YouTube Isn't a Public Forum, Rules Appeals Court in Conservative Censorship Case

"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," Judge M. Margaret McKeown wrote in the opinion.
Justin Sullivan/Getty Images

YouTube may have more than a billion users, but it's not a public forum run by the government and therefore its decision to moderate content isn't a violation of the First Amendment, an appellate court has ruled.

Radio talk show host Dennis Prager sued Google in 2017, claiming that his conservative PragerU videos weren't getting the same treatment as liberal ones, like Real Time With Bill Maher clips, in violation of the First Amendment. A California federal judge dismissed the complaint in March 2018 on the grounds that YouTube isn't a public forum run by a state actor and can regulate videos uploaded to the site as it sees fit. 

On Wednesday, the 9th U.S. Circuit Court of Appeals upheld that decision and rejected PragerU's contention that the site has become a digital-era public forum and its power to moderate content is a threat to fair dissemination of conservative viewpoints on public issues.

"Using private property as a forum for public discourse is nothing new," writes Circuit Judge M. Margaret McKeown. "Long before the internet, people posted announcements on neighborhood bulletin boards, debated weighty issues in coffee houses, and shouted each other down in community theaters."

While those methods seem "quaint" compared to the 400 hours of video uploaded to YouTube each hour, the underlying issues don't change.

"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," writes McKeown, adding that both the First Amendment and Supreme Court precedent present "insurmountable barriers" to PragerU's argument.

"Just last year, the 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,'" writes McKeown. "The internet does not alter this state action requirement of the First Amendment."

Specifically at issue in this matter is YouTube's Restricted Mode, which makes certain content unavailable if it is deemed age-inappropriate. Content including alcohol, sexual situations, violence and other mature subjects is tagged as restricted by either an algorithm or a user and then YouTube informs the creator. That creator can appeal, and the appeal is reviewed by a human. YouTube tagged dozens of PragerU videos as restricted and demonetized some of them, which prevented third-party advertising.

PragerU's First Amendment claim fails because the free speech clause only prevents government censorship. "YouTube does not perform a public function by inviting public discourse on its property," writes McKeown. "To characterize YouTube as a public forum would be a paradigm shift."

The court notes that both sides made hyperbolic arguments about decisions not in their favor, with PragerU attempting to instill fear about the tyranny of big-tech and YouTube arguing the internet itself would be undone by government speech regulation.

"While 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," writes McKeown. "Because the state action doctrine precludes constitutional scrutiny of YouTube’s content moderation pursuant to its Terms of Service and Community Guidelines, we affirm the district court’s dismissal of PragerU’s First Amendment claim."

The 9th Circuit also rejected PragerU's false advertising claim.

"YouTube’s braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act," writes McKeown. "Lofty but vague statements like 'everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories' ... are classic, non-actionable opinions or puffery."

Read the full opinion below.