Prager University v. YouTube, LLC, No. 18-15712 (9th Cir. Feb. 26, 2020).

Prager University v. YouTube, LLC, No. 18-15712 (9th Cir. Feb. 26, 2020).

In 2017, Prager University sued Google in federal court claiming, among other claims, that Google had violated the First Amendment when YouTube restricted the views of 37 videos posted by Prager University.

Prager University argued that YouTube is a public forum and its videos posted on YouTube was speech protected by the 1st amendment.  In 2018, a U.S. district judge dismissed the case ruling that Google is a private company and reaffirmed 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.” A panel of judges upheld the dismissal because YouTube is a private forum, not a public forum subject to judicial scrutiny under the First Amendment.

The 9th circuit affirmed the lower court’s opinion:

“The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech.”

There is an exception when a private entity become a state actor or “an instrument or agent of the government” and Prager University argued that an entity like YouTube becomes a state actor through its “operation” of the private property as “a public forum for speech.”

The lower court rejected Prager’s argument and the ninth circuit stated that, “Such a rule would eviscerate the state action doctrine’s distinction between government and private entities because ‘all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints.’"

Twenty years ago, the holding was the same when the 9th circuit concluded that America Online—a service that provided, among other things, internet service, web portal, and emails—was not “an instrument or agent of the government.”

An example of an exception can be found in KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, ET AL. where the 2nd districte ruled that President Donald Trump's Twitter account to be a designated public forum and that blocking users was unconstitutional viewpoint discrimination in violatoin of the 1st Amendment.