Federal court dismisses censorship suit against Google News
Federal court dismisses censorship suit against Google

The US District Court for the Northern District of California [official website] on Monday dismissed [order, PDF] a lawsuit brought by Prager University [official website] against Google [corporate website] alleging that the technology giant censored Prager’s politically conservative YouTube [official website] videos.

Prager filed the suit [complaint, PDF] against Google in October, alleging seven causes of action premised upon violations of: 1) Article I, § 2 [text] of the California Constitution; 2) the First Amendment [GPO backgrounder] to the US Constitution; 3) the California Unruh Civil Rights Act (Unruh Act) [text, PDF]; 4) California’s Unfair Competition Law (UCL) [text]; and 5) the Lanham Act [text, PDF]. The suit further alleged breach of the implied covenant of good faith and fair dealing and requested declaratory relief based on Google’s alleged violations of the First Amendment, Article I, § 2 of the California Constitution, and the Unruh and Lanham Acts.

Prager University is not an academic institution, as its name might suggest, and does not offer certifications or diplomas. Rather, it is a § 501(c)(3) [IRS backgrounder] nonprofit organization, founded by Dennis Prager [advocacy website], whose stated mission is to ” provide conservative viewpoints and perspectives on public issues that it believes are often overlooked or ignored due to the dominance of liberal and left wing perspectives in higher education in the United States.”

Prager’s essential claim is that despite Google-owned YouTube’s purported viewpoint neutrality, it has discriminated against Prager based on Prager’s “political identity and viewpoint” by censoring certain videos that it uploaded on YouTube. Prager further alleged that Google only permitted a “a limited appeal process for any users who believe that the application of age restriction filtering to the user’s video contents is unwarranted or inappropriate.”

The court dismissed Prager’s suit for failure to state any federal claims and declined to address Google’s other arguments for dismissal. The court stated that the First Amendment guarantee of free speech is a guarantee “only against abridgment by government, federal or state.”

However, the court acknowledged that there are circumstances where a private entity can be deemed a state actor for constitutional purposes and described the US Supreme Court‘s [official website] tests for determining whether whether a private party’s actions amount to state action: 1) the public function test; 2) the joint action test; 3) the state compulsion test; and 4) the governmental nexus test. Judge Lucy Koh concluded that Google failed the requisite tests to be deemed a state actor:

Defendants do not appear to be at all like, for example, a private corporation that governs and operates all municipal functions for an entire town, or one that has been given control over a previously public sidewalk or park, or one that has effectively been delegated the task of holding and administering public elections. Instead, Defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website. Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors. … The Court likewise declines to find that Defendants in the instant case are state actors that must regulate the content on their privately created website in accordance with the strictures of the First Amendment. As a result, the Court concludes that Plaintiff has failed to state a claim against Defendants under the First Amendment.

With respect to the Lanham Act claim, the court found that YouTube’s presentation as a “forum for open expression by diverse speakers” was “mere puffery” and not actionable as false advertising. The court also found that YouTube’s stated intention to “help you grow,” “discover what works best for you,” and “giv[e] you tools, insights and best practices for using your voice and videos” was non-actionable puffery. Moreover, the court found that Prager did not have standing under the Lahnam Act, as interpreted by the Supreme Court in Lexmark International, Inc. v. Static Control Components, Inc., because that Act is clearly focused on “protecting businesses against ‘unfair competition’—that is, ‘injuries to business reputation and present and future sales'” and therefore that “a plaintiff must allege an injury to a commercial interest in reputation or sales.”

Prager was given 30 days to amend the complaint to correct the deficiencies identified by the court.