Prager University's YouTube videos.

SAN JOSE—A California state court judge is poised to reject a conservative content creator's claims that YouTube functions as a public forum, and therefore, must protect free speech rights. 

Prager University, a nonprofit founded by conservative media personality Dennis Prager, claimed YouTube's censorship policies violate California's Unruh Act, the Lanham Act, and the state constitution's speech and association statutes, according to the first amended complaint filed in May.  

Before a completely full hearing Friday, Judge Brian Walsh of Santa Clara Superior Court issued a tentative ruling denying Prager's motion for preliminary injunction and dismissing without leave to amend.

Prager's lawyers at Browne George Ross had asked the court for a preliminary injunction to prohibit the platform from "capriciously restricting, demonetizing, or otherwise censoring" its uploads. Prager claimed YouTube's criteria for restricting videos, a designation that hides videos when institutions such as schools and workplaces turn on "Restricted Mode" and determines when videos can generate advertising revenue, is vague and overly broad. Limiting access to Prager videos constitutes a "state action" burdening the organization's free speech, Prager's counsel wrote in its motion for preliminary injunction. 

In a tentative ruling issued before Friday's hearing, Walsh wrote that "it is apparent" that Prager does not state a claim under the California Constitution. "Prager contends that 'YouTube is the cyber equivalent of a town square where citizens exchange ideas on matters of public interest' and that defendants have opened their platform to the public by advertising its use for this purpose," he wrote. "However, Prager does not allege that it has been denied access to the core YouTube service."

Walsh wrote he was not persuaded that YouTube's unrestricted mode and advertising platform "are freely open to the public or are the functional equivalent of a traditional public forum like a town square or a central business district."

Prager claimed that YouTube has restricted or demonetized videos such as "Gender Identity: Why All the Confusion?" and "Radical Islam: The Most Dangerous Ideology."

In YouTube's notice of demurrer, the company's lawyers at Wilson Sonsini Goodrich & Rosati asserted that Section 230 of the Communications Decency Act as well as the company's First Amendment rights protect it from Prager's claims and allow the platform to make editorial decisions about its content. 

PragerU argued that applying Section 230 in this case would disfigure the law. "Employing Section 230 as YouTube insists enabling it to suppress all speech for any reason or for no reason, however unlawful, insidious, or improper, would transform Section 230 from properly-tailored balancing of free speech interests into state court-enforced heckler's veto on constitutionally-protected speech, a clear Violation of the First Amendment," Prager's counsel wrote in support of its preliminary injunction.

Walsh, who attentively listened during the hearing and asked very few questions, decided that Prager did not back up its case for an exemption from Section 230 with relevant case law.

"While Prager contends that section 230(c)(1) immunity should not be applied where a plaintiff alleges a service provider acted in bad faith or to stifle competition, it cites no persuasive authority adopting this interpretation," the judge wrote. 

Brown George Ross' Peter Obstler is also representing Prager in a federal case pending before the U.S. Court of Appeals for the Ninth Circuit, where he argued that YouTube's domination in online video grants it public forum status and the burden to protect free speech, similar to the "company town" premise formulated in the U.S. Supreme Court decision in Marsh v. Alabama.

The state court complaint notes another lawsuit Obstler has helped wage against YouTube. The hosts of LGBTQ news show "Glitter Bomb TV" sued YouTube in the U.S. District Court for the Northern District of California after its videos had been restricted and demonetized for "shocking" content. 

"The same vague and discretionary content filters and regulations which discriminate against consumers based on sexual orientation of the speaker or their viewpoint is also applied to censor and financially harm other legitimate users and consumers based upon their political identity, religious beliefs and viewpoints, like PragerU," Prager's lawyers wrote. 

Obstler said at Friday's hearing that the Glitter Bomb TV case is going to "push the limit on the CDA." 

"If that court rules differently in that case, we're going to be back here," he told Walsh.  

Ahead of the hearing, PragerU went on a press blitz. A crowd of young conservatives gathered Friday morning in front of the courthouse to tell YouTube that they cannot be silenced. Earlier in the week, Prager took its message on the road with a box truck playing PragerU's restricted videos that made pit stops in front of big tech company headquarters in Silicon Valley. The strategy seemed to pay off with every seat in the courtroom full, with more people waiting outside the courtroom and listening to PragerU's livestream on their phones.

Protesters gather in front of the Superior Court of Santa Clara County in San Jose for a Prager University press conference. (Photo: Alaina Lancaster)

In closing, Walsh said both sides had "excellent arguments." 

"I don't like excellent arguments, because they make me have to think harder," he said. 

He also thanked the audience for coming and for restoring his faith that people can be civil to one another. 

If Walsh holds his tentative ruling, Obstler said in an interview after the hearing that he'll appeal the case to the Sixth District Court of Appeal.