9th Circuit rejects First Amendment suit against YouTube, but challenges aren’t done

YouTube won a closely-watched First Amendment challenge Wednesday to restrictions imposed on a conservative media organization that sued after some of its videos were moved to a restricted part of the site.

A 9th U.S. Circuit Court of Appeals panel upheld a ruling by U.S. District Judge Lucy H. Koh of San Jose rejecting Prager University's lawsuit alleging First Amendment violations and a Lanham Act false advertising claim. Prager University v. Google LLC et al., 2020 DJDAR 1569 (9th Cir., filed Feb. 26, 2020).

The appellate panel concluded Prager University, which posts videos with a conservative political perspective on YouTube, failed to establish YouTube is a state actor.

"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 9th Circuit Judge M. Margaret McKeown for the panel.

She rejected the false advertising claim in part because the defendant company's statements about its commitment to free speech were "non-actionable 'puffery.'"

9th Circuit Judge Jay S. Bybee and U.S. District Judge Fernando J. Gaitan Jr. of the Western District of Missouri, sitting by designation, joined the opinion.

Google spokesman Farshad Shadloo denied any political bias by YouTube.

"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," he said in a prepared statement.

Brian M. Willen, a Wilson Sonsini Goodrich & Rosati PC partner, argued for Google at the 9th Circuit. Google and YouTube are owned by Alphabet Inc. in Mountain View.

The Prager University federal lawsuit is one of several legal challenges to YouTube. Peter Obstler of Browne George Ross LLP declined to say if he would appeal the ruling either to an en banc panel or the U.S. Supreme Court, but he already is challenging Santa Clara County Superior Court Judge Brian C. Walsh's decision to dismiss a similar state claim with the 6th District Court of Appeal. Prager University v. Google LLC, 19-CV340667 (Santa Clara County Sup. Ct., filed Jan. 8, 2019).

"Neither the First Amendment nor the Lanham Act provides a basis for relief for the type of viewpoint-based or identity-based discrimination that's alleged in this case," Obstler said in a phone interview. "We will be pursing those same allegations under state law, where we believe there is heightened protection against the type of discrimination alleged."

Obstler also represents a class of LGBTQ and African American content creators accusing YouTube of "overt discrimination" because some videos are blocked from the site. Google has filed a motion to dismiss that lawsuit, which is scheduled to be considered next month by U.S. Magistrate Judge Virginia K. DeMarchi. Divino Group LLC et al. Google LLC et al., 19-004749 (N.D. Cal., filed Aug. 13, 2019).

Obstler argued in court papers filed this week a Google employee labeled the plaintiffs' content as "shocking" and "sexually explicit" after telling plaintiffs the reason for the designation is because the plaintiffs are gay.