Prager University v. Google LLC
951 F.3d 991
| 9th Cir. | 2020Background
- Prager University (PragerU), a nonprofit producing short conservative educational videos, posted hundreds of videos on YouTube.
- YouTube is a privately owned, public-facing platform that hosts user-generated content and applies content-moderation tools (e.g., Restricted Mode and demonetization) under its Terms of Service and Community Guidelines.
- YouTube tagged several PragerU videos as restricted for Mature/age-inappropriate content and demonetized others; PragerU appealed through YouTube’s internal process but some restrictions remained.
- PragerU sued YouTube/Google asserting (1) violation of the First Amendment (claiming YouTube is a state actor/public forum) and (2) false advertising under the Lanham Act, among state-law claims; the district court denied a preliminary injunction and dismissed the federal claims.
- The Ninth Circuit affirmed dismissal, holding YouTube is a private actor not subject to First Amendment constraints and that the Lanham Act claim failed as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether YouTube is a state actor/public forum for First Amendment purposes | YouTube’s pervasive public role and invitation to post speech makes it a public forum and thus subject to the First Amendment | YouTube is a private company; merely hosting speech or inviting public use does not convert it into a state actor | YouTube is not a state actor; First Amendment claim fails |
| Whether hosting/moderating speech is a "public function" that is traditionally and exclusively governmental | YouTube performs a public function by regulating speech on a mass online forum | The public-function test requires a function traditionally and exclusively performed by government; hosting speech does not qualify | Hosting/moderating speech is not a traditionally exclusive governmental function; state-action doctrine not met |
| Whether self-declaration or corporate statements (e.g., calling YouTube a neutral public fora) convert private property into a public forum | YouTube’s statements about being a neutral public forum or commitment to free expression make it a public forum | A private entity’s statements or commitment cannot unilaterally create a government-owned public forum | Self-declaration is insufficient to create a public forum or trigger state action |
| Whether YouTube’s statements/actions re: Restricted Mode and demonetization state actionable false advertising under the Lanham Act | Designations and public statements misrepresent YouTube’s treatment of content and are commercially actionable; PragerU suffered commercial harm | Restricted Mode explanations and policy language are non-promotional, explanatory, or opinion/puffery; designations are not commercial advertising or specific misrepresentations | Lanham Act claim fails: statements are not "commercial advertising or promotion," and remaining statements are non-actionable opinion/puffery |
Key Cases Cited
- Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) (hosting speech by others does not alone make a private entity a state actor)
- Hudgens v. NLRB, 424 U.S. 507 (1976) (First Amendment restriction applies only to government action)
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (inviting public use does not convert private property into public forum)
- Marsh v. Alabama, 326 U.S. 501 (1946) (private company town held to First Amendment because it performed municipal functions)
- Howard v. Am. Online, Inc., 208 F.3d 741 (9th Cir. 2000) (internet service provider not a state actor)
- Rendell-Baker v. Kohn, 457 U.S. 830 (1982) (public-function test requires activity traditionally and exclusively governmental)
- Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) (distinguishing private property rights from public-function doctrine)
- Cent. Hardware Co. v. NLRB, 407 U.S. 539 (1972) (private commercial property not converted into public forum by public use)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) (government creates a public forum only by intentionally opening property for public discourse)
- Newcal Indus., Inc. v. Ikon Office Solutions, 513 F.3d 1038 (9th Cir. 2008) (distinguishing actionable commercial statements from non-actionable puffery)