Thursday, February 27, 2020

YouTube Isn't Bound by the First Amendment

By Eugene Volokh - February 26, 2020 at 11:34PM

From the opinion, written by Judge Margaret McKeown and joined by Judge Jay Bybee and Judge Fernando Gaitan (W.D. Mo.):

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 invites the public to post video and other content on its platform and is "committed to fostering a community where everyone's voice can be heard." Subject to the Terms of Service and Community Guidelines that a user must accept before posting a video, YouTube has reserved the right to remove or restrict content. YouTube may remove content that violates its Terms of Service, or restrict otherwise objectionable videos (even if they do not violate the Terms of Service), such as those deemed to be age-inappropriate.

At issue here is YouTube's Restricted Mode, which, when activated by a user, makes unavailable certain age-inappropriate content. In addition to individual users, institutions such as libraries, schools, and businesses can turn on Restricted Mode. On average, 1.5–2% of users view YouTube through Restricted Mode.

According to YouTube's "Restricted Mode Guidelines," videos that contain potentially mature content—such as videos about "[d]rugs and alcohol," "[s]exual situations," "[v]iolence" (including "natural disasters and tragedies, or even violence in the news"), and other "[m]ature subjects" (such as "[v]ideos that cover specific details about events related to terrorism, war, crime, and political conflicts")—may become unavailable in Restricted Mode. The tagging is done either by an automated algorithm that examines certain signals like "the video's metadata, title, and the language used in the video," or manually by a user. When a video is tagged, YouTube informs the content creator, who may appeal the classification. YouTube's human reviewers then evaluate the decision.

YouTube tagged several dozen of PragerU's videos as appropriate for the Restricted Mode. YouTube also "demonetized" some of PragerU's videos, which means third parties cannot advertise on those videos. PragerU appealed the classifications through YouTube's internal process, but at least some of the videos remain restricted or demonetized.

PragerU sued YouTube and its parent company, Google, LLC, on two federal claims—violation of the First Amendment, and false advertising under the Lanham Act—as well as various state law claims.

The court rejected the First Amendment argument:

PragerU's claim that YouTube censored PragerU's speech faces a formidable threshold hurdle: YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government—not a private party—from abridging speech. See Halleck, 139 S.Ct. at 1928 (the Free Speech Clause "prohibits only governmental abridgment of speech," and "does not prohibit private abridgment of speech"); Hudgens v. NLRB, 424 U.S. 507, 513 (1976) ("the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state")….

These are not antiquated principles that have lost their vitality in the digital age. In Halleck the Supreme Court considered whether a private entity that operates a public access channel on a cable system is a state actor. The plaintiffs tested a theory that resembled PragerU's approach, claiming that a private entity becomes a state actor through its "operation" of the private property as "a public forum for speech." The Court rejected this argument. 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." Instead, the Court 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."

Importantly, private property does not "lose its private character merely because the public is generally invited to use it for designated purposes." Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). YouTube may be a paradigmatic public square on the Internet, but it is "not transformed" into a state actor solely by "provid[ing] a forum for speech." Halleck, 139 S. Ct. at 1930, 1934….

PragerU argues that YouTube is a state actor because it performs a public function. It is true that a private entity may be deemed a state actor when it conducts a public function, but the relevant function "must be both traditionally and exclusively governmental." This test is difficult to meet. It is "not enough" that the relevant function is something that a government has "exercised … in the past, or still does" or "that the function serves the public good or the public interest in some way." Halleck, 139 S.Ct. at 1928–29. Rather, the relevant function must have been "traditionally the exclusive prerogative of the [s]tate." Indeed, "[w]hile many functions have been traditionally performed by governments," the lean list of the "very few" recognized public functions includes "running elections," "operating a company town," and not much else, Halleck, 139 S.Ct. at 1929 (internal quotation marks omitted); see, e.g., Terry v. Adams, 345 U.S. 461, 468–70 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505–09 (1946) (company town).

The relevant function performed by YouTube—hosting speech on a private platform—is hardly "an activity that only governmental entities have traditionally performed." Halleck, 139 S.Ct. at 1930. Private parties like "[g]rocery stores" and "[c]omedy clubs" have "open[ed] their property for speech.". YouTube does not perform a public function by inviting public discourse on its property. "The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use." Lloyd Corp., 407 U.S. at 569. Otherwise "every retail and service establishment in the country" would be bound by constitutional norms. Cent. Hardware Co. v. N.L.R.B., 407 U.S. 539, 547 (1972) (private parking lots do not become state actors just because they are open to the public).

That YouTube is ubiquitous does not alter our public function analysis. PragerU argues that the pervasiveness of YouTube binds it to the First Amendment because Marsh teaches that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the … constitutional rights of those who use it." PragerU's reliance on Marsh is not persuasive. In Marsh, the Court held that a private entity operating a company town is a state actor and must abide by the First Amendment. But in Lloyd Corp. and Hudgens, the Court unequivocally confined Marsh's holding to the unique and rare context of "company town[s]" and other situations where the private actor "perform[s] the full spectrum of municipal powers." Lloyd Corp., 407 U.S. at 569; see also Hudgens, 424 U.S. at 518–20.

YouTube does not fit the bill. Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not "perform[] all the necessary municipal functions," nor does it operate a digital business district that has "all the characteristics of any other American town." …

Shifting gears slightly, PragerU posits that a private entity can be converted into a public forum if its property is opened up for public discourse.This theory finds no support in our precedent. As the Supreme Court has explained, to create a public forum, the government must intentionally open up the property to public discourse. That YouTube is not owned, leased, or otherwise controlled by the government undermines PragerU's public forum theory. PragerU cannot avoid the state action question by calling YouTube a public forum….

And the court also rejected the false advertising claim:

YouTube's statements concerning its content moderation policies do not constitute "commercial advertising or promotion" as the Lanham Act requires. The statements about Restricted Mode were made to explain a user tool, not for a promotional purpose to "penetrate the relevant market" of the viewing public….

Nor was the designation of certain PragerU videos for Restricted Mode part of an advertising or promotion or a misrepresentation as to the videos. The designation and the reason for tagging videos to be unavailable in Restricted Mode are not made available to the public.

Furthermore, the fact that certain PragerU videos were tagged to be unavailable under Restricted Mode does not imply any specific representation about those videos. Although a false advertising claim may be based on implied statements, those statement must be both specific and communicated as to "deceive[] a significant portion of the recipients." The only statement that appears on the platform is that the video is "unavailable with Restricted Mode enabled." This notice does not have "a tendency to mislead, confuse or deceive" the public about the nature of PragerU's videos.

YouTube's braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act. Lofty but vague statements like "everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories" or that YouTube believes that "people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities" are classic, non-actionable opinions or puffery. Similarly, YouTube's statements that the platform will "help [one] grow," "discover what works best," and "giv[e] [one] tools, insights and best practices" for using YouTube's products are impervious to being "quantifiable," and thus are non-actionable "puffery." The district court correctly dismissed the Lanham Act claim.

The analysis seems quite right to me. The court didn't have occasion to discuss any possible California law claims, which I assume Prager University can bring in state court; but I think Prager University is unlikely to succeed on those, either.

Disclosure: I have represented Google as a lawyer, including in writing a white paper arguing that the First Amendment protects search engine results, though that is a different question than the one I'm discussing here; I have not been asked to blog about this, and I am speaking entirely for myself here. I have also done a video for PragerU on the Second Amendment, and much appreciate the opportunity to do that; I generally much admire PragerU's work.


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