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IP/Entertainment Case Law Updates

Prager University v. Google

Ninth Circuit affirms dismissal of claims by nonprofit organization alleging censorship and false advertising against YouTube, holding that YouTube is private forum not subject to judicial scrutiny under First Amendment; neither YouTube’s description of its “Restricted Mode” nor its designation of some of plaintiff’s videos as unavailable under that mode constitutes false advertising, and YouTube’s statements about its commitment to free speech are mere opinions not subject to Lanham Act.

Prager University, a nonprofit that creates short videos advocating conservative viewpoints, filed suit against Google and YouTube alleging violation of the First Amendment, false advertising under the Lanham Act, and various state law claims related to YouTube’s designation of some of Prager U’s content as “age inappropriate” under the platform’s “Restricted Mode” policy. The district court granted YouTube’s motion to dismiss with leave to amend the federal claims, and Prager U appealed. The Ninth Circuit affirmed the district court’s ruling. 

YouTube allows viewers to activate a “Restricted Mode,” which makes age-inappropriate videos unavailable. The classification is done either by an automated algorithm or manually by a YouTube user. Content creators can appeal the designation, and YouTube’s human reviewers then evaluate that decision.

Several dozen of Prager U’s videos were tagged as age-inappropriate and unavailable under Restricted Mode. YouTube also “demonetized” some of Prager U’s videos, preventing third parties from advertising on those videos. On Prager U’s appeal, YouTube’s internal review procedure upheld the designation. Prager U sued, alleging that YouTube violated the First Amendment by designating Prager U’s videos as age-inappropriate and also argued that the same designation constitutes false advertising under the Lanham Act. Prager U also asserted that YouTube’s statements about its commitment to free speech also constituted false advertising under the Lanham Act. 

Prager U did not dispute that YouTube is a private entity and therefore not ordinarily constrained by the First Amendment, which regulates “state actors.” Prager U argued, however, that YouTube performs a public function and regulates speech on a public forum, which would bring YouTube within the First Amendment’s constraints. The Ninth Circuit rejected this argument, holding that, despite YouTube’s ubiquity and its role as a public-facing platform, it remains a private forum. Prager U’s public function argument relied on precedent, holding that a private entity may be deemed a state actor if it performs public functions. This expansion of First Amendment coverage to private actors is limited to functions that have traditionally been the exclusive prerogative of the state, such as running a town or holding elections. The court likewise rejected Prager U’s argument that the pervasiveness of YouTube makes it a public forum, finding no precedent supporting Prager U’s proposition that private property becomes a public forum merely by being open to the public. For that to happen, the court said, the government must intentionally open up the property to public discourse. Finally, the court of appeals rejected what it called Prager U’s “opt-in theory of the First Amendment,” that YouTube’s own representations and statements about being a public forum can convert a private property into a public forum. 

As to Prager U’s Lanham Act claims, the Ninth Circuit held that neither YouTube’s statements concerning its content moderation policies nor its designation of Prager U’s videos as age-inappropriate could support a false advertising claim under the Lanham Act. The Lanham Act requires a false or misleading representation of fact in commercial advertising or promotion, and Prager U could not show such a representation. The designation of Prager U’s videos as age-inappropriate was insufficient because YouTube’s reasons for the designation were not available to the viewing public, and the designation by itself did not constitute actionable misrepresentation. Similarly, the court held that YouTube’s own statements and representations constituted opinions that are not subject to the Lanham Act because they were “classic, non-actionable opinions or puffery.” Accordingly, the Ninth Circuit affirmed the lower court’s dismissal of Prager U’s federal claims. 

Summary prepared by David Grossman and Jong-min Choi