• by Wendy Davis  @wendyndavis, February 26, 2020

Handing Google a victory, a federal appellate court refused to reinstate Prager University's lawsuit accusing the web company of censoring conservative clips on YouTube.

In a unanimous decision, a three-judge panel of the 9th Circuit Court of Appeals ruled that Google isn't bound by the First Amendment's prohibition on censorship, because the First Amendment only applies to government entities and not private companies like YouTube.

“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,” Circuit Judge Margaret McKeown wrote for the panel. The ruling upheld a decision issued two years ago by U.S. District Court Judge Lucy Koh in the Northern District of California.

The dispute dates to 2017, when Prager alleged in a lawsuit that Google wrongly applied its "restricted mode" filter to the school's videos, effectively making them unavailable to some students and library patrons.

Prager also alleged that Google "demonetized" some conservative videos, like a clip that posed the question "Pakistan: Can Sharia and Freedom Coexist?"

Prager argued that its free speech rights were violated by these moves, while Google countered that the First Amendment prohibits the government from censoring speech, not how private companies can treat content.

Prager appealed to the 9th Circuit, where the company attempted to argue that YouTube should be treated as a “state actor,” as if it were the government.

The appellate court rejected that theory.

McKeown wrote that although YouTube “may be a paradigmatic public square on the Internet,” the platform is not a state actor.

Prager also contended that YouTube had engaged in false advertising by boasting about its free-speech policies. YouTube's “about” section currently includes the statement: “We believe that everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories.”

The appellate panel rejected that argument as well, ruling that YouTube's “braggadocio about its commitment to free speech” is just puffery, as opposed to the kind of factual statement that can be the basis of a false advertising claim.

In addition to the lawsuit in federal court, Prager also sued Google in state court for allegedly violating California's constitution and a state civil rights law by discriminating based on political viewpoint.

Santa Clara County Judge Brian Walsh dismissed that matter last year.