A Supreme Court decision issued this week could help Google in its battle with Prager University.
The Supreme Court ruled 5-4 on Monday that the private company Manhattan Neighborhood Network, which operates a cable channel in New York, isn't bound by the First Amendment's prohibition on censorship.
Google is now telling the 9th Circuit Court of Appeals that the ruling protects companies like itself from lawsuits alleging “censorship.”
“YouTube is a private service provider, not a state actor, and its editorial decisions are not subject to First Amendment scrutiny,” Google writes in new court papers.
The Supreme Court this week dismissed a lawsuit brought by producers DeeDee Halleck and Jesus Papoleto Melendez, who made a film critical of the cable channel operator. Manhattan Neighborhood Network showed the film, but later suspended Halleck from using the channel.
Halleck and Melendez sued Manhattan Neighborhood Network, arguing that it violated their free-speech rights.
A trial judge dismissed the case, but the 2nd Circuit Court of Appeals revived the claim on the grounds that the TV station could be considered a “state actor” -- meaning it would have the same obligations as a government entity to follow the First Amendment.
The station then appealed to the Supreme Court, which ruled against Halleck.
“When a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor,” Justice Brett Kavanaugh wrote for the majority. “The private entity may thus exercise editorial discretion over the speech and speakers in the forum.”
Google says the same logic applies to claims by the right-wing Prager University. The tech company writes that the ruling “affirmed that the 'Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.'”
The battle between Google and Prager dates to2017, when Prager alleged that Google engaged in censorship by applying its “restricted mode” filter to the school's videos -- effectively making them unavailable to some students and library patrons. Google also "demonetized" some Prager videos, like a clip that posed the question "Pakistan: Can Sharia and Freedom Coexist?”
Prager claimed its free speech rights were violated by Google, and that the company engaged in false advertising by promising “content neutrality.”
U.S. District Court Judge Lucy Koh dismissed the lawsuit last March, ruling that Google has the right to decide how to treat material on its platform.
Prager recently appealed that ruling to the 9th Circuit Court of Appeals, arguing that YouTube is a “public forum” -- comparable to a park or other venue where people typically have free-speech rights -- and that the company therefore isn't allowed to censor lawful speech based on its content.
YouTube countered that the First Amendment only prohibits the government from censoring speech. “YouTube is not the government, and its efforts to regulate content posted to its private online service are not limited by the First Amendment,” the company wrote in papers filed in November.
The 9th Circuit is expected to hear arguments from both sides on August 27 in Seattle.