The U.S. Court of Appeals for the Ninth Circuit recently held in Prager University v. Google that YouTube is not a government actor bound by First Amendment limits simply because it hosts a forum for public speech. Rather, as EFF argued in an amicus brief, YouTube is a private entity whose editorial decisions cannot be challenged under the First Amendment, because YouTube itself has First Amendment rights to manage its platform as it sees fit.
Prager University (“PragerU”) is not an actual university, but rather is an educational and media nonprofit with a conservative and Judeo-Christian perspective. It operates a YouTube channel where it posts videos about various social and political issues. It objected to YouTube tagging some of its videos as “mature content” appropriate for Restricted Mode, meaning that users who had enabled Restricted Mode could not see the videos.
PragerU sued Google/YouTube, arguing that these content moderation decisions violated the First Amendment. For that to be possible, YouTube would have to be considered a government actor, since the First Amendment only prohibits abridgements of speech by the government—not by private entities.
So PragerU argued that YouTube should be considered a government actor because it performs a “traditional and exclusive” governmental function by providing a ubiquitous forum for the public to speak out, essentially a digital public square; regulates user speech in that forum; and markets itself as a forum open to the public.
The Ninth Circuit rejected PragerU’s arguments, straight-forwardly applying recent Supreme Court precedent.
Just last year, in a case involving whether a privately owned public access television station is bound by the First Amendment, 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.” EFF also filed an amicus brief in that case, called Manhattan Community Access Corp. v. Halleck.
Citing Halleck, the Ninth Circuit held that “YouTube may be a paradigmatic public square on the Internet, but it is not transformed into a state actor solely by providing a forum for speech.” The court explained, “The relevant function performed by YouTube—hosting speech on a private platform—is hardly an activity that only governmental entities have traditionally performed.” The court further held, “YouTube does not perform a public function by inviting public discourse on its property.” In short, “digital Internet platforms that open their property to user-generated content do not become state actors.”
Thus, the Ninth Circuit affirmed the dismissal of Prager’s First Amendment claim against Google/YouTube.
In our amicus brief, we urged this result and argued that this is, on balance, better for Internet users. If platforms were bound by the First Amendment, their ability to remove or reject user content would be severely limited, even if doing so would best serve their users. As we wrote in our brief:
Such platforms, while generally promoting diverse content and views, would not be able to remove, for example, non-obscene nudity; non-threatening violent content; false but non-harmful or non-defamatory content; or any content that is contrary to the platform host’s or its community’s values, but is nevertheless protected by the First Amendment.
We also acknowledged the problems with online platforms’ voluntary content moderation policies and practices, pursuant to their own terms of service or community standards, but we argued that the answer to bad content moderation isn’t to effectively prohibit any content moderation.
Rather, we argued that online platform that host user-generated content should voluntarily adopt content moderation frameworks that are consistent with human rights—modeled after the Santa Clara Principles—with clear takedown rules, fair and transparent removal processes, and mechanisms for users to appeal takedown decisions.