Ninth Circuit rules against Prager U in YouTube censorship lawsuit

The Ninth Circuit Court of Appeals struck a blow against conservative educational group Prager University (PragerU) on Wednesday, ruling that Google-owned YouTube was well within its rights to restrict access to many of PragerU’s popular videos.

In October 2017, conservative pundit Dennis Prager filed a federal lawsuit against YouTube and its parent company for placing dozens (currently more than 200) of PragerU’s videos in “restricted mode,” meaning they are inaccessible from accounts that employed parental controls to shield children from violent, sexual, or otherwise-inappropriate content. He contends that the videos contained no sex, nudity, foul language, or graphic violence, and were being restricted in violation of YouTube’s Terms of Use.

That suit was tossed last year, leading PragerU to appeal to the Ninth Circuit, arguing first that YouTube officials’ own claims to be a “public forum” make it subject to Ninth Circuit precedent that identifies such a forum’s speech regulation as “state action” subject to First Amendment scrutiny; and second that Google’s censorship practices render its stated claims to respect “freedom of expression” and practice “neutrality” misrepresentations under the federal Lanham Act, which covers claims of false or misleading advertising.

The court has now rejected that appeal. “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,” the opinion reads. “Nor was YouTube’s designation of certain of plaintiff’s videos for Restricted Mode part of an advertising or promotion or a misrepresentation as to the videos (…) YouTube’s braggadocio about its commitment to free speech constituted opinions that are not subject to the Lanham Act.”

PragerU responded with a statement confirming the organization is “considering its next steps in the federal case,” and noting that a parallel state-level lawsuit is still pending.

“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,” PragerU CEO Marissa Streit said. “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.”

Conservatives have long been wary of YouTube due to recurring cases of apparent left-wing discrimination by the video giant and its parent company Google. YouTube has deleted investigation footage from pro-life group Live Action, censored discussion of transgenderism and mental illness, and, according to an ex-Google software engineer, it skews search results in direct response to left-wing pressure.

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