Prager Univ. v. Google LLC

• Decision Date: 26 February 2020
• Docket Number: No. 18-15712,18-15712
• Citation: 951 F.3d 991
• Parties: PRAGER UNIVERSITY, Plaintiff-Appellant, v. GOOGLE LLC, FKA Google, Inc.; YouTube, LLC, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

951 F.3d 991

PRAGER UNIVERSITY, Plaintiff-Appellant,

v.GOOGLE LLC, FKA Google, Inc.; YouTube, LLC, Defendants-Appellees.

No. 18-15712

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 27, 2019 Seattle, Washington

Filed February 26, 2020

Peter Obstler (argued), Browne George Ross LLP, San Francisco, California; Pete Wilson and Eric M. George, Browne George Ross LLP, Los Angeles, California; for Plaintiff-Appellant.

Brian M. Willen (argued), Wilson Sonsini Goodrich & Rosati, New York, New York; David H. Kramer, Lauren Gallo White, and Amit Q. Gressel, Wilson Sonsini Goodrich & Rosati, Palo Alto, California; for Defendants-Appellees.

Colleen E. Roh Sinzdak, Hogan Lovells US LLP, Washington, D.C.; Daryl Joseffer and Jonathan D. Urick, National Chamber Litigation Center, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.

David Greene and Sophia Cope, Electronic Frontier Foundation, San Francisco, California, for Amicus Curiae Electronic Frontier Foundation.

Donald B. Verrilli Jr. and Chad Golder, Munger Tolles & Olson LLP, Washington, D.C., for Amicus Curiae The Computer & Communications Industry Association.

Before: M. Margaret McKeown and Jay S. Bybee, Circuit Judges, and Fernando J. Gaitan, Jr.,^* District Judge.

McKEOWN, Circuit Judge:

Using private property as a forum for public discourse is nothing new. 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. Juxtaposed with today’s digital platforms, these analog means seem quaint. YouTube, LLC alone has more than 1.3 billion users—more than 30 million visitors every day—and 400 hours of video uploaded every hour.

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. Prager University ("PragerU") sees things differently and claims YouTube’s outsize power to moderate user content is a threat to the fair dissemination of "conservative viewpoints and perspectives on public issues," and that YouTube has become a public forum.

PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. 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." Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S.Ct. 1921, 1930, 204 L.Ed.2d 405 (2019). The Internet does not alter this state action requirement of the First Amendment. We affirm the district court’s dismissal of PragerU’s complaint.

BACKGROUND¹

PragerU is a nonprofit educational and media organization with a mission to "provide conservative viewpoints and perspective on public issues that it believes are often overlooked." PragerU does not confer certificates or degrees. Instead, the organization creates short videos for high-school, college, and graduate school-age audiences and shares them on the Internet. PragerU has posted hundreds of its videos on a broad range of socio-political issues on YouTube.

YouTube hosts user-generated videos and related content on its eponymous platform. YouTube is "the world’s largest forum in which the public may post and watch video based content." Around 400 hours of video content are uploaded to the platform hourly. Indeed, "more video content has been uploaded" to YouTube "than has been created by the major U.S. television networks in 30 years." "[M]ore than 500 million hours" of those videos are watched each day.

YouTube invites the public to post video and other content on its platform and is "committed to fostering a community where everyone’s voice can be heard." Subject to the Terms of Service and Community Guidelines that a user must accept before posting a video, YouTube has reserved the right to remove or restrict content. YouTube may remove content that violates its Terms of Service, or restrict otherwise objectionable videos (even if they do not violate the Terms of Service), such as those deemed to be age-inappropriate.

At issue here is YouTube’s Restricted Mode, which, when activated by a user, makes unavailable certain age-inappropriate content. In addition to individual users, institutions such as libraries, schools, and businesses can turn on Restricted Mode. On average, 1.5–2% of users view YouTube through Restricted Mode.

According to YouTube’s "Restricted Mode Guidelines," videos that contain potentially mature content—such as videos about "[d]rugs and alcohol," "[s]exual situations," "[v]iolence" (including "natural disasters and tragedies, or even violence in the news"), and other "[m]ature subjects" (such as "[v]ideos that cover specific details about events related to terrorism, war, crime, and political conflicts")—may become unavailable in Restricted Mode. The tagging is done either by an automated algorithm that examines certain signals like "the video’s metadata, title, and the language used in the video," or manually by a user. When a video is tagged, YouTube informs the content creator, who may appeal the classification. YouTube’s human reviewers then evaluate the decision.

YouTube tagged several dozen of PragerU’s videos as appropriate for the Restricted Mode. YouTube also "demonetized" some of PragerU’s videos, which means third parties cannot advertise on those videos. PragerU appealed the classifications through YouTube’s internal process, but at least some of the videos remain restricted or demonetized.

PragerU sued YouTube and its parent company, Google, LLC, on two federal claims—violation of the First Amendment, and false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B) —as well as various state law claims.

The district court denied PragerU’s motion for preliminary injunction to compel YouTube to declassify the restricted videos. The court also granted YouTube’s motion to dismiss, with leave to amend the federal claims. Instead of filing an amended complaint, PragerU appealed.

ANALYSIS

I. THE FIRST AMENDMENT CLAIM

PragerU’s claim that YouTube censored PragerU’s speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck , 139 S.Ct. at 1928 (the Free Speech Clause "prohibits only governmental abridgment of speech," and "does not prohibit private abridgment of speech"); Hudgens v. NLRB , 424 U.S. 507, 513, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) ("the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state"). PragerU does not dispute that YouTube is a private entity that operates its platform without any state involvement.²

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. 139 S. Ct. at 1926. The plaintiffs tested a theory that resembled PragerU’s approach, claiming that a private entity becomes a state actor through its "operation" of the private property as "a public forum for speech." Id. at 1930. The Court rejected this argument. Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because "all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints." Id. at 1930–31. Instead, the Court reaffirmed 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." Id. at 1930.

Importantly, private property does not "lose its private character merely because the public is generally invited to use it for designated purposes." Lloyd Corp. v. Tanner , 407 U.S. 551, 569, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). YouTube may be a paradigmatic public square on the Internet, but it is "not transformed" into a state actor solely by "provid[ing] a forum for speech." Halleck , 139 S. Ct. at 1930, 1934.

Twenty years ago, in the early years of litigation involving the Internet, we held that a private entity hosting speech on the Internet is not a state actor. We concluded that America Online ("AOL")—a service that provided, among other things, internet service, web portal, and emails—was not "an instrument or agent of the government." Howard v. Am. Online Inc. , 208 F.3d 741, 754 (9th Cir. 2000) (internal quotation marks omitted); see also Green v. Am. Online (AOL) , 318 F.3d 465, 472 (3d Cir. 2003) (the "contention[ ] that AOL is transformed into a state actor ... because AOL opens its network to the public whenever an AOL member accesses the Internet and receives email or other messages from non-members of AOL" is unpersuasive). That principle has not changed. Although we have not recently spoken on the issue, other courts have uniformly concluded that digital internet platforms that open their property to user-generated content do not become state actors.³ These cases follow the Supreme Court’s state action precedent and are consistent with its recent teaching in Halleck .

In an effort to distinguish controlling precedent, PragerU argues that YouTube is a state actor because it performs a public function. It is true that a private entity may be deemed a state actor when it conducts a public function, but the relevant function "must be both traditionally and exclusively governmental." Lee v. Katz , 276 F.3d 550, 555 (9th Cir. 2002). This test is difficult to meet. It is "not enough" that the relevant function is something that a government has "exercised ... in the past, or still does" or "that the function serves the public good or the public...