Prager University v. Google LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRAGER UNIVERSITY, No. 18-15712

Plaintiff-Appellant,

D.C. No.

v. 5:17-cv-06064-

LHK

GOOGLE LLC, FKA Google, Inc.;

YOUTUBE, LLC,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted August 27, 2019

Seattle, Washington

Filed February 26, 2020

Before: M. Margaret McKeown and Jay S. Bybee, Circuit

Judges, and Fernando J. Gaitan, Jr., * District Judge.

Opinion by Judge McKeown

*

The Honorable Fernando J. Gaitan, Jr., United States District Judge

for the Western District of Missouri, sitting by designation.

2 PRAGER UNIVERSITY V. GOOGLE

SUMMARY **

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought against YouTube and its parent company,

Google, LLC, by a nonprofit educational and media

organization alleging a violation of the First Amendment

and false advertising under the Lanham Act, 15 U.S.C.

§ 1125(a)(1)(B), as well as various state law claims.

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.” Manhattan Cmty. Access

Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). The panel

held that the Internet does not alter this state action

requirement of the First Amendment. The panel therefore

rejected plaintiff’s assertion that YouTube is a state actor

because it performs a public function.

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. Nor

was YouTube’s designation of certain of plaintiff’s videos

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

PRAGER UNIVERSITY V. GOOGLE 3

for Restricted Mode part of an advertising or promotion or a

misrepresentation as to the videos. Finally, the panel held

that YouTube’s braggadocio about its commitment to free

speech constituted opinions that are not subject to the

Lanham Act.

4 PRAGER UNIVERSITY V. GOOGLE

COUNSEL

Peter Obstler (argued), Browne George Ross LLP, San

Francisco, California; Pete Wilson and Eric M. George,

Browne George Ross LLP, Los Angeles, California; for

Plaintiff-Appellant.

Brian M. Willen (argued), Wilson Sonsini Goodrich &

Rosati, New York, New York; David H. Kramer, Lauren

Gallo White, and Amit Q. Gressel, Wilson Sonsini Goodrich

& Rosati, Palo Alto, California; for Defendants-Appellees.

Colleen E. Roh Sinzdak, Hogan Lovells US LLP,

Washington, D.C.; Daryl Joseffer and Jonathan D. Urick,

National Chamber Litