Prager University v. Google, LLC and YouTube, LLC, No. 18-15712 (9th Cir.) Oral argument held August 27, 2019.
Prager University (“PragerU”) is not a degree granting institution but an online forum for conservative thought which is often presented in short video presentations.
Prager University has asked the Ninth Circuit Court of Appeals to reverse dismissal of its claim that YouTube LLC, an internet platform wholly owned by Google, LLC that permits uploading of user video content, violates the First Amendment in its administration of the platform. PragerU asserts that YouTube erred in removing some Prager University videos from view through YouTube’s user controlled “Restricted Mode.”
As YouTube Looks and Acts Like a Government, YouTube Must Conform to First Amendment Constraints. PragerU alleges that YouTube, which dominates the market for such platforms, has created and invited participation in a public forum and accordingly must be bound by the same constraints applicable to government entities by the First Amendment. As the online equivalent of the public square, through its invitation and subsequent curation of its content, YouTube is engaged in state action subject to First Amendment limitations.
PragerU objects not only to YouTube’s failure to conform itself to constitutional commands, but also to what it perceives to be unfair competition and devaluation of its product, as where its posts are inaccessible, advertisers will not work with PragerU, and revenues will be lost.
Ownership Includes Discretion to Manage but Curation Does not a State Actor Make. YouTube asserts that in selecting sites suitable for viewer controlled discretion, YouTube is properly exercising its own First Amendment rights as a private corporation.
YouTube asserts that its invitation to the public to participate in an open viewer and content provider driven forum will not transform YouTube into a government entity engaged in state action.
YouTube can, the corporation insists, be both open and retain a capacity to manage content postings according to its internal guidance and by agreement with users.
YouTube denies that it is engaged in any behavior traditionally and exclusively reserved to government.
YouTube stresses that to adopt PragerU’s position would be to upend platform and user behavior on the internet in unmanageable and undesirable ways, both practically and as a matter of legal analysis.
Impact as Envisioned by Industry and Advocacy Leaders. The Electronic Frontier Foundation (“EFF”), which advocates for issues arising in new technology, argues as amicus that user interests will not be served by removing the First Amendment protections enjoyed by platforms and imposing upon them the constraints inhibiting government interference with speech.
The EFF notes that there would be no conceivable ‘cure’ for the issues that would arise if open forums such as YouTube were deemed to be public forums. Permitting moderation and curation would only shift review standards from those applied to public forums to those applied to limited public forums. Legal analysis would be impossible, as corporations are not involved in serving compelling state interests.
The EFF disputes the central argument made by PragerU and asks the Ninth Circuit to recognize that the curation of user or content provider speech is not an inherently governmental function sufficient to support a finding that the YouTube platform is engaged in state action.
Moreover, the EFF stresses that Section 230 of the Communications Decency Act of 1996 (“Section 230”) insulates platform providers from liability to third parties for user generated content and from liability to content providers for rejecting, blocking or removing content.
Concerns About Platform Providers’ Behavior are Legitimate and Must Be Addressed. The EFF recognizes the importance of concerns about inequitable conduct by platform providers and notes the seriousness of claims that providers have banned or removed content without justification to the detriment of users and content providers. The EFF notes that society in general benefits from freedom from speech suppression even if some speech provokes discomfort.
The EFF urges that YouTube and other platforms adopt a human rights frame of reference in curating content. It is most important that users have an active role in moderation and that providers behave with accountability and transparency. Providers should publish data about what it removes, be clear in its user agreements and guidance, and permit appeals from adverse determinations.
Self-Governance, If Assured, Must be Assiduously Pursued. The EFF cautions that it is not enough that YouTube may retain the right to permit or circumscribe content according to its standards: it must make an effort to do so diligently.
The End of the Internet. The Computer and Communications Industry Association (“CCIA”) as amicus urges the Ninth Circuit to reject the notion that YouTube became a public forum or a government or government controlled entity because of YouTube’s encouragement of free expression. That encouragement is not unlimited and is cabined by YouTube’s Terms of Service and Community Guidelines. YouTube’s curation and moderation does not make it a state actor, as it does not behave as or provide a service ordinarily supplied by the government.
