February 28, 2020
The Ninth U.S. Circuit Court of Appeals in San Francisco ruled unanimously that privately operated Internet platforms can censor content at will — a rebuke of the argument advanced in conservative circles that the platforms are bound by the First Amendment. The case in question was the YouTube channel of Prager University, a non-profit founded by radio host Dennis Prager. YouTube tagged dozens of PragerU’s videos as “inappropriate,” and stripped their advertising, which led the channel to file a lawsuit in 2017.
The Wall Street Journal reports that, “PragerU contended there was nothing offensive about the restricted clips … and that it was a victim of viewpoint discrimination in violation of the First Amendment,” given that the Google-owned “YouTube has essentially turned itself into the operator of a giant public square.”
PragerU attorney Peter Obstler stated that, despite their disappointment with the court’s ruling, they plan to pursue a similar court case filed in California, especially given that state’s “heightened antidiscrimination, free-speech and consumer-contract law.” WSJ notes that, “no court has endorsed PragerU’s legal argument.”
Protections of First Amendment speech “put constraints on government, not the private sector,” says WSJ, with rare exceptions. One such case is a 1946 Supreme Court ruling 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.”
With regard to PragerU’s suit, however, the Ninth Circuit Court Judge M. Margaret McKeown stated that, “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.”
YouTube spokesperson Farshad Shadloo added that, “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.”
Engadget reports that, “the three judges who oversaw the appeal clearly share the first judge’s opinion, writing in their decision … [that] 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,” they added.