Metropolitan News-Enterprise


Thursday, February 27, 2020


Page 1


Ninth Circuit:

YouTube Is Private Entity Not Constrained by First Amendment

Dennis Prager’s Nonprofit That Produces Conservative-Themed Videos May Not Pursue Action in Which It Claims That the Hosting Venue Wrongfully Restricts Access Based on Political Philosophy


By a MetNews Staff Writer


YouTube is a private forum that may ban or limit access to videos, as it pleases, the Ninth U.S. Circuit Court of Appeals held yesterday, affirming the dismissal of an action brought by conservative radio-talk-show host Dennis Prager’s “Prager University.”

The “university” does not hold classes; rather, the San Fernando Valley-based nonprofit produces videos featuring lectures. Its stated mission is to “provide conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored.”

PragerU brought suit in 2017 claiming that YouTube, owned by Google LLC, blocked viewing of 37 of its videos when the “restricted mode” was enabled—as by parents wishing to control content available to their children or employers wanting to limit surfing by employees on company time. YouTube also “demonitized” some of the videos precluding third-party advertising on them from which PragerU would have profited.

PragerU asserted its First Amendment rights were trammeled based on the viewpoint expressed in the videos, while favored treatment was accorded videos on which liberal opinions were expressed. Google insisted it acted objectively based on the topics discussed on PragerU’s videos, including abortion and terrorism.

District Court Action

 District Court Judge Lucy Koh of the Northern District of California on March 26, 2018, held:

“…Defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website.”

She dismissed the federal claims with leave to amend. Four claims under California law were dismissed with prejudice, with the judge explaining:

“Plaintiff s remaining state law claims. This case is still at the pleading stage, and no discovery has  taken place. Federal judicial resources are conserved by dismissing the state law theories of relief  at this stage. Further, the Court finds that dismissal promotes comity as it enables California  courts to interpret questions of state law. This is an especially important consideration in the  instant case because Plaintiff asserts a claim that demands an analysis of the reach of Article I, section 2 of the California Constitution [the free-speech provision] in the age of social media and the Internet.”

Google stood on its complaint, and appealed the dismissal of the federal claims.

McKeown’s Opinion

Affirmance came yesterday in an opinion by Circuit Judge M. Margaret McKeown, who wrote:

“Using private property as a forum for public discourse is nothing new. Long before the Internet, people posted announcements on neighborhood bulletin boards, debated weighty issues in coffee houses, and shouted each other down in community theaters. Juxtaposed with today’s digital platforms, these analog means seem quaint. YouTube. LLC” alone has more than 1.3 billion users—more than 30 million visitors every day—and 400 hours of video uploaded every hour.

“Despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.”

First Amendment’s Limits

 McKeown pointed out:

“The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech.”

PragerU argued that YouTube should be treated as akin to a governmental entity because it performs a “public function.” McKeown said “[i]t is true that a private entity may be deemed a state actor when it conducts a public function,” but said the function must be one of a purely governmental nature, such as operating a company town.

“The relevant function performed by YouTube—hosting speech on a private platform—is hardly ‘an activity that only governmental entities have traditionally performed,’ ” the jurist said, declaring:

“YouTube does not perform a public function by inviting public discourse on its property.”

YouTube’s Declaration

She went on to say:

“Prager’s attempt to foist a ‘public forum’ label on YouTube by claiming that YouTube declared itself a public forum also fails. YouTube’s representation that it is committed to freedom of expression, or a single statement made by its executive before a congressional committee that she considers YouTube to be a ‘neutral public fora,’ cannot somehow convert private property into a public forum. Whether a property is a public forum is not a matter of election by a private entity. We decline to subscribe to Prager’s novel opt-in theory of the First Amendment.…

“Both sides say that the sky will fall if we do not adopt their position. PragerU prophesizes living under the tyranny of big-tech, possessing the power to censor any speech it does not like. YouTube and several amicus curiae, on the other hand, foretell the undoing of the Internet if online speech is regulated. While these arguments have interesting and important roles to play in policy discussions concerning the future of the Internet, they do not figure into our straightforward application of the First Amendment. Because the state action doctrine precludes constitutional scrutiny of YouTube’s content moderation pursuant to its Terms of Service and Community Guidelines, we affirm the district court’s dismissal of PragerU’s First Amendment claim.”

False Advertising

PragerU also alleged false advertising by YouTube, in contravention of the Lanham Act.

McKeown said that statements by YouTube about its moderating policies were not promotional in nature, and were therefore outside the ambit of the act. Rendering videos unavailable when the restricted mode was enabled did not constitute an implied characterization of the videos as unsuitable, she wrote.

“YouTube’s braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act,” the judge continued. “Lofty but vague statements like ‘everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories’ or that YouTube believes that ‘people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities’ are classic, non-actionable opinions or puffery.”

The case is Prager University v. Google LLC, 18-15712.

State Action

Santa Clara Superior Court Judge Brian Walsh last November sustained a demurrer, without leave to amend, to PragerU’s first amended complaint, holding:

“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. However, Prager does not allege that it has been denied access to the core YouTube service. Rather, it urges that its access to ‘Restricted Mode’ and YouTube’s advertising service has been restricted. Prager does not persuade the Court that these services 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 U has appealed to the Sixth District Court of Appeal.


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