The plaintiff produces videos with titles like “Why Don’t Feminists Fight for Muslim Women?” and “The Most Important Question About Abortion.” In the lawsuit, Prager’s company asserted that YouTube professes viewpoint neutrality but censors conservatives by putting age restrictions on certain videos. The decision-making is far from even-handed, Prager contends, pointing to, among others, a restricted video titled “Are 1 in 5 women in college raped?” compared to better treatment for a Real Time with Bill Maher video about The Hunting Ground.
Prager sought an injunction.
Since the First Amendment free speech guarantee guards against abridgment by a government, the big question for U.S. District Court Judge Lucy Koh is whether YouTube has become the functional equivalent of a “public forum” run by a “state actor” requiring legal intervention over a constitutional violation.
Koh agrees with Google that it hasn’t been sufficiently alleged that YouTube is a state actor as opposed to a private party.
“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, have somehow engaged in one of the ‘very few’ functions that were traditionally ‘exclusively reserved to the State,'” she writes. “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.’”
The judge turns to precedent, particularly a 1945 Supreme Court case, Marsh v. Alabama, that involved a Jehovah’s Witness who distributed religious literature in a town that was entirely owned by a private corporation. In that decision, the high court held that the corporation acting as a state actor was required to run the town in compliance with the U.S. Constitution. But Koh then emphasizes later Supreme Court decisions that limited the reach of this holding, including one — Lloyd Corp. v. Tanner — where a privately owned shopping center could prohibit anti-Vietnam War protesters from distributing literature.
Koh writes she “is not convinced that Marsh can be extended to support Plaintiff’s contention that Defendants should be treated as state actors subject to First Amendment scrutiny merely because they hold out and operate their private property as a forum for expression of diverse points of view.”
There’s also a nod to another recent opinion from the Supreme Court — Packingham v. North Carolina — which generated a great deal of speculation about implications when the high court justices invalidated a North Carolina state law that made it a felony for a registered sex offender to access a social media website.
According to the judge, “Although Packingham spoke of ‘cyberspace’ and ‘social media in particular’ as ‘the most important places…for the exchange of views’ in modern society, Packingham did not, and had no occasion to, address whether private social media corporations like YouTube are state actors that must regulate the content of their websites according to the strictures of the First Amendment.”
Ultimately, the judge doesn’t think that YouTube is very much like that private corporation governing all municipal functions of a town.
“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,” the opinion states. “Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors.”
The complaint was dismissed, but the plaintiff was granted permission to file an amended version if they wish.
Here’s the full opinion, which also goes into analysis of why a claim of false advertising under the Lanham Act and various state law causes of action fail too.