YouTube this week was hit with a new lawsuit claiming the company systematically discriminates against videos created by lesbian, gay and transgender posters.  

Eight LGBTQ+ YouTube creators claim that content they’ve uploaded to Google’s video platform has been restricted and demonetized, denying them the opportunity to draw advertising because their video has been deemed by the site’s algorithms and moderators as “shocking,” “inappropriate,” “offensive” or “sexually explicit.” 

The suit, which seeks to certify a class of LGBTQ+ YouTubers, pits the company with a familiar foe: bicoastal litigation boutique Browne George Ross.

Lawyers from Browne George Ross sued YouTube and Google in 2017 on behalf of Prager University, a nonprofit digital media outfit co-founded by conservative talk show host Dennis Prager, claiming that the companies discriminated against videos that offer conservative commentary on current and historical events. 

District Judge Lucy Koh of California’s Northern District dismissed the First Amendment claims in the PragerU case last year, finding that the conservative outlet had failed to show that YouTube was a “public forum” controlled by a “state actor.” Koh remanded the remaining state law claims to state court, where they’re pending before Santa Clara Superior Court Judge Brian Walsh. Browne George Ross’s Peter Obstler will be asking the U.S. Court of Appeals for the Ninth Circuit to revive PragerU’s First Amendment claims in an appeal set for oral argument later this month.

Peter Obstler (Courtesy photo)

Obstler and his team landed the PragerU case due to the long-standing relationship between Dennis Prager and former California Gov. Pete Wilson, who is of counsel at Browne George Ross, whereas the new case came to the firm after plaintiff’s Chris Knight and Celso Dulay reached out directly to Obstler. Knight and Dulay, who are a married couple, covered a string of complaints from content creators about YouTube discrimination on their LGBTQ+ news show “GlitterBombTV.”

The issue came to a head for Knight in a phone conversation with Google representatives after the company refused to allow the show to buy advertisements promoting the program’s special Christmas episode. In a recorded conversation, a manager who spoke with Knight said that the video had contained “shocking” content, adding that “the major reason is because of the gay thing.” 

YouTube has maintained that its policies don’t single out content related to sexual orientation or gender identity and that its systems don’t restrict or demonetize videos based on the inclusion of terms like “gay” or “transgender.” But Knight and Obstler say that the plaintiffs in the new case have conducted experiments—posting two versions of the same innocuous video, one tagged with keywords like “gay” and “transgender” and one without. They claim that the tagged videos get flagged in ways that prevent them from generating ad revenue and those without the keywords do not.

“We’re hoping at some point to sit down with them,” says Knight of YouTube and Google. “We really care about the community and want to drive systemic change through the lawsuit.”

Adds Obstler, “We’re not doing this to get rich.” 

“We’re doing this to test the applications of [the Communications Decency Act] and the breach of a fundamental consumer contract,” he said. “They’re taking our clients’ content. They monetize the content and monetize the data from the engagement with it.”

“The deal is they will treat everyone the same with viewpoint-neutral rules that apply equally to all.”