Prager U Loses Federal Appeal vs Google/YouTube

Screen capture from one of Prager University's anti-Muslim videos

Wednesday, the Ninth Circuit Court of Appeals handed down a ruling in Prager University v. Google. The unanimous opinion of the panel was authored by Judge Margaret McKeown and joined by Judge Jay Bybee and Judge Fernando Gaitan. The bottom line is that the Court determined the obvious.

YouTube, a private company, is not a government actor and is not required to protect freedom of speech under the First Amendment. Private companies can establish their own acceptable use policies. Last June my take was that the litigation was, at least in part, a fundraising scam and that Prager's loss was a foregone conclusion.

According to the opinion of the Court:

Addressing the First Amendment claims, the panel held that 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 panel noted that just last year, the Supreme 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.”

Addressing the false advertising claim under the Lanham Act, the panel held that YouTube’s statements concerning its content moderation policies do not constitute “commercial advertising or promotion” as the Lanham Act requires.

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