The CCIA cautions against the adverse impact of subjecting online platforms to First Amendment Constraints rather that permitting the platforms to enjoy First Amendment protections. The internet as it now functions would be markedly diminished by the application of the state actor doctrine, as substantial content removal would be required and publication of all but unprotected speech would be required in open forums.
Contrary to PragerU’s arguments, PragerU cannot succeed establishing that what YouTube does is an activity traditionally and exclusively reserved to the state, for no such activity has ever existed before.
Neither can PragerU succeed in asserting that any content regulation on what PragerU defines as a public forum will make YouTube a state actor if YouTube is not operating a public forum at all.
This crucial (if not fatal) circularity cannot be overcome by reliance on precedent in which status as a public forum was not in issue. Equally importantly, PragerU cannot succeed in relying on on the “company town” holding of Marsh v. Alabama, 326 U.S. 501 (1946), as almost all subsequent considerations of Marsh have limited its holding to those few circumstances in which a private entity essentially functions as a government.
Neither can “company town” status be found to exist through the words YouTube chooses to hold itself out to the public. Self-description or an invitation to the public to participate in open expression will not, without more, work the alchemy of transforming a private entity into a government.
In point of fact, CCIA suggests, YouTube’s retention of control of material placed on its platforms demonstrates that YouTube’s invitation and representations are not unlimited.
Inapposite Dicta. Recent Supreme Court characterization of the internet as a modern public square is more rhetorical than substantive, and is not helpful to PragerU in that the issue concerned an action taken by the state respecting social media, not social media acting as the state.
Imposing the Constraints of One First Amendment Premise Would Remove the Protection of the Corollary First Amendment Promise. CCIA observes that imposition on YouTube of the First Amendment standards imposed on the government would violate the First Amendment protections guaranteed to private entities by the First Amendment. To do so would cause YouTube to lose almost all its ability to curate its platform, and would eviscerate the protection afforded by Section 230.
Bad for Business. The United States Chamber of Commerce (“Chamber of Commerce”), the nation’s largest business organization, fears that businesses would be harmed by a determination in PragerU’s favor. Binding businesses to First Amendment constraints is only appropriate where the business performs “traditionally exclusively” government acts, and that is not true here. The First Amendment binds the government, has not been found to bind private entities, and should not be found to do so now. User run video sharing has never been a state function.
Marsh is inapposite: YouTube is not governing a town. No court has ever held that an entity that opens a space for public expression becomes subject to the restraints imposed on the government by the First Amendment.
Upending Application of the Law. Holding in favor of PragerU would disrupt current First Amendment analysis, which requires that any regulation support a government interest. Substituting corporate for government interest would impermissibly expand the First Amendment and require analysis of business interests that courts are ill-suited to make.
Harm to Business Owners Likely if PragerU Prevails.If businesses were required to submit to standards reserved to the government, it is likely that they would move to limit their online market presence, which might not insulate them from liability but which likely would be economically costly. “Ownership” of a site would not remain with proprietors where users could direct what is posted. This would contravene business owners’ First Amendment rights, not only of speech but of association. Other attempts at limiting exposure, such as limiting activity so as not to be perceived as a public forum, would also likely limit market activity and advertising revenues.
JustLawful Prognostication. Although not impossible, it is not probable that a federal appellate court would, of its own accord, enter judgment in PragerU’s favor except if some grounds for reversal and remand could be found. The issues are simply too big to manage through one case and likely the courts are not the best branch of the government with which to accomplish PragerU’s ends.
Leaving aside the massive impact a decision in favor of the appellant could provoke, the arguments presented by PragerU may be too expansive to countenance, as PragerU relies on the notion that because YouTube describes itself as an open forum inviting free expression it therefore becomes a public forum for First Amendment purposes.