YouTube can censor conservative content, not bound by First Amendment: Appeals court

A screengrab taken on Wednesday, August 21, 2019 of a YouTube playlist featuring PragerU videos on the Ten Commandments. Some of the videos were restricted for possible mature content.
A screengrab taken on Wednesday, August 21, 2019 of a YouTube playlist featuring PragerU videos on the Ten Commandments. Some of the videos were restricted for possible mature content. | Screengrab/

A three judge panel of the U.S. Court of Appeals for the Ninth Circuit has unanimously ruled that YouTube can censor conservative content, as it is not compelled by the First Amendment to allow all viewpoints.

The popular conservative YouTube channel PragerU filed a lawsuit against YouTube and Google, accusing the entities of wrongfully censoring their videos.

However, in a decision released Wednesday, the Ninth Circuit panel affirmed a lower court ruling dismissing Prager’s lawsuit against the video-sharing website.

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Circuit Judge M. Margaret McKeown authored the panel's opinion, arguing that despite its large-scale use and viewership, YouTube remains a private forum rather than a public forum.

“Despite YouTube’s ubiquity and its role as a publicfacing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment,” wrote McKeown.

“PragerU runs headfirst into two insurmountable barriers—the First Amendment and Supreme Court precedent. Just last year, the 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.’”

PragerU CEO Marissa Streit said in a statement released in response to the panel's decision that they will continue to resist having their content restricted.

“As we feared, the Ninth Circuit got this one wrong, and the important issue of online censorship did not get a fair shake in court,” Streit said.

“Sadly, it appears as if even the Ninth Circuit is afraid of Goliath — Google. We’re not done fighting for free speech and we will keep pushing forward.”

A YouTube channel with over 1 million subscribers and headed by conservative radio host Dennis Prager, PragerU has alleged that YouTube and its parent company Google have been wrongfully censoring their content.

This has included YouTube either blocking or restricting the content of the PragerU channel to be seen only by "mature" audiences.

In October 2017, PragerU filed a lawsuit against Google and YouTube in the U.S. District Court for the Northern District of California, accusing them of ideologically-driven discrimination.

In March 2018, U.S. District Judge Lucy Koh dismissed the lawsuit, arguing that Google and YouTube were “private entities” and thus had the right to remove videos as they saw fit.

"PragerU’s videos weren’t excluded from Restricted Mode because of politics or ideology, as we demonstrated in our filings,” a YouTube spokesperson said in a statement, as reported by The Hill at the time.

“PragerU’s allegations were meritless, both factually and legally, and the court’s ruling vindicates important legal principles that allow us to provide different choices and settings to users."

In addition to the federal lawsuit that was rejected by the Ninth Circuit, PragerU has also filed a state lawsuit in California against YouTube and Google.

However, in November, Santa Clara County Superior Court Judge Brian Walsh denied a preliminary injunction request by PragerU, arguing that it did not show “a reasonable probability of success."   

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