBombTV.com, BriaAndChrissy and a group of prominent LGBTQ+ content creators have filed a proposed class action against YouTube and Google over what they say is “systemic and pervasive” discrimination against and suppression of lesbian, gay, bisexual, transgender, transsexual and/or queer YouTubers for the defendants’ own political and financial gain.
“[Google and YouTube] continue to threaten and harm the entire LGBTQ+ YouTube Community by using their unprecedented power over free speech and expression as a pretext to systematically target, suppress, stigmatize, terrorize, steal, and financially harm the video content created or viewed by the LGBTQ+ Community,” the lawsuit out of California’s Northern District reads.
The “Good Censor”: YouTube Backpedals on “Viewpoint-Neutral” Content Handling, Suit Says
YouTube is the largest for-profit forum purportedly dedicated to free speech and expression and reaps upward of $25 billion annually by monetizing content created and consumed by an estimated 2.3 billion users worldwide, the case explains. YouTube and parent company Google represent that all members of the video platform’s community are subject to the same rules, regardless of “the individual user’s particular viewpoint or identity.” But the portrait YouTube paints of its apparent dedication to inclusion, equality and its “Four Freedoms”—of expression, information, opportunity and belonging—is not as rosy or evenhanded as it appears on its surface, the lawsuit says.
The plaintiffs behind the 84-page complaint argue that despite YouTube’s stance that those who use the site are all considered members of a public “YouTube Community” and subject to the same “viewpoint-neutral” content regulations, such freedoms are not afforded to LGBTQ+ YouTubers. Citing a March 2018 internal memo titled “The Good Censor: How can Google reassure the world that it protects users from harmful content while supporting free speech,” the complaint alleges that YouTube has since at least the 2016 presidential election largely abandoned its supposedly viewpoint-neutral position in favor of “a discriminatory and fraudulent profit scheme” that employs “unlawful content regulation, distribution, and monetization practices” that stigmatize, block, demonetize and altogether harm the greater LGBTQ+ community.
Since 2016, according to the complaint, Google and YouTube have wielded “unfettered and absolute discretion” on YouTube content based on “subjective animus, dislike, or commercial bias” with respect to the viewpoints and identities of content creators and/or their intended audiences, such as those who make and consume LGBTQ+ content on the site. In exercising this discretion, YouTube and Google have allegedly taken to branding LGBTQ+ content in a harmful or at least less-than-savory light–regardless of the actual nature of the content. From the lawsuit:
Defendants brand LGBTQ+ content as ‘shocking,’ ‘offensive,’ and/or ‘sexually explicit’ not because of the video’s content, but either because the viewpoints expressed involve what a senior Google/YouTube content curator dubbed the ‘gay thing,’ or because the content was posted by or viewed by YouTube Community members who identify as ‘gay.’”
On the flip side of this coin and in direct violation of its own rules, YouTube, the lawsuit continues, uses its “absolute power and discretion” to monetize, promote and profit from “violent, obscene, and threatening hate speech,” as well as online bullying directed toward the LGBTQ+ community. From the lawsuit:
Defendants’ practice of recommending hate speech videos in conjunction with the displaying of LGBTQ+ related videos discourages and even prevents members of the LGBTQ+ Community from accessing video content which is designed to support, educate and entertain them. While the LGBTQ+ Plaintiffs in this case support the right of all persons to express their viewpoints, Defendants may not restrain, censor, or prevent the LGBTQ+ Community from expressing their viewpoints, especially where Defendants promise everyone a level playing field where the rules apply equally to all.”
“Tool Kit of Unlawful Speech Suppression”: The 14 Ways YouTube Allegedly Restricts the Expression of the LGBTQ+ Community
Describing the defendants’ conduct as “an unlawful attack” on the LGBTQ+ community, the case claims Google and YouTube utilize a “complex and clandestine web” of “broad, overlapping, vague, discriminatory, and unlawful” content-rooted speech regulations, filtering practices, data and information collection and surveillance, video monetization, third-party advertising and content production schemes. This deep, content-regulating framework, the suit alleges, exists merely as a pretext for Google and YouTube to engage in discriminatory practices that the plaintiffs stress “restrain and harm,” not to mention “stigmatize, terrorize” and financially injure, the greater LGBTQ+ community.
