Prager University
Screen capture from one of Prager University’s anti-Muslim videos

Wednesday, the Ninth Circuit Court of Appeals handed down a ruling in Prager University v. Google. The unanimous opinion of the panel was authored by Judge Margaret McKeown and joined by Judge Jay Bybee and Judge Fernando Gaitan. The bottom line is that the Court determined the obvious.

YouTube, a private company, is not a government actor and is not required to protect freedom of speech under the First Amendment. Private companies can establish their own acceptable use policies. Last June my take was that the litigation was, at least in part, a fundraising scam and that Prager’s loss was a foregone conclusion.

According to the opinion of the Court:

Addressing the First Amendment claims, the panel held
that 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. The panel noted that just last year, the
Supreme Court held that “merely hosting speech by others is
not a traditional, exclusive public function and does not
alone transform private entities into state actors subject to
First Amendment constraints.”
Addressing the false advertising claim under the Lanham
Act, the panel held that YouTube’s statements concerning its
content moderation policies do not constitute “commercial
advertising or promotion” as the Lanham Act requires.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.