This week the Ninth Circuit Court of Appeals ruled that, “despite YouTube’s ubiquity and its role as a publicfacing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.”
PragerU sued YouTube and its parent, Google for violating the free speech rights of the “nonprofit educational and media organization with a mission to ‘provide conservative viewpoints and perspective on public issues that it believes are often overlooked,’” as explained in the court’s decision.
In accordance with its legal right to moderate content on its platform under Section 230 of the Communications Decency Act, YouTube had placed some of PragerU’s uploaded videos on “Restricted Mode.” This is an opt-in feature of YouTube viewers to avoid content with mature themes; it’s employed by about 1.5 percent of the video hosting platform’s 1.3 billion users.
PragerU argued, among other claims dismissed unanimously by the three judge panel, that YouTube’s size made it the equivalent of a government entity warranting more legal scrutiny of the platform’s content moderation that a private company would otherwise merit; the operator of a giant digital public square, if you will.
Circuit Judge M. Margaret McKeown would not. She wrote in her decision:
PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. Just last year, the Court held 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.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019). The Internet does not alter this state action requirement of the First Amendment. We affirm the district court’s dismissal of PragerU’s complaint.