Presented in detail in the lawsuit are 14 alleged approaches, referred to as the “tool kit of unlawful speech suppression,” with which Google and YouTube have financially injured, suppressed and otherwise stigmatized the LGBTQ+ community. According to the plaintiffs, Google and YouTube have:
Failed to evenly apply their content regulations and filtering “equally to all”;
Arbitrarily and unfairly censored, removed, suspended, restrained, suppressed or demonetized LGBTQ+ content and channels solely because their proprietors and creators are lesbian, gay, bisexual, transgender, or queer and because they identify as such and use LGBTQ+-related tags in order for viewers to more easily find their content;
Used their absolute control over the platform to “selectively apply” and enforce content regulations and filtering tools in a manner that promotes their own content or that in which the companies have a direct financial interest, including “obscene, violent, and/or homophobic bullying and hate speech”;
Enforced an apparent “company policy” of prohibiting gay users from advertising their content on YouTube, as well as wielded that policy to “stigmatize LGBTQ+ YouTubers and their content” as “shocking” or “sexually explicit” solely because a creator identifies as gay;
Demonetized the content of LGBTQ+ YouTubers, including videos made by community members who “operate and publish content on some of the most popular channels” on the site;
Promoted, distributed and monetized online hate speech, including homophobic slurs, threats of violence and death, calls for the theft and destruction of LGBTQ+ content, and homophobic and threatening video comments that appear in connection with a channel’s content;
Promoted individuals and groups with anti-LGBTQ+ messages by selling advertisements that “undermine, criticize, disparage, or belittle” those in the LGBTQ+ community;
Promoted YouTubers with anti-LGBTQ+ messages or hate speech videos by recommending such videos to the plaintiffs’ and proposed class members’ viewers in the “Up Next” list of recommended videos;
Replaced the customized thumbnail images of LGBTQ+ content creators with generic thumbnail images;
Arbitrarily removed individual subscribers from the list of viewers who have intentionally applied to be affiliated with particular LGBTQ+ YouTube channels;
Unilaterally changed the procedure for new video notifications to be sent to subscribers of LGBTQ+ channels, resulting in scores of subscribers being left unaware as to when new content is posted by LGBTQ+ creators;
Stolen, copied, altered or violated the property rights for the content of LGBTQ+ creators, then used that content to produce and promote their own content in which they have a financial interest;
Excluded LGBTQ+ creators’ original content from YouTube’s “Up Next” video recommendations while at the same time “recommending hate speech or disparaging reaction videos” that steal, copy or alter the content of LGBTQ+ creators; and
Deceptively convinced LGBTQ+ YouTubers and the public that YouTube is dedicated to the freedoms of expression, information, opportunity and belonging while at the same time breaching that commitment in a way that financially and reputationally injures LGBTQ+ creators and consumers.
Further still, the plaintiffs argue that the apparent success YouTube has had of late in suppressing and regulating LGBTQ+ content in the face of its self-established core beliefs has not made the website any safer with regard to prevalent hate speech, racism, and homophobia. According to the complaint, despite YouTube’s many layers of content filtering, the website has grown into “a chaotic cesspool” where “homophobic and racist hatemongers run wild” and have freedom to post “vile and obscene content” on the pages and channels of LGBTQ+ content creators and consumers.
As the lawsuit tells it, the current state of YouTube should come as “no surprise.” From the suit:
…as the record developed to date in this case and other legal proceedings, Congressional testimony, and news reports show, Defendants are engaged in a discriminatory and fraudulent scheme to profit from the unlawful and fraudulent regulation of speech on the platform in which compliant and quality LGBTQ+ content is restrained and demonetized, while vile and dangerous homophobic hate speech is monetized and promoted to further Google/YouTube’s corporate profits and market power.
“Restricted Mode” and Subsequent “Lip Service”
The lawsuit further alleges that LGBTQ+ creators have been improperly censored by YouTube’s “restricted mode.”
Restricted mode was rolled out with the intention of being a tool that limits what younger, more sensitive audiences are able to see when it comes to more “mature” topics. It also aimed to assist schools, libraries and other institutions looking to control what users could view on YouTube. The filtering system, according to the case, operates in tandem with age-based filtering criteria and was meant to block what YouTube considers “mature content” from users under the age of 18.
As the suit tells it, restricted mode is essentially the same as YouTube’s aged-based restrictions with one important difference: whereas age-based filtering blocks content for users under 18 years old, restricted mode blocks access to certain content for all viewers regardless of age or sensitivity. All of this is to say that YouTube, according to the plaintiffs, utilized restricted mode to “block access to content by all viewers, regardless of age or sensitivity, even where the content fully complies” with the site’s community guidelines or age-based restriction criteria.
This is precisely how Defendants have utilized Restricted Mode as a pretext to unlawfully block all viewer access to vast numbers of the LGBTQ+ Plaintiffs’ videos and those of other members of the Proposed LGBTQ+ Class… Indeed, Defendants use Restricted Mode to censor content even though that video content has never been found to violate Defendants’ Age Restrictions or Community Guidelines.”
