Illustration by Alex Castro / The Verge
The fight between a group of LGBTQ YouTube creators and the video platform’s parent company, Google, over censorship faced its first real test on Tuesday as a California court heard arguments from both groups to determine whether the case should be dismissed.
Several YouTubers filed a lawsuit in August 2019 claiming that YouTube’s algorithm suppresses recommendations and makes it difficult to earn ad revenue. The company denies it discriminates against creators. The original lawsuit claims that YouTube uses “unlawful content regulation, distribution, and monetization practices that stigmatize, restrict, block, demonetize, and financially harm the LGBT Plaintiffs and the greater LGBT Community.” The lawsuit alleges LBGTQ personalities are being treated unfairly and in an unconstitutional manner because of both the content in their videos and the fact that they identify as queer creators.
Google disputes those claims, saying the platform’s distribution algorithms are protected by Section 230 of the Communications Decency Act. “We have a statue that is not content-based,” Brian Willen, lead counsel for Google in the case, argued during the hearing, adding that “under Section 230, you can’t be treated as a publisher for any speech.”
Divino Group’s Peter Obstler, who is acting as the lead attorney representing several YouTubers in the case, claims that YouTube (and therefore, Google) isn’t protected by Section 230 because the statute is unconstitutional.
A few weeks ago, the Department of Justice intervened to defend the statute, essentially siding with Google and asking the court to dismiss the case. The department argued that Section 230 doesn’t limit content that YouTubers can upload to YouTube, and YouTube also isn’t preventing creators from uploading.
“We’re alleging that the computer code in the machines is discriminatory,” Obstler tells The Verge. “And that Google is embedding data into people’s YouTube posts that allows the filtering machine to basically filter the content not based on anything they said, but based on whether they’re LGBTQ creators.”
In a slightly ironic turn of events, a new executive order from President Donald Trump is now being used by Obstler to further argue his case. Trump is seeking to revoke Section 230 after a public fight with Twitter over the moderation of his tweets, something Obstler refers to as a “new wrinkle” in the case.
“On Thursday, Donald Trump issued an executive order instructing the Department of Justice to apply the statute in a way that we are arguing,” Obstler tells The Verge. “It does appear that the Justice Department — at least in my opinion — has taken a position in this case that is entirely inconsistent with Trump’s executive order.”
Google’s Willen argued in Tuesday’s hearing that “the executive order has nothing to do with this issue,” adding that it has “no bearing on these issues.” Indraneel Sur, a trial attorney for the Justice Department, added that “at most the executive order indicates important policy issues within the general realm of section 230” but agreed that didn’t impose any significant status on the current case.
At the heart of this debate is a complex discussion about platform governance, but the YouTubers who filed the lawsuit are looking for more direct responses and answers from the website they use to generate income. Stephanie Frosch, a queer YouTuber with close to 370,000 subscribers, was earning approximately $23,000 a year from YouTube in 2009. Now, Frosch tells The Verge she’s “lucky if I get $100 a month.”
Frosch has long fought against YouTube. She brought up a number of documented incidents where queer creators’ content has faced heavy restrictions and the ongoing monetization problems videos from LBGTQ personalities face while at an invite-only creators summit in 2017. Frosch tells The Verge, and stated in her declaration submitted to the courts, that YouTube employees acknowledged there were problems they needed to fix, but three years on, Frosch says things are worse than ever.
“Twenty years ago, this kind of entertainment and media platform didn’t exist,” Frosch says. “They do have immunity for certain things, but I think it needs to be amended to be in the people’s best interest. There’s a difference between regulating and discriminating, and that’s what we need to make apparent. I’m really hopeful that the judge will look at that, because while legalities are essential to any ruling, empathy and justice are the backbone.
“I really hope that this goes beyond the text that is written, and that needs to be amended as is, and goes to what is the right and moral thing to do to make an equal opportunity playing field for everyone.”
The decision on whether the case is dismissed now sits with a judge. If the case is dismissed, Obstler will take it to the ninth circuit and appeal.
“It’s not publishing; it’s discrimination in publishing,” Obstler says. “And I don’t think publishers get to discriminate under the law.”