Nonprofit educational and media organization Prager University has struck out in its bid to revive its First Amendment and false advertising lawsuit against Google's YouTube where the tech giant faced claims of bias against conservative content creators.

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a lower court ruling which found that YouTube was not a state actor subject to judicial scrutiny under the First Amendment.

"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," wrote Ninth Circuit Judge M. Margaret McKeown in an opinion joined by Judge Jay Bybee and U.S. District Judge Fernando J. Gaitan Jr. of the Western District of Missouri, sitting by designation.

The lawsuit filed in 2017 claimed that YouTube's decisions to tag certain PragerU videos as age-restricted violated the First Amendment, since the company was operating "a public forum for speech."  But Wednesday's Ninth Circuit decision held that "to characterize YouTube as a public forum would be a paradigm shift."

"PragerU's claim that YouTube censored PragerU's speech faces a formidable threshold hurdle: YouTube is a private entity," McKeown wrote. "The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech," she wrote. Wednesday's decision noted that the U.S. Supreme Court held just last year in Manhattan Cmty. Access Corp. v. Halleck 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."

PragerU's suit also claimed that YouTube violated the Lanham Act by holding itself out as a forum for "freedom of expression" while making screening decisions based on criteria that weren't content-neutral. But the Ninth Circuit held that YouTube's statements about its content moderation practices did not constitute the sorts of commercial advertising and promotion subject to the federal false advertising law.

"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' or that YouTube believes that 'people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities' are classic, non-actionable opinions or puffery," McKeown wrote.

Browne George Ross partner Peter Obstler, who represents PragerU, didn't immediately respond to a request for comment Wednesday morning. In a statement emailed Wednesday afternoon, Marissa Streit, CEO of PragerU, said the organization was considering its next steps in the federal case. "As we feared, the Ninth circuit got this one wrong, and the important issue of online censorship did not get a fair shake in court," she said. "Sadly, it appears as if even the Ninth Circuit is afraid of Goliath — Google. We're not done fighting for free speech and we will keep pushing forward."

Farshad Shadloo, a YouTube spokesperson, said Wednesday that Google's products are not politically biased and that the company goes to "extraordinary lengths" to build products and enforce policies in ways that are politically neutral. "Our platforms have always been about sharing information everywhere and giving many different people a voice, including PragerU, who has over 2 million subscribers on their YouTube channel," Shadloo said. "PragerU's allegations were meritless, both factually and legally, and the court's ruling vindicates important legal principles that allow us to provide different choices and settings to users," he said.

The company is represented in the case by counsel at Wilson Sonsini Goodrich & Rosati.

Wednesday's ruling upholds a 2018 decision from U.S. District Judge Lucy Koh of the Northern District of California.

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