Ninth Circuit Panel Weighs How the First Amendment Applies to YouTube

A lawyer from Prager University, the nonprofit organization founded by political commentator Dennis Prager to produce videos with conservative analysis of history and topics of public debate, asked a federal appeals court Tuesday court to revive its First Amendment claims against Google.

Arguing for PragerU at the U.S. Court of Appeals for the Ninth Circuit, Peter Obstler of Browne George Ross, said that Google's YouTube functions as a public forum and that the company's decision to restrict access to certain videos and strip others of potential advertising revenue amounts to state restrictions of PragerU's free speech rights.

Early in Tuesday's argument, Obstler compared YouTube to the "company town" in the U.S. Supreme Court decision in Marsh v. Alabama—a 1946 case where the court found that a state trespassing statute couldn't be invoked to block the distribution of religious materials on the sidewalk of a town privately owned by a company.

"They're not only a company town: They're arguably a company country and a company world-force," said Obstler, noting that YouTube controls as much as 95% of public video content and engagement on the internet.

But two members of the panel, Judges Jay Bybee and M. Margaret McKeown of the U.S. Court of Appeals for the Ninth Circuit, sounded skeptical of PragerU's argument that YouTube's self-description as a forum for "free expression" had direct First Amendment implications. Bybee openly questioned if the court would have the responsibility to hold YouTube to the same standard as a state actor even if the company publicly declared that it would be bound by the First Amendment. "You want us to say that YouTube has been so successful that we are going to impute to it the role of a government," Bybee said later.

McKeown also questioned whether an internet service's declaration that it's a "pubic forum" means that it should be considered a public forum for the purposes of First Amendment analysis.

The lawsuit filed in 2017 claims that YouTube's decisions to restrict certain PragerU videos violate the First Amendment. The suit also claims that YouTube violates The Lanham Act, the federal false advertising law, by holding itself out as a forum for "freedom of expression" while making screening decisions based on criteria that aren't content-neutral. Browne George Ross and Obstler this month filed a separate suit against YouTube on behalf of LGBTQ video creators who claim they're being discriminated against by the site's moderators and algorithms.

The company's lawyers at Wilson Sonsini Goodrich & Rosati on Tuesday were asking the Ninth Circuit to uphold a ruling from U.S. District Judge Lucy Koh of the Northern District of California who found YouTube was not functioning as a state actor and that its representations about being a site for free expression amounted to puffery. Wilson Sonsini's Brian Willen said that using YouTube's own stated commitment to free expression to hold it liable under the First Amendment would have the "perverse" effect of causing internet companies to pull back from such commitments to avoid liability. "The First Amendment isn't a switch that gets turned on or off depending on how a business describes itself," he said.

He further argued that private companies can only be held to be fulfilling a pubic function for free speech purposes in situations that are "traditionally and exclusively" the function of the government. "There is absolutely no tradition of the government providing online services," Willen said.

But McKeown noted that YouTube's ubiquity in terms of internet-based videos put it in its own sort of category.

"Google has almost the equivalent of state power when it decides who can and cannot be hosted on that platform," she said.