YouTube Isn’t Bound by the First Amendment and Can Censor PragerU Videos: Appeals Court

February 28, 2020 Updated: February 28, 2020
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The 9th Circuit Court of Appeals dismissed a First Amendment lawsuit against YouTube, ruling that the video hosting platform is a private entity and, therefore, not subject to the Free Speech Clause.

The lawsuit was brought in October 2017 by conservative education organization Prager University (PragerU), which runs a YouTube channel that boasts more than 2 million subscribers.

Headed by conservative columnist and radio host Dennis Prager, PragerU accused Google-owned YouTube of violating its constitution-guaranteed freedom of speech by placing more than 200 of its videos under “restricted mode.” Those videos that are flagged by YouTube as “inappropriate” cover a wide range of topics, from the Korean War to racial profiling in law enforcement.

PragerU claimed that YouTube targeted it because of its “political identity and viewpoint as a non-profit that espouses conservative views on current and historical events.” In a short clip it made to explain the lawsuit, PragerU argued that YouTube, which is not a government agency, performs the function of a “public forum” and thus should be bound by the same rules as public-funded government agencies.

In a decision released Wednesday, however, a panel of three judges of the 9th Circuit unanimously maintained a lower court ruling, dismissing the conservative non-profit’s lawsuit against the video-sharing website.

“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,” Circuit Judge M. Margaret McKeown, a Clinton appointee, wrote in a court opinion (pdf).

“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 McKeown.

PragerU CEO Marissa Streit said in a statement following the 9th Circuit’s decision that they will continue to seek legal battle in California courts.

“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,” said Streit. “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.”

In recent years, Google has faced accusations of ideology-driven censorship. In 2018, President Donald Trump accused Google of manipulating search results. “Google search results for ‘Trump News’ shows only the viewing/reporting of Fake News Media,” Trump wrote on Twitter. “In other words, they have it RIGGED, for me & others, so that almost all stories & news is BAD.”