Judge sides with YouTube in free speech case

A San Jose federal judge dismissed claims that Alphabet Inc.-owned Google violated the free speech rights of conservative media outlet Prager University, most known for its YouTube videos.

Radio talk show host Dennis Prager and his organization claim Google LLC trampled his First Amendment rights when it placed age limits on some of the videos on his YouTube channel.

The videos also won't appear when YouTube is in "restricted mode," a Google-recommended setting for universities or other organizations that want to limit users' access to what the company refers to as "sensitive or mature content."

Eric M. George, a partner with Browne George Ross LLP who represents Prager, wrote in the complaint that YouTube created a digital version of a public square that should follow the rules of public spaces in the municipal context. He cited Marsh v. Alabama, a U.S. Supreme Court case in which a town entirely owned by a corporation was ruled to be subject to the same free speech rules as a traditional local government.

U.S. District Judge Lucy H. Koh wrote in her order Monday night that YouTube's online service isn't analogous to an entire town and can't be held to the same free speech standards as a government entity. Prager University v. Google Inc. et al, 17-CV06064 (N.D. Cal., filed Oct. 23, 2017).

"In sum, plaintiff has not shown that defendants have engaged in one of the 'very few' public functions that were traditionally 'exclusively reserved to the state,'" she wrote. "Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors."

Koh also struck down false advertising claims brought under the Lantham Act.

George wrote in his complaint that YouTube advertises itself as being an open forum, where "voices matter" and that the company is "committed to fostering a community where everyone's voice can be heard."

Those statements constitute false advertisement because YouTube actively regulates content, he wrote.

Koh disagreed that the average user would give that kind of weight to YouTube's statements.

"These representations are vague, general statements about YouTube's services that amount to no more than puffery," she wrote, "Defendants' policies and guidelines are more akin to instruction manuals for physical products."

Koh gave Prager leave to amend the complaint. She also chose not to rule on any state law claims. This means Prager will have the option to try another complaint in federal court or to file the state law claims in superior court.

"PragerU's videos weren't excluded from restricted mode because of politics or ideology, as we demonstrated in our filings," a YouTube spokesperson wrote in a statement. "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."

Brian Willen, a partner with Wilson Sonsinsi Goodrich & Rosati PC who represents Google, declined to comment.

George did not respond to a request for comment.