Prager University v. Google LLC
301 Cal.Rptr.3d 836
Cal. Ct. App.2022Background
- YouTube (Google LLC and YouTube, LLC) operates a large video platform that restricts access (Restricted Mode) and demonetizes videos based on content and "advertiser-friendly" criteria using automated algorithms plus human review.
- Prager University (a conservative content creator) alleges defendants restricted or demonetized over 50 of its videos and treated "copycat" videos differently, claiming viewpoint and identity discrimination (political/religious).
- Prager sued in federal court; federal claims were dismissed (First Amendment, Lanham Act) and state claims were dismissed without prejudice; Prager filed a separate state-court action alleging: California Constitution violation, Unruh Act, UCL, and breach of the implied covenant of good faith and fair dealing.
- Defendants demurred; the trial court sustained the demurrer without leave to amend, ruling § 230(c)(1) and (e)(3) of the Communications Decency Act (CDA) preempted Prager’s state-law claims except possibly contract-based claims; it rejected those too on the pleadings.
- On appeal, Prager argued defendants were information content providers (algorithm creation), had contractually waived § 230 immunity via TOS and public statements, and that § 230 is unconstitutional as applied; the Court of Appeal affirmed dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 230 bars Prager’s state-law claims that target YouTube’s decisions to restrict/demonetize and limit audience reach | Prager: claims regulate discriminatory publishing decisions and therefore are actionable under state law | Google: claims seek to treat YouTube as a publisher/speaker of third-party content and are preempted by § 230(c)(1) and (e)(3) | Held: § 230 shields defendants from state-law liability for editorial/publishing decisions; claims barred |
| Whether defendants are "information content providers" because they created algorithms that contribute to restrictive decisions | Prager: algorithm development makes defendants a content provider, defeating § 230 immunity | Google: algorithms are tools for moderation and do not make them the provider of Prager’s content | Held: Alleged algorithm use does not convert defendants into information content providers; § 230 still applies |
| Whether defendants’ Terms of Service, Community Guidelines, or public statements create contractual or promissory exceptions to § 230 (breach of implied covenant; waiver) | Prager: TOS, guidelines, and public assurances limit editorial discretion and thus create enforceable promises or waive immunity | Google: TOS/AdSense expressly reserve unilateral moderation/demonetization rights; public statements are nonbinding and integrated; no enforceable promise pleaded | Held: No viable contract or promissory-estoppel theory pleaded; implied covenant cannot override express reservation of discretion; § 230 immunity stands |
| Whether § 230 is unconstitutional as applied because it enables private discrimination and thereby effects state action that violates First/14th Amendments | Prager: shielding private discriminatory moderation from state remedies makes § 230 unconstitutional as applied | Google: § 230 is a federal statutory preemption of state-law causes of action; YouTube is not a state actor; section does not ban speech | Held: § 230 is constitutional as applied here; no state action shown and Supremacy Clause allows § 230 preemption |
Key Cases Cited
- Hassell v. Bird, 5 Cal.5th 522 (2018) (California Supreme Court affirming broad § 230 protection for intermediaries’ publication decisions)
- Barrett v. Rosenthal, 40 Cal.4th 33 (2006) (California Supreme Court on § 230 immunity from defamation liability for intermediaries)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (framework for when state-law claims treat a defendant as publisher/speaker under § 230)
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (early articulation that publisher-like editorial functions are immune under § 230)
- Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (distinguishing when a platform’s conduct creates content vs. when it acts as publisher)
- Enigma Software Group USA, LLC v. Malwarebytes, Inc., 946 F.3d 1040 (9th Cir. 2019) (discussion of § 230’s purpose and scope concerning content moderation)
- Dyroff v. Ultimate Software Group, Inc., 934 F.3d 1093 (9th Cir. 2019) (algorithms and website features do not necessarily make a service provider a content creator)
- Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019) (algorithmic promotion/moderation decisions treated as publisher functions subject to § 230)
- Prager University v. Google LLC, 951 F.3d 991 (9th Cir. 2020) (prior federal appeal addressing Prager’s First Amendment and Lanham Act claims)