The 9th Circuit Court of Appeals has upheld a lower court dismissal of Prager University’s lawsuit against Google regarding restrictions placed on Prager U videos on YouTube, which is owned by Google.

The federal district court dismissed the Complaint, as we covered in Federal Court: YouTube restrictions on PragerU videos do not violate 1st Amendment:

I have long argued that the censoring or restricting of content by internet oligopolies poses a greater current threat than government action because these private oligopolies, which control so much of our communications, are not covered by the 1st Amendment.

In a ruling earlier this week, a federal court held that the 1st Amendment did not apply and dismissed PragerU’s federal claims. As a result of dismissing the federal claims, the court held that there was no basis to continue to exercise jurisdiction over state-law claims. Those state law claims could be brought in state court….

The Court held that there was no 1st Amendment claim because PragerU had not pleaded sufficient facts to show that Google/YouTube were “state actors”:

“It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state.” Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976). Plaintiff does not dispute that Defendants are private entities. See Compl. ¶¶ 18–19; ECF No. 25 at 14 (conceding that “Defendants are not public entities”). However, in some circumstances, a private entity can be a state actor for constitutional purposes. Specifically, “‘[t]he Supreme Court has articulated four tests for determining whether a private party’s actions Plaintiff contends that Defendants are state actors under the “public function” test. See Compl. ¶ 87 (stating that “Defendants further act as state actors because Defendants and the YouTube site perform an exclusively and traditionally public function”). Under the public function test, “[p]rivate activity becomes a ‘public function’ only if that action has been ‘traditionally the exclusive prerogative of the State.’”….

Plaintiff does not point to any persuasive authority to support the notion that Defendants, by creating a “video-sharing website” and subsequently restricting access to certain videos that are uploaded on that website, Compl. ¶¶ 35, 41–46, have somehow engaged in one of the “very few” functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. Instead, Plaintiff emphasizes that Defendants hold YouTube out “as a public forum dedicated to freedom of expression to all” and argues that “a private property owner who operates its property as a public forum for speech is subject to judicial scrutiny under the First Amendment.” Opp. at 18….

In sum, Plaintiff has not shown that Defendants have engaged in one of the “very few” public functions that were traditionally “exclusively reserved to the State.” Flagg Bros., 436 U.S. at 158. 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, see Marsh, 326 U.S. at 507–09, or one that has been given control over a previously public sidewalk or park, see Evans v. Newton, 382 U.S. 296 (1966), or one that has effectively been delegated the task of holding and administering public elections, see Smith v. Allwright, 321 U.S. 649, 664 (1944). 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.

The district court offered Prager U a chance to try to amend the complaint, but Prager U declined to do so:

After further review and consideration of the Court’s March 26, 2018 Order Granting Defendants’ Motion to Dismiss Plaintiff’s Federal Causes of Action; Dismissing Plaintiff’s State Law Causes of Action; and Denying Plaintiff’s Motion for a Preliminary Injunction [ECF No. 54](the “Order of Dismissal”), and the statements of the Court and the parties at the CMC, Plaintiff PragerU respectfully submits this status report and request for final order.

Specifically, PragerU will not file an amended complaint because, based on the Court’s statements at the CMC and its Order of Dismissal, the proposed amendments will not affect the Court’s rulings that: (1) Plaintiff fails to and cannot allege facts establishing that Defendants engage in state action under Marsh v. Alabama, 326 U.S. 501 (1946), as modified and narrowed by Hudgens v. N.L.R.B., 424 U.S. 507 (1976) and other applicable federal law; (2) Plaintiff fails to and cannot allege facts establishing that Defendants violated the Lanham Act; and (3) the Court will not exercise supplemental jurisdiction over Plaintiff’s state law claims.

As a result, PragerU also requests that the Court enter a final order dismissing the Action based on its Order of Dismissal to allow PragerU to appeal the Court’s Order of Dismissal of the two federal causes of action based on the First Amendment of the United States Constitution and the Lanham Act, to the Ninth Circuit Court of Appeal and to refile any and all causes of action based on state law in California Superior Court.

Prager U appealed the federal court dismissal, but also filed in state court on the state claims.

You can watch the oral argument in the federal 9th Circuit below:

On February 26, 2020, the Court of Appeals ruled against Prager U. Here is an excerpt from the Opinion:

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 publicfacing 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.

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 (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.

There you have it. Unless this gets reversed by the Supreme Court, which I don’t think will happen, conservatives will need to seek a remedy other than the federal courts for political bias by large tech and social media companies. Perhaps state court is an answer, but I’m not optimistic since the state Superior Court also dismissed the lawsuit (which is being appealed).

Prager U. issued this statement in response to the 9th Circuit decision:

“As we feared, the Ninth circuit got this one wrong, and the important issue of online censorship did not get a fair shake in court,” says Marissa Streit, CEO of PragerU. “Sadly, it appears as if even the Ninth Circuit is afraid of Goliath — Google. We’re not done fighting for free speech and we will keep pushing forward.”

While considering its next steps in the federal case, PragerU continues to fight for free speech via its parallel lawsuit in California State Court. A court date is expected for later this year for oral arguments in PragerU’s appeal.

“Of course this ruling is disappointing, but we won’t stop fighting and spreading public awareness of Big Tech’s censorship of conservative ideas,” says Craig Strazzeri, PragerU CMO. “YouTube continues to falsely claim that they are not politically biased, but their recent six-figure investment in the left-wing news channel The Young Turks proves otherwise.”

 

 
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