In March 2017, filmmaker Sal Bardo started noticing something strange: the views for his short film Sam, which tells the story of a transgender child, had started dipping. Confused, he looked at the other videos on his channel. All but one of them had been placed in restricted mode — an optional mode that screens “potentially mature” content — without YouTube informing him. In July of that year, most of them were also demonetized. One of the videos that had been restricted was a trailer for one of his short films; another was an It Gets Better video aimed at LGBTQ youth. Sam had been shadow-banned, meaning that users couldn’t search for it on YouTube. None of the videos were sexually explicit or profane.
Bardo started digging further into the issue and speaking to other creators, and realized that “a lot of videos that were completely benign were LGBT or tagged LGBT were being targeted,” he tells Rolling Stone. Many of these videos were similar to his, in that they were fairly anodyne. When he saw a post on the YouTube Creators Blog stating that some LGBTQ content creators had been affected by changes in the algorithm, and that the company was aware of the issue and working on it, he was reassured, particularly after he successfully appealed for restricted mode to be lifted off his videos in early 2018. By late 2019, however, most of the content on his channel was restricted again, without any heads-up or explanation from YouTube. He also received an email in September 2019 saying his entire channel had been demonetized because it contained “content isolated for the sole purpose of sexual gratification.”
As a result of this back-and-forth, Bardo says, his revenue from YouTube has dipped about 75% since 2016, and viewership has declined from about 60,000 views a day to 5,000. “My films have played at festivals around the world, but YouTube is the place where I’ve reached the most people. It’s where I get the most eyeballs,” he says. Had his work not been effectively deplatformed, “I can’t really quantify what the impact is or what potential opportunities I’ve could have seen.”
Frustrated, Bardo decided to join an amended suit filed on behalf of LGBTQ content creators against Google and YouTube, alleging discrimination. The initial version of the class-action suit was filed in August 2019, in which five YouTube channels alleged that the platform had unfairly targeted LGBTQ content creators with practices similar to those described by Bardo: demonetizing videos, placing them in restricted mode without warning, and hiding them from search results. The amended suit, filed this week, adds three new plaintiffs, including Bardo, as well as a federal First Amendment claim, according to Peter Obstler, chief counsel for the plaintiffs. It contains comparisons of various videos made by LGBTQ creators, which had been demonetized and/or restricted, to similar ones created by non-LGBTQ creators, which had not. A 2013 demonetized cotton-ball challenge video (a reference to a then-popular viral challenge) by Bria Kam and Crissy Chambers, who run the channel BriaAndChrissy and are listed as plaintiffs on the suit, generated just 71,000 views; while a fully monetized and similar “family cotton ball challenge” garnered more than 750,000.
More to the point, such comparisons constitute what Obstler claims is ample evidence that YouTube is “not filtering content at all. What they’re filtering is the identity of the speakers.” This argument, he argues, runs counter to YouTube’s claim that the Communications Decency Act (CDA) renders it immune from such complaints, as the CDA protects content hosted by platforms and not the identities of creators. According to YouTube spokesperson Alex Joseph, the company denies the claims. “We’re proud that so many LGBTQ creators have chosen YouTube as a place to share their stories and build community,” he wrote in a statement. “All content on our site is subject to the same policies. Our policies have no notion of sexual orientation or gender identity and our systems do not restrict or demonetize videos based on these factors or the inclusion of terms like ‘gay’ or ‘transgender.’ In addition, we have strong policies prohibiting hate speech, and we quickly remove content that violates our policies and terminate accounts that do so repeatedly.”
Obstler is a Yale Law School graduate and ardent free speech advocate with a predilection towards avuncular turns of phrase (“I feel like a million bucks: green and wrinkled,” he recently said by way of a greeting on a recent call). Over the past few years, curbing what he views as YouTube censorship has become something of a rallying cry for Obstler, who argues that actions like demonetization and shadow-banning are disproportionately applied to small third-party creators who are not members of the platform’s partner program, with a distinct focus on members of the LGBT community.
YouTube wields enormous power over not just native content creators whose business models are wholly reliant on the platform, but on independent filmmakers and artists like Bardo, who largely rely on it for exposure. Obstler’s lawsuit contends that because YouTube hosts nearly 95% of all public video-based content, it effectively wields a monopoly over the market, and its powers over small-time creators largely go unchecked. And because YouTube, like other social-media behemoths, has long contended that it is merely a platform and not a publisher, it is largely exempt from the standards and levels of oversight governing traditional media publishers. “We’ve never seen a business model where the model is the monetization and profiting of other people’s speech,” says Obstler. “That’s a fundamental sea change.”
