(CN) – Lawyers for Google and the website Prager University squared off before a Ninth Circuit panel Tuesday over whether YouTube censors the conservative platform in violation of the First Amendment.
Founded by talk show host Dennis Prager, Prager University sued YouTube owner Google in October 2017 for flagging many of its videos as containing mature content and cutting off video access to viewers browsing in restricted mode. In its lawsuit, Prager University puts the list of restricted videos at over 50.
U.S. District Judge Lucy Koh dismissed the case in March 2018, finding YouTube does not constitute a “state actor” subject to the First Amendment.
On appeal, Prager University’s attorney Peter Obstler argued Tuesday that YouTube has designated itself a public forum, noting it controls 95% of public video engagement worldwide.
“Private parties absolutely have the right to operate video platforms and they would not be state actors. What makes this case different is the affirmative designations of the platform as a public forum for freedom of expression, and for freedom of information,” Obstler said.
He pointed to Marsh v. Alabama, a 1946 U.S. Supreme Court ruling in which the justices found a company-owned town could not stop a member of the Jehovah’s Witness faith from handing out religious literature.
“The more that the property owner opens up his or her property for public use and public function, the more that property because subscribed to constitutional scrutiny,” he said.
Marsh was rolled back by the high court this year in Manhattan Community Access Corp. v. Halleck. In the court’s 5-4 opinion, Justice Brett Kavanaugh wrote a private entity does not turn into a state actor subject to the First Amendment by “merely hosting speech by others.”
But Obstler said there isn’t a bright-line rule and Prager’s case lies somewhere between the two.
“They are not just a company town, they are arguably a company country and maybe a company world force,” Obstler said of YouTube. “My point is they did that on the express designation, which they have repeated to Congress under oath that they are a public forum.”
U.S. Circuit Judge M. Margaret McKeown cut in. “It seems to me that you can puff and say you are a public forum but that doesn’t define your First Amendment status,” the Bill Clinton appointee said. “I mean, they are a public forum in a colloquial sense, but does that necessarily mean they’re a First Amendment public forum?”
Obstler urged the court not to draw a bright line on private parties that designate their property as public forums.
“Even Justice Kavanaugh, had he been presented with these facts, I don’t know if he would have come out this way,” Obstler said. “He was worried about property owners everywhere being held to be a public forum. This was not the concern Justice Kavanaugh had about a state law forcing private party to make a cable access station.”
McKeown and U.S. Circuit Judge Jay Bybee took immediate exception to YouTube’s attorney Brian Willen’s opening assertion that YouTube “hasn’t taken any action based on Prager’s political views.”