(CN) – YouTube is not bound by the First Amendment, its lofty statements about embracing free speech notwithstanding, the Ninth Circuit said Wednesday, in a long-awaited ruling on Prager University’s challenge to the platform’s suppression of its videos.
“Both sides say that the sky will fall if we do not adopt their position,” U.S. Circuit Judge M. Margaret McKeown wrote for a three-judge panel. “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.”
The conservative Prager University sued YouTube’s parent company 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. YouTube also demonetizes videos with conservative content “as a political gag mechanism,” PragerU claims, while promoting its own content in a classic violation of the unfair competition section of the Lanham Act.
Despite the name, Prager University is not an official learning institution, but a site hosting videos on current events and topics like gender equality, abortion and Islam from a conservative perspective.
In affirming a federal judge’s dismissal of the case, the appellate court found that as a private entity YouTube isn’t required to abide by the First Amendment’s free speech clause.
“YouTube does not perform a public function by inviting public discourse on its property,” McKeown wrote.
The 16-page opinion goes on to say that the digital content platform operates more like the comedy club Justice Brett Kavanaugh described in the U.S. Supreme Court’s ruling last year in Manhattan Community Access Corp. v. Halleck.
In that case, two filmmakers objected to being kicked off the Manhattan Neighborhood Network for producing a film criticizing the public access channel. The high court found the channel did not function as a state actor because “Operating public access channels on a cable system is not a traditional, exclusive public function.”
Quoting Halleck, McKeown wrote: “The relevant function performed by YouTube – hosting speech on a private platform – is hardly ‘an activity that only governmental entities have traditionally performed.’”
McKeown, a Bill Clinton appointee, was joined by U.S. Circuit Judge Jay Bybee – a George W. Bush appointee – and U.S. District Judge Fernando J. Gaitan, Jr., a George H.W. Bush appointee sitting by designation from the Western District of Missouri. The panel addressed only the false-advertising portion of PragerU’s Lanham Act claim, brushing off YouTube’s high-minded statements about being committed to free speech and open dialogue in its terms of service as just non-actionable puffery.
“PragerU did not allege any facts to overcome the commonsense conclusion that representations related to Restricted Mode, such as those in the terms of service, community guidelines, and contracts are not advertisements or a promotional campaign,” McKeown wrote.
Google’s appellate counsel Brian Willen with Wilson Sonsini Goodrich & Rosati declined to comment Wednesday, as Google doesn’t allow its outside counsel speak on the record to media.
“I can’t talk on the record about the case,” he said, referring Courthouse News to YouTube’s head of product policy communications Farshad Shadloo.
“Google’s products are not politically biased. We go to extraordinary lengths to build our products and enforce our policies in such a way that political leanings are not taken into account,” Shadloo said in an email. “Our platforms have always been about sharing information everywhere and giving many different people a voice, including PragerU, who has over 2 million subscribers on their YouTube channel. PragerU’s allegations were meritless, both factually and legally, and the court’s ruling vindicates important legal principles that allow us to provide different choices and settings to users.”
In a phone interview, PragerU’s lawyer Peter Obstler said the opinion, while disappointing, decided only two very narrow issues on narrow grounds.
“It only decided that YouTube, based on the allegations in the case, was not a state actor under the First Amendment of the U.S. Constitution because the facts were not enough to establish that they were acting and performing a traditional and exclusive government function, i.e. regulating speech in a public forum,” he said. “Second, it decided that their ‘braggadocio’ statements were not actionable under the Lanham Act in part because they were statements made in contract.”
What the court did not decide, he said, is whether an internet company can overtly discriminate against users based on their race or sexual identity.
Obstler is currently representing a class of YouTubers claiming their videos were censored and restricted as offensive, shocking, or sexually explicit because they feature LGBT content.
The case is pending before U.S. District Judge Virginia DeMarchi in San Jose.