Of course, as a privately owned company, YouTube is under no obligation to allow all forms of speech on its platform, and demonetization or restricting videos on a free user-generated platform is not necessarily tantamount to suppression of free speech. Part of Obstler’s argument is that YouTube’s actions in this regard constitute a contractual violation, as restricting content in any capacity runs counter to YouTube’s claim that it is “viewpoint-neutral.” “You can’t build the largest social media public forum in the world for video content on the premise that you’re viewpoint-neutral and apply that stuff selectively based on viewpoint and identity for whatever reason,” he says.
The argument that YouTube arbitrarily applies its content restrictions is certainly not a new one; indeed, in recent years many lawmakers on the right have argued that YouTube is biased against conservatives, particularly as YouTube has started cracking down on conspiracy theorists, misinformation peddlers, and far-right extremists. And Obstler is somewhat unique in that he has defended plaintiffs against YouTube on both sides of the political spectrum. Prior to the LGBTQ class-action suit, Obstler represented Prager U, a far-right channel that also argued that YouTube had discriminated against it by restricting and demonetizing some of its content.
Many on the left do not view PragerU as the most sympathetic plaintiff. The arch-conservative group has been accused of promoting pro-Trump conspiracy theories and has been referred to as a gateway drug to the far-right. The case was a surprising choice for Obstler himself, who self-identifies as a staunch liberal (or, as he puts it: “I may not be a Bernie bot, but i’m a solid Elizabeth Warren”). But he believes that the Prager U case is representative of a larger issue of YouTube using its immense power to indiscriminately censor content based on a content creator’s identity, thereby violating its own claims of viewpoint neutrality. He classifies PragerU’s content in that category, referring to much of it as “vanilla” and fairly anodyne. (When asked about videos such as “The Charlottesville Lie,” a controversial August 2019 video that falsely refutes the claim that Trump referred to some far-right extremists at the 2017 Charlottesville rally as “very fine” people, and could potentially be viewed as misinformation, Obstler said he hadn’t seen it, but pointed out that Prager “does not purport to be a news organization.”)
“A lot of my friends would say to me, ‘Peter, what are you doing? This is a conservative group,” Obstler says, about representing Prager. “And I’d be like, ‘Guys, this is about the ox getting gored. Think about this: suppose Google and YouTube get sold to Rupert Murdoch and we make a whole bunch of bad laws [saying] they can do whatever to anybody they want. You’re not gonna be too happy about that.'”
Indeed, the first plaintiffs behind the LGBTQ creator class-action, Chris Knight and Celso Dulay, approached Obstler not in spite of his connection with the Prager case, but because of it. The issues central to both suits “seemed so similar,” says Knight, who with Dulay cofounded the website Glitter Bomb TV, which operates the channel GNews! on YouTube. “I could see how there would be issues between the two [political] camps, but we felt really comfortable with him and that’s why we chose him to represent us,” says Knight.
Knight and his husband and cofounder, Celso Dulay, approached Obstler in January of this year, after having struggled with what they claim are YouTube’s arbitrary decision-making processes for years. The final nail in the coffin was a call with Google AdWords in early 2018, after YouTube had barred them from running an ad for the channel’s holiday special, on the grounds that it contained “shocking content.” On the call, a Google AdWords employee can be heard saying that the central issue was the “content about the gays and everything,” and that the AdWords policy prohibited the “gay thing.” Following that incident, YouTube quickly apologized to Knight and Dulay, but the issue of their content being flagged or restricted persisted, prompting them to approach Obstler. “We just kinda got fed up with what was going on in the community,” Knight says.
YouTube is at something of a pivotal point in its evolution: in addition to having to contend with accusations from the right of doing too much to hinder expression on the platform, it must also contend with accusations from the left that it is not doing nearly enough. YouTube is also moving toward cleaning up the platform by reportedly trying to heighten the presence of celebrity and network partners, which creators who have spent years building their brands on YouTube say is increasingly edging them out, regardless of their individual identities. A policy introduced in September that removed verification badges from creators was met with intense backlash from creators of all stripes, prompting YouTube to quickly walk back on the policy rollout.
Obstler believes that the actions YouTube has taken against LGBTQ creators is prompted not by malice, but by the desire to make room for more polished partner content creators on the platform. “I have strong suspicions that it is anti-competitive more than anything else, that it is an attempt to clear the platform of third-party content so they can promote their own,” he says. But this is more supposition than anything else. For LGBTQ creators, many of whom have long viewed the LGBTQ community on YouTube as one of the few supportive places on the internet, the lawsuit can really be boiled down to an attempt on their behalf to regain some control from a platform that they say has increasingly made them feel as if they have none. “After two and a half years of battling them over this and not seeing progress, someone needs to do something,” Bardo says.