YouTube can restrict PragerU videos because it is a private forum, court rules.

An illustration of YouTube's logo behind barbed wire.


YouTube is a private forum and therefore not subject to free-speech requirements under the First Amendment, a US appeals court ruled today. “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,” the court said.

PragerU, a conservative media company, sued YouTube in October 2017, claiming the Google-owned video site “unlawfully censor[ed] its educational videos and discriminat[ed] against its right to freedom of speech.”

PragerU said YouTube reduced its viewership and revenue with “arbitrary and capricious use of ‘restricted mode’ and ‘demonetization’ viewer restriction filters.” PragerU claimed it was targeted by YouTube because of its “political identity and viewpoint as a non-profit that espouses conservative views on current and historical events.”

But a US District Court judge dismissed PragerU’s lawsuit against Google and YouTube, and a three-judge panel at the US Court of Appeals for the 9th Circuit upheld that dismissal in a unanimous ruling today.

“PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech,” judges wrote.

PragerU claimed that Google’s “regulation and filtering of video content on YouTube is ‘State action’ subject to scrutiny under the First Amendment.” While Google is obviously not a government agency, PragerU pointed to a previous appeals-court ruling to support its claim that “[t]he regulation of speech by a private party in a designated public forum is ‘quintessentially an exclusive and traditional public function’ sufficient to establish that a private party is a ‘State actor’ under the First Amendment.” PragerU claims YouTube is a “public forum” because YouTube invites the public to use the site to engage in freedom of expression and because YouTube representatives called the site a “public forum” for free speech in testimony before Congress.

Hosting speech doesn’t make YouTube a state actor

Appeals court judges were not convinced. They pointed to a Supreme Court case from last year in which plaintiffs unsuccessfully “tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its ‘operation’ of the private property as ‘a public forum for speech.'” The case involved public access channels on a cable TV system.

The Supreme Court in that case found 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.”

“If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum,” the Supreme Court decision last year continued.

Ruling against PragerU’s First Amendment claim was ultimately a “straightforward” matter, the appeals-court ruling today said:

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.

The judges’ panel also rejected PragerU’s claim that YouTube was guilty of false advertising under the Lanham Act.

“YouTube’s statements concerning its content moderation policies do not constitute ‘commercial advertising or promotion’ as the Lanham Act requires,” the decision said. “Nor was YouTube’s designation of certain of plaintiff’s videos for Restricted Mode part of an advertising or promotion or a misrepresentation as to the videos.” Judges also found that “YouTube’s braggadocio about its commitment to free speech constituted opinions that are not subject to the Lanham Act.”