By Brigitte J. Khoury Legal Perspectives June 12, 2020
“Using private forums for public discourse is nothing new” wrote Judge Margaret McKeown in a recent Ninth Circuit Court of Appeals opinion in Prager University v. Google. Many of us, have read heated discussions on social platforms such as Facebook, Twitter or Instagram involving world news, politics, and the recent pandemic. Some of us even go as far as participating (i.e. posting, liking, disliking and/or commenting) in these newsfeed discussions. However, according to a recent Ninth Circuit ruling in Prager, though many of these platforms invite us to voice our opinions and engage in public discourse, it’s important to note these platforms can exercise control over content that its users post. In other words, there’s no free speech when it comes to social media.
In Prager University v. Google LLC, et al., 951 F.3d 991 (9th Cir. 2020), Prager University (“PragerU”), a nonprofit educational and media organization, brought an action against YouTube and its parent company Google, LLC, alleging a violation of the First Amendment and false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and other state law claims. PragerU provides conservative viewpoints on overlooked public issues by making videos that advance Judeo-Christian values. It creates short videos for high-school, college, and graduate school-age audiences and shares them on YouTube. PragerU has posted hundreds of its videos on a broad range of socio-political issues on its YouTube channel which consists of 2.5 million subscribers.
According to PragerU’s complaint, YouTube tagged several dozen of PragerU’s videos as appropriate for “restricted mode,” making the content unavailable, and also restricted third parties from advertising on PragerU’s channel. According to YouTube’s “Restricted Mode Guidelines,” videos that contain potentially mature content may become unavailable if they involve “[d]rugs and alcohol,” “[s]exual situations,” “[v]iolence,” and other “[m]ature subjects” such as “[v]ideos that cover specific details about events related to terrorism, war, crime, and political conflicts.” PragerU sued YouTube asking the court to compel YouTube to declassify the restricted videos, complaining that YouTube was censoring the group’s right to free speech.
The Free Speech Clause in the First Amendment protects the fair dissemination of speech and prohibits the government, not private entities, from abridging that speech. Because of its ubiquity and role as a public-facing platform, PragerU argued that YouTube should be treated as a state actor for First Amendment purposes.
While there are instances where a private entity can be deemed a state actor, it is rare and only occurs when the private entity conducts a “public function.” The “public function” test is difficult to meet and “must be both traditionally and exclusively governmental.” Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002).
So, while YouTube invites the public to post videos and other content on its platform to provide a forum for speech—does this necessarily serve a public function? The answer, according to Justice McKeown, is no. “The Internet does not alter this state action requirement of the First Amendment.” Prager, 951 F.3d 991, 995 (9th Cir. 2020). Just last year the U.S. Supreme Court held, “[m]erely 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 list of very few recognized public functions includes running elections and operating a company town. Terry v. Adams, 345 U.S. 461, 468–70 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505–09 (1946) (company town). This is hardly the case for YouTube.
It is interesting to think that even though YouTube opens itself to the public for public discourse, it still remains a private, not public forum. Justice McKeown in Prager noted, “[w]hile 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.” Prager, 951 F.3d 991, 999 (9th Cir. 2020).
For now, just remember, for us social media junkies who love to watch or post videos on YouTube about meaty political discussions or debates, not all speech is free speech, especially on social media.