The US Court of Appeals for the Ninth Circuit ruled Wednesday that YouTube is not a “state actor” for First Amendment purposes and thus the platform can exercise control over the content its users post.
The conservative nonprofit group Prager University (PragerU) had complained that YouTube’s terms of use worked to censor the group’s right to free speech. Some of PragerU’s videos on the site had been placed in a “restricted mode” that covers mature or age-inappropriate content, and some had been restricted from advertising by YouTube’s automated system of categorization. But the appeals court held that YouTube may dictate its own terms for how content is hosted on the site: “Using private property as a forum for public discourse is nothing new,” wrote Judge Margaret McKeown to open the opinion.
“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,” she continued. McKeown noted that “just last year” the US Supreme Court had held that “merely hosting speech by others” is not an act that transforms a private platform into public, First-Amendment space. PragerU argued that YouTube should be treated like the government for First Amendment purposes because of its ubiquity and the role it plays in public discourse. But the court noted that YouTube’s situation was nothing like other cases in which private entities, such as company towns, had been required to respect free speech rights. YouTube does not perform “municipal functions,” the court noted, nor is it even a “public forum.” Public forums are governmentally established, McKeown wrote, and “YouTube is not owned, leased, or otherwise controlled by the government.”
PragerU contested that YouTube should be treated like a public forum because of the company’s own statements professing its commitment to free expression. But “[w]hether a property is a public forum is not a matter of election by a private entity,” the court wrote. In the alternative, PragerU argued that YouTube’s statements about free expression constituted false advertising, but the Ninth Circuit disagreed with this theory as well. YouTube’s “lofty but vague” statements, their “braggadocio,” the court said, were not advertising as defined by federal law.
