YouTube Isn’t a State Actor (DUH)–PragerU v. Google

March 2, 2020 · by · in Content Regulation, Derivative Liability, Marketing

We live in an upside-down world where “conservatives” are actively seeking to impose must-carry obligations on Internet services by characterizing them as state actors. These arguments are ill-considered as “conservative” doctrine because they would massively expand the scope of government control of speech and conflict with “conservatives'” long-standing objections to the fairness doctrine. These arguments are also obviously and farcically bogus, and last year’s Supreme Court’s Halleck ruling made them even more mockably untenable.

Thus, it’s not the least bit surprising that the Ninth Circuit unambiguously rejected PragerU’s arguments that YouTube is a state actor. The opinion is replete with subtle tartness towards the plaintiffs’ arguments. There’s no way to read this opinion as signaling that the plaintiffs’ arguments had any chance or were even slightly redeeming. As a result, I hope that will quell this particular litigation fad. After this ruling, it should be sanctionable to keep pushing overreaching state action lawsuits in the Ninth Circuit.

First Amendment

The court gets right to the point:

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….PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent…The Internet does not alter this state action requirement of the First Amendment.

“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….These are not antiquated principles that have lost their vitality in the digital age.” Indeed, PragerU conceded that YouTube is a private entity, which basically ended its case. In a footnote, the court distinguished the Packingham decision because, in that case, the government was the relevant actor.

Citing Halleck, the court says: “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.'” Later, the court says “YouTube does not perform a public function by inviting public discourse on its property….Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not “perform[] all the necessary municipal functions,” nor does it operate a digital business district that has ‘all the characteristics of any other American town.” Some “conservatives” believe that calling YouTube a “public square” is a legal gotcha. It’s not.

The court pointedly notes this is not a new issue. It cites its 20 year old decision, Howard v. AOL, for the proposition that “a private entity hosting speech on the Internet is not a state actor.” More recent cites to Freedom Watch v. Google, Green v. YouTube, Nyabwa v. FaceBook, Forbes v. Facebook, and Doe v. Cuomo.

YouTube as a Public Forum

PragerU tried to manfacture state action by claiming YouTube performs a “public function.” The court responds that “the relevant function ‘must be both traditionally and exclusively governmental,'” and that makes the test “difficult to meet.” In this case, YouTube’s function, “hosting speech on a private platform,” has never been performed exclusively by the government and thus isn’t a public function. “PragerU posits that a private entity can be converted into a public forum if its property is opened up for public discourse. This theory finds no support in our precedent.”

YouTube’s Self-Proclamations

YouTube and other Internet companies have sometimes used sloppy language to describe their roles in the information ecosystem. This ruling blocks plaintiffs from marshaling these claims against the services:

PragerU’s attempt to foist a “public forum” label on YouTube by claiming that YouTube declared itself a public forum also fails. YouTube’s representation that it is committed to freedom of expression, or a single statement made by its executive before a congressional committee that she considers YouTube to be a “neutral public fora,” cannot somehow convert private property into a public forum. Whether a property is a public forum is not a matter of election by a private entity. We decline to subscribe to PragerU’s novel opt-in theory of the First Amendment.

It’s pretty important that the court rejected “opt-in” and “election” theories to create state action. What the court is saying is that enterprises can’t self-declare themselves as state actors and expect courts to uphold that. So mining past public statements of YouTube and any other Internet services for “gotcha” statements is a fool’s errand. It’s well past time to quit that.

Lanham Act False Advertising

As a workaround to its ill-fated attempt to impose state action on YouTube, PragerU claimed that YouTube contravened various marketing statements. The court disagreed because YouTube’s TOS statements aren’t commercial advertising: “The statements about Restricted Mode were made to explain a user tool, not for a promotional purpose to ‘penetrate the relevant market’ of the viewing public….PragerU did not allege any facts to overcome the commonsense conclusion that representations related to Restricted Mode, such as those in the terms of service, community guidelines, and contracts are not advertisements or a promotional campaign.” The court essentially characterized these materials more like instructional manuals than persuasive marketing.

This is a tricky area of the law, because unquestionably TOSes can and do contain marketing representations; but plaintiffs routinely overclaim the marketing representations purportedly contained in TOSes. This ruling suggests that some parts of TOSes and associated documents are just for explanations, not marketing. I think that’s a good outcome, but I don’t know if this legal distinction helps lower courts or will be persuasive.

Classifying videos for “restricted mode” also didn’t constitute a marketing representation about the videos.

YouTube’s self-descriptions about its role in the information ecosystem didn’t constitute actionable representations either:

YouTube’s braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act. 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. Similarly, YouTube’s statements that the platform will “help [one] grow,” “discover what works best,” and “giv[e] [one] tools, insights and best practices” for using YouTube’s products are impervious to being “quantifiable,” and thus are non-actionable “puffery.”

* * *

PragerU is pursuing a parallel state court action. That is also not going well for it.

This case takes a different doctrinal approach, but it shares common censorial objectives with the anti-230 reform bills from Sen. Hawley and Rep. Gosar. I’m skeptical about the constitutionality of those bills as well.

For more on the state action issue, consider my 2018 essay Of Course the First Amendment Protects Google and Facebook (and It’s Not a Close Question), my 15 year old essay Speech Showdowns at the Virtual Corral, and Daphne Keller’s Who Do You Sue?

Case citation: Prager University v. Google LLC, 2020 WL 913661 (9th Cir. Feb. 26, 2020)

Selected Related Posts About State Action Claims

Note how many of these “no state action” cases are more than a decade old. The arguments being made today are venerable, not novel–and they never have been meritorious. Sadly, the demand for censorial legal doctrines never ends.