Critics were particularly vocal about restricted mode, the case continues. The lawsuit says Google and YouTube, in response to complaints from the LGBTQ+ community and civil rights groups, promised to remove all restricted filtering on videos made and posted by LGBTQ+ community members, as well as change their policy, filtering algorithm and manual review procedures to ensure content was not being censored solely on the identity of its maker. Moreover, Google and YouTube, according to the suit, admitted that they had wrongly censored posts from members of the LGBTQ+ community, and blamed the issue on an “engineering problem with filtering tools” that led to certain videos being flagged over others.
The defendants went so far as to appoint a team of senior managers, including YouTube CEO Susan Wojcicki, to meet with LGBTQ+ representatives to consider correcting filtering tools and revising their policies and review protocols, the lawsuit says. In April 2017, Google and YouTube Vice President of Product Management Johanna Wright ensured LGBTQ+ YouTubers that restricted mode would not filter out content on the basis of the gender, gender identity, political viewpoints, race, religion or sexual orientation of individuals or groups. The lawsuit points out, however, that the members of the LGBTQ+ community who met with Google and YouTube’s higher-ups were forced to sign non-disclosure agreements with regard to what was specifically discussed. According to the plaintiffs, Google and YouTube’s promises made behind closed doors were nothing more than lip service made “solely for public relations purposes” and with no intention of being kept. More from the complaint:
Instead of taking LGBTQ+ reports of viewpoint discrimination and selective restrictions on LGBTQ+ content seriously, Ms. Wojcicki spent some of her ‘personal vacation’ time doing carefully scripted PR or ‘selfie’ interviews with selected YouTubers, and other media outlets, in which she boasts that all is well at YouTube, especially with the LGBTQ+ members of the YouTube Community. In one interview, posted only days before the filing of this Complaint, YouTube’s CEO Susan Wojcicki confirmed the importance of and Defendants’ adherence to the ‘Four Freedoms’ of expression, describing those promises to consumers as the ‘Pillars’ of the YouTube platform and global Community it serves. When the interviewer is prompted to ask her scripted questions about reports and concerns of viewpoint- or animus-based censorship and the use of content-based restrictions, Wojcicki pleads executive ignorance of systemic complaints and harms caused by viewpoint bias or animus-based content regulation, filtering tools, monetization restrictions, and promotion of LGBTQ+ harassment and hate speech for profit.”
Capping off the laundry list of alleged content-restricting conduct on the part of YouTube and Google, the plaintiffs group such tools as each serving as “part of a uniform, single, simplistic, and unlawful content-based scheme” meant to “control, regulate, restrain, and harm protected speech.”
Who does the lawsuit look to represent?
The plaintiffs ask the court to certify the following class and subclass:
The YouTube Community Class Is Defined As:All persons or entities in the United States who are or were members, users and or consumers of YouTube who uploaded, posted, or viewed video content on YouTube subject to Google/YouTube’s Terms of Service, Mission Statement, Community Guidelines, and/or any other content-based filtering, monetization, distribution , personal data use policies, advertising or regulation and practices any other regulations or practices that are related to the YouTube Platform on or after January 1, 2015 and continuing through to December 31, 2019 (the “Class Period”). Excluded from the YouTube Community Class are Defendants and their employees, affiliates, parents, subsidiaries, and co-conspirators, whether or not named in this Complaint, and the United States government.
The LGBTQ+ Community Subclass Is Defined As:All persons or entities in the United States who (a) are or were members, users and or consumers of YouTube who uploaded, posted, or viewed video content on YouTube subject to Google/YouTube’s Terms of Service, Mission Statement, Community Guidelines, and/or any other content-based filtering, monetization, distribution , personal data use policies, advertising or regulation and practices any other regulations or practices that are related to the YouTube Platform and (b) are part of protected class of persons under the California or Federal law because of sexual orientation, gender identity, or gender or (c) create, post, distribute, monetize, or advertise video content on the YouTube Platform that discusses or relates to topics, issues or viewpoints that advocate for, are of interest to, or are intended for LGBTQ+ audiences, on or after January 1, 2015 and continuing through to December 31, 2019 (the “LGBTQ+ Subclass Period”). Excluded from the LGBTQ+ Community Subclass are Defendants and their employees, affiliates, parents, subsidiaries, and coconspirators, and any YouTube users who create, post, distribute, promote or engage in video or communications on the YouTube Platform that is directed against the LGBTQ+ Plaintiffs or LGBTQ+ Community and is objectively violent, obscene, threatening, or homophobic as alleged in the Complaint.