(CN) – Lawyers for Google and the website Prager University squared off before a Ninth Circuit panel Tuesday over whether YouTube censors the conservative platform in violation of the First Amendment.
Founded by talk show host Dennis Prager, Prager University sued YouTube owner Google in October 2017 for flagging many of its videos as containing mature content and cutting off video access to viewers browsing in restricted mode. In its lawsuit, Prager University puts the list of restricted videos at over 50.
U.S. District Judge Lucy Koh dismissed the case in March 2018, finding YouTube does not constitute a “state actor” subject to the First Amendment.
On appeal, Prager University’s attorney Peter Obstler argued Tuesday that YouTube has designated itself a public forum, noting it controls 95% of public video engagement worldwide.
“Private parties absolutely have the right to operate video platforms and they would not be state actors. What makes this case different is the affirmative designations of the platform as a public forum for freedom of expression, and for freedom of information,” Obstler said.
He pointed to Marsh v. Alabama, a 1946 U.S. Supreme Court ruling in which the justices found a company-owned town could not stop a member of the Jehovah’s Witness faith from handing out religious literature.
“The more that the property owner opens up his or her property for public use and public function, the more that property because subscribed to constitutional scrutiny,” he said.
Marsh was rolled back by the high court this year in Manhattan Community Access Corp. v. Halleck. In the court’s 5-4 opinion, Justice Brett Kavanaugh wrote a private entity does not turn into a state actor subject to the First Amendment by “merely hosting speech by others.”
But Obstler said there isn’t a bright-line rule and Prager’s case lies somewhere between the two.
“They are not just a company town, they are arguably a company country and maybe a company world force,” Obstler said of YouTube. “My point is they did that on the express designation, which they have repeated to Congress under oath that they are a public forum.”
U.S. Circuit Judge M. Margaret McKeown cut in. “It seems to me that you can puff and say you are a public forum but that doesn’t define your First Amendment status,” the Bill Clinton appointee said. “I mean, they are a public forum in a colloquial sense, but does that necessarily mean they’re a First Amendment public forum?”
Obstler urged the court not to draw a bright line on private parties that designate their property as public forums.
“Even Justice Kavanaugh, had he been presented with these facts, I don’t know if he would have come out this way,” Obstler said. “He was worried about property owners everywhere being held to be a public forum. This was not the concern Justice Kavanaugh had about a state law forcing private party to make a cable access station.”
McKeown and U.S. Circuit Judge Jay Bybee took immediate exception to YouTube’s attorney Brian Willen’s opening assertion that YouTube “hasn’t taken any action based on Prager’s political views.”
“Hold on, if that’s your opening line, you’re inviting us to make that judgment,” Bybee, a George W. Bush appointee, cut in.
“Put them back on,” McKeown said.
“Yeah,” Bybee said. “I haven’t looked at the videos but it suggests YouTube has really over-designated some things here and it ought to un-designate them and put them back on.”
Willen backed off and turned instead to Halleck, which he said rejects the premise that YouTube performs a public function by providing a forum for speech. He also said the argument that YouTube calls itself a public forum misunderstands the law.
“The Halleck court made clear: Being a platform for speech doesn’t subject a private business to the First Amendment,” he said. “Simply saying you’re a platform for speech doesn’t create a state action.”
McKeown seemed to think the question is more nuanced.
“The difficulty is, and I see of lot of sympathy for their argument, is that with the ubiquity of YouTube and the dominance in terms of video platform and the fact that it’s operating with no borders, basically, that Google has almost the equivalent of state power when it decides who can and cannot be hosted on that platform,” she said. “So what is their remedy?”
Willen said Prager has no remedy “in part because nothing actually untoward has happened to them.”
Bybee asked: “Isn’t the remedy that they just have to get their own channel?”
Willen said, “I think that’s right” and noted Halleck deemed the expansion of the state actor doctrine threatens private business.
“The remedy for this kind of situation is to use the rights that the First Amendment affords private individuals, which is to go and speak for yourself,” Willen said.
He said none of Prager’s videos have been removed from YouTube, but instead have been limited to an opt-in feature that only 1.5% of viewers use per day.
“You have to go into the backroom to look,” McKeown said.
“It’s actually the opposite, your honor,” Willen said, adding that mostly schools and libraries set their computers to restricted mode.
“That’s an important audience for them,” Bybee said.
But Willen said it isn’t meaningful censorship. “I’m saying anyone who wants to see these videos can do so by going to a computer that’s not in restricted mode,” he said.
Obstler showed the panel an image of YouTube’s restricted mode. “What they’re doing is saying my client’s content contains nudity, obscenity, and graphic violence. They don’t contain any of that,” he said, arguing YouTube is stigmatizing Prager University while claiming to be viewpoint neutral.
That violates the Lanham’s Act’s rules on unfair competition, Obstler said.
“That’s what Prager is most upset about. It’s the stigmatization that YouTube is using and doing it selectively to promote their own content. That’s unfair competition and it’s classic Lanham,” he said. “At a minimum I should be given the opportunity to get discovery and go back and prove it, but I didn’t even get out of the gate here. I didn’t get a chance to look at that algorithm. I would love to see what that code is in that algorithm and I will get that if you give me the opportunity to do so.”
Senior U.S. District Judge Fernando Gaitan Jr., a George H.W. Bush appointee sitting by designation from the Western District of Missouri, The judges took the case under submission.