Prager University v. Google LLC, No. 18-15712 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's dismissal of PragerU's action alleging that YouTube and its parent company, Google, violated the First Amendment and the Lanham Act, as well as state laws, when YouTube tagged several dozen of PragerU's videos as appropriate for the Restricted Mode.
The panel affirmed the district court's dismissal of the First Amendment claim, holding that, despite YouTube's ubiquity and its role as a public-facing platform, YouTube is a private forum, not a public forum subject to judicial scrutiny under the First Amendment. In Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019), the Supreme Court held 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. The panel explained that the Internet does not alter this state action requirement of the First Amendment.
The panel also held that PragerU's false advertising claim under the Lanham Act also failed, because none of PragerU's alleged actions were actionable under the Act. In this case, YouTube's statements concerning its content moderation policies, as well as its designation of certain of plaintiff’s videos for Restricted Mode, do not constitute "commercial advertising or promotion." Furthermore, the panel stated that the fact that certain PragerU videos were tagged to be unavailable under Restricted Mode does not imply any specific representation about those videos. Finally, the panel wrote that YouTube's braggadocio about its commitment to free speech constitutes opinions that are not subject to the Act.
Court Description: Civil Rights The panel affirmed the district court’s dismissal of an action brought against YouTube and its parent company, Google, LLC, by a nonprofit educational and media organization alleging a violation of the First Amendment and false advertising under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), as well as various state law claims. Addressing the First Amendment claims, the panel held that 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. The panel noted that just last year, the Supreme Court held 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.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). The panel held that the Internet does not alter this state action requirement of the First Amendment. The panel therefore rejected plaintiff’s assertion that YouTube is a state actor because it performs a public function. Addressing the false advertising claim under the Lanham Act, the panel held that YouTube’s statements concerning its content moderation policies do not constitute “commercial advertising or promotion” as the Lanham Act requires. Nor was YouTube’s designation of certain of plaintiff’s videos PRAGER UNIVERSITY V. GOOGLE 3 for Restricted Mode part of an advertising or promotion or a misrepresentation as to the videos. Finally, the panel held that YouTube’s braggadocio about its commitment to free speech constituted opinions that are not subject to the Lanham Act. 4 PRAGER UNIVERSITY V. GOOGLE
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