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Prager Univ. v. Google LLC

United States Court of Appeals for the Ninth Circuit

August 27, 2019, Argued and Submitted, Seattle, Washington; February 26, 2020, Filed

No. 18-15712

Opinion

 [*995]  McKEOWN, Circuit Judge:

Using private property as a forum for public discourse is nothing new. Long before the Internet, people posted announcements on neighborhood bulletin boards, debated weighty issues in coffee houses, and shouted each other down in community theaters. Juxtaposed with today's digital platforms, these analog means seem quaint. YouTube, LLC alone has more than 1.3 billion users—more than 30 million visitors every day—and 400 hours of video uploaded every hour.

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. Prager University ("PragerU") sees things differently and claims YouTube's outsize power to moderate user content is a threat to the fair dissemination of "conservative viewpoints and perspectives on public issues," and that YouTube has become a public forum. [**3] 

PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. Just last year, the 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, 204 L. Ed. 2d 405 (2019). The Internet does not alter this state action requirement of the First Amendment. We affirm the district court's dismissal of PragerU's complaint.

BACKGROUND3

PragerU is a nonprofit educational and media organization with a mission to "provide conservative viewpoints and perspective on public issues that it believes are often overlooked." PragerU does not confer certificates or degrees. Instead, the organization creates short videos for high-school, college, and graduate school-age audiences and shares them on the Internet. PragerU has posted hundreds of its videos on a broad range of socio-political issues on YouTube.

YouTube hosts user-generated videos and related content on its eponymous platform. YouTube is "the world's largest forum in which the public may post and watch video based content." Around 400 hours of video content are uploaded to the platform hourly. Indeed, "more video content has been uploaded" [**4]  to YouTube "than has been created by the major U.S. television networks in 30 years." "[M]ore than 500 million hours" of those videos are watched each day.

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951 F.3d 991 *; 2020 U.S. App. LEXIS 5903 **; 2020 WL 913661

PRAGER UNIVERSITY, Plaintiff-Appellant, v. GOOGLE LLC, FKA Google, Inc.; YOUTUBE, LLC, Defendants-Appellees.

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. Lucy H. Koh, District Judge, Presiding. D.C. No. 5:17-cv-06064-LHK.

Prager Univ. v. Google LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal., Mar. 26, 2018)

Disposition: AFFIRMED.

CORE TERMS

videos, public forum, private entity, state actor, advertising, Internet, platform, public function, user, private property, public discourse, term of service, Lanham Act, unavailable, promotion, tagged

Civil Rights Law, Section 1983 Actions, Elements, Color of State Law, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Forums, Color of State Law, State Agents, Antitrust & Trade Law, Consumer Protection, False Advertising, Lanham Act