Prager University v. Google LLC, 9th Circuit, Feb. 26, 2020, No. 18-15712

Prager University v. Google LLC, 9th Circuit, Feb. 26, 2020, No. 18-15712

The international streaming platform, YouTube, which invites millions of users daily to post public content onto its website, is not a public forum subject to judicial scrutiny under the First Amendment according a recent 9th Circuit decision. The 9th Circuit affirmed the district court's dismissal, stating that YouTube did not prohibit Appellant, Prager University, of their 1st Amendment rights when censoring their videos on YouTube. The Free Speech Clause of the First Amendment prohibits the government, not a private party from abridging speech. YouTube is a private entity, so the company does not lose its private character by merely inviting the public to use its operation as a public forum for speech. Only under rare circumstances can a private entity be subject to 1st Amendment scrutiny; specifically, if the private entity is both traditionally and exclusively governmental. In this instance, YouTube did not play a governmental function when inviting public speech through its platform, so they reserved the right to remove or restrict Prager University's content without violating the 1st Amendment Free Speech Clause. As for false advertising claim under the Lanham Act 15 U.S.C. 1125(a)(1)(B), the 9th Circuit found that censoring video content was not "commercial advertising or promotion" as the Lanham Act requires. Therefore, the 9th Circuit affirmed the district court's dismissal.

by Arya Mansour, Associate Attorney & Wil Rios, Law Clerk (Spring 2020)