Tech Platforms Aren’t Bound by First Amendment, Appeals Court Rules
Judges decided against Prager University, which claimed YouTube didn’t have right to flag videos
Google, parent company of YouTube, argued that allowing a conservative nonprofit to pursue a constitutional claim would have ‘disastrous consequences’ for the First Amendment and online discourse.
PHOTO: AMY OSBORNE/AGENCE FRANCE-PRESSE/GETTY IMAGES
By Jacob Gershman
Feb. 26, 2020 3:29 pm ET
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A federal appeals court in California on Wednesday ruled that privately operated internet platforms are free to censor content they don’t like.
Though not unexpected, the unanimous decision by the Ninth U.S. Circuit Court of Appeals in San Francisco marks the most emphatic rejection of the argument advanced in some conservative circles that YouTube, Twitter, Facebook and other giant tech platforms are bound by the First Amendment.
The case concerned a YouTube channel operated by Prager University, a nonprofit founded by talk-radio host Dennis Prager that produces short explainer videos promoting conservative ideas. In 2017, PragerU sued YouTube and its parent, Alphabet Inc.’s Google, after YouTube flagged dozens of its videos as “inappropriate,” stripping the clips of advertising and making them less accessible to students, library users and children.
PragerU contended there was nothing offensive about the restricted clips—with such titles as “Why Isn’t Communism as Hated as Nazism?,” “Why Did America Fight the Korean War?” and “Are 1 in 5 Women Raped at College?”—and that it was a victim of viewpoint discrimination in violation of the First Amendment.
It argued that YouTube has essentially turned itself into the operator of a giant public square, a government-like role it says warrants more legal scrutiny of the platform’s content moderation. PragerU brought a similar lawsuit in California state court.
“Obviously, we are disappointed,” said PragerU attorney Peter Obstler. “We will continue to pursue PragerU’s claims of overt discrimination on YouTube in the state court case under California’s heightened antidiscrimination, free-speech and consumer-contract law.”
Google, echoing the wider tech industry, argued that allowing PragerU to pursue a constitutional claim would have “disastrous consequences” for the First Amendment and online discourse.
The feud is part of a wider debate around speech rights in the digital age, where a few giant tech firms own and police the country’s core mediums of communication.
No court has endorsed PragerU’s legal argument. As a general rule, the First Amendment’s speech protections put constraints on government, not the private sector. Exceptions are rare. In one such case, the Supreme Court in 1946 ruled that a Jehovah’s Witness had the right to hand out pamphlets on a sidewalk that was the property of a shipbuilding firm, in an Alabama suburb.
The Ninth Circuit was emphatic: This case was no exception.
“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,” wrote Circuit Judge M. Margaret McKeown for the three-judge panel, affirming an earlier lower-court ruling.
Circuit Judge McKeown also stated that YouTube’s “braggadocio about its commitment to free speech” doesn’t expose it to a federal false-advertising claim.
“Google’s products are not politically biased,” Farshad Shadloo, a YouTube spokesperson, said in a statement Wednesday. “PragerU’s allegations were meritless, both factually and legally, and the court’s ruling vindicates important legal principles that allow us to provide different choices and settings to users.”
Write to Jacob Gershman at jacob.gershman@wsj.com
