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Prager University v. YouTube: Ninth Circuit Dismissal Affirms YouTube’s Status as Private Forum

Reports First Amendment

Prager University v. YouTube, LLC, No. 18-15712 (9th Cir. Feb. 26, 2020).

Is YouTube a public forum?

While Prager University (“PragerU”) sees the video hosting platform as one, the Ninth Circuit recently disagreed. PragerU first introduced the suit in the District Court for the Northern District of California. The lawsuit first began over YouTube’s “Restricted Mode,” an optional feature that viewers can use to filter content that they may not want to view. Some of PragerU’s videos were ultimately not available for viewing under this setting, triggering their lawsuit against YouTube. The conservative website argued that YouTube violated the First Amendment, amongst other claims. Specifically, PragerU’s counsel asserted that YouTube is a public forum and thus moderation and monetization decisions impacting PragerU content constituted restrictions under the First Amendment.

The First Amendment’s state-action doctrine only forbids governmental curtailment of speech, differentiating the government from individual or private entities. Private actors can sometimes qualify as “state actors” if they wield power that generally only belongs to the state. PragerU used this exception by saying that YouTube should be considered a state actor because the website is used for speech. Recent Supreme Court precedent—in Manhattan Community Access Corp v. Halleck, 139 S. Ct. 1921 (2019)—has weighed against this argument, holding that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” In applying the Supreme Court’s precedent, the Ninth Circuit found that YouTube’s creators generate content; YouTube plays the role of a host. As such, the court held that the novelty of this format does not make the platform a state actor.

This lawsuit, and the implications of this ruling, are substantial. As the Los Angeles Times noted, had a First Amendment approach been accepted, online platforms would be unable to create rules through Community Guidelines or Terms of Service. On the other hand, it’s unlikely that complaints of alleged First Amendment violations will disappear despite the ruling. For example, Republican lawmakers in recent months have voiced concerns that YouTube and Facebook routinely “silence” conservative viewpoints on social media in violation of the First Amendment. Legislation has been introduced that would strip companies of Section 230 immunity if they do not prove a lack of bias on social media sites every two years. While the Ninth Circuit’s ruling is clear that YouTube is not a state actor, it might invite further criticism from its detractors.

In a moment when heated discussions are taking place on the role social media companies occupy in society, the Ninth Circuit’s ruling could have an effect on those debates. Discussions among tech executives and lawmakers have turned to the question of whether social media companies are platforms. With this recent decision, the Ninth Circuit has given its stance: yes, they are. This ruling adds weight to social media companies’ stance that they are free to decide how best to handle content on their websites.