Are courts ready to declare social media a public square?

With a billion monthly users watching hundreds of millions of hours of videos for free every day, YouTube Inc. is one of the largest public forums in the world.

This is the central theory behind a lawsuit filed earlier this week against YouTube and its parent company Google Inc. The filer, Prager University, accused YouTube of violating its First Amendment rights by restricting access to innocuous educational videos and preventing it from running ads in its videos. Prager University v. Google Inc. et al., CV17-06064 (N.D. Cal., filed Oct. 23, 2017).

Browne George Ross LLP, which represents Prager University, rooted its argument in a California Supreme court decision that found private property can constitute a public forum for free speech as long as it’s open to the public in the same manner as a public sidewalk or street. Fashion Valley Mall LLC v. NLRB (2007) 42 Cal. 4th 850, 858.

This legal theory has been percolating for a few years among content producers and internet users frustrated with the censorship powers wielded by companies such as YouTube, Facebook and Twitter, according to Daphne Keller, director of intermediary liability at the Stanford Center for Internet and Society. She is a former associate general counsel at Google.

Similar complaints have had varying degrees of success in court, she said, most notably a U.S. Supreme Court decision earlier this year that found North Carolina violated a registered sex offender’s First Amendment rights by barring him from social media. Packingham v. North Carolina, 137 S. Ct. 1730, 1735-38 (2017).

In a related suit, a plaintiff asserted the right to scrape public information from LinkedIn because it is functionally a public forum. hiQ Labs Inc. v. LinkedIn Corp., CV17-03301 (N.D. Cal., filed June 7, 2017).

The LinkedIn case failed along with a dozen similar claims, but Keller said times are changing and some cases have come close to scoring wins. She pointed to the Young v. Facebook ruling, in which the court stated that a better pleading by the plaintiff might have led to a ruling that the social media giant breached an implied duty of good faith.

The Prager University suit has the potential to be a big deal because it invokes a U.S. Supreme Court decision that affirmed free speech rights on private property and found that state constitutions can give residents broader rights than the federal Constitution. Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

Prager’s lawsuit still must clear a first and most difficult hurdle, Keller said, and that is proving a constitutional violation occurred.

“YouTube has First Amendment rights to decide what content to have or not have,” Keller said.

In fact, she added, Congress encourages private service providers to police content on their platforms under the Communications Decency Act of 1996, which gives them significant discretion. It also holds that sites can’t be held liable for blocking content they deem objectionable.

“Most Americans have this gut instinct that the law shouldn’t be able to force a private platform to host speech it doesn’t want to host,” Keller said.

Prager University argued YouTube breached an implied covenant of good faith and fair dealing established through its terms and conditions. According to some experts, YouTube is essentially free to disregard its own terms.

“YouTube isn’t a state actor. They’re not required to maintain a forum for free speech,” said Eric Goldman, a professor of law at Santa Clara University. This broad protection extends to the idea that YouTube has any obligation to pay users who upload content, Goldman said. This is the subject of a separate complaint filed in California’s Northern District earlier this year by a class of consumers who claim their videos were demonetized in a “draconian and reckless” fashion after Google made adjustments to its ad-placing algorithm, AdSense. Sweet et al. v. Google Inc., CV17-03953 (C.D. Cal., filed July 13, 2017).

Little is known about Google and YouTube’s algorithm, or the human evaluation process for screening videos. The company did not respond to multiple requests for comment.

Goldman said the Prager University lawsuit has stirred a great deal of excitement. He cautioned that it would be difficult to prove a valid breach of contract claim based on Google and YouTube’s terms and conditions, which include generous self-protection clauses.

Plaintiffs have tried to address their censorship complaints indirectly through antitrust claims. Goldman cited a lawsuit against Google by Gab Inc., an app similar to Twitter but with unrestricted free speech.

Gab claimed Google violated the Clayton Act and Sherman Act by removing its app from the Google Play Android store because of posts that allegedly espoused hate speech. Gab AI Inc. v. Google LLC, CV17-04115 (E.D. Penn., filed Sept. 14, 2017).

Antitrust suits resonate with consumers who believe they have no other platform on which to broadcast their message, given the scale of companies like YouTube.

“They’re as close to the government or some utility as a private enterprise can be,” said Richard Marks, an entertainment attorney with The Point Media. Rampant censorship would likely lead to more lawsuits given the growing number of individuals who draw an income from YouTube and other social media platforms, Marks said.

Keller said she believes it would be difficult to apply the essential facilities doctrine to a social media site, given the range of options on the internet for broadcasting one’s message.

Gab announced earlier this week it was dropping its lawsuit.

Goldman said he believes we will see more lawsuits like the one Prager filed. A growing number of conservatives believe they are being disproportionately muzzled by left-leaning Silicon Valley companies.

“We’re seeing this conservative run to the courthouse,” he said.

Regardless of the litigation success, external factors could prompt changes at Google and other publicly traded companies. YouTube reacted quickly to outrage from advertisers after its AdSense algorithm placed ads on ISIS videos, highlighting its receptiveness to consumer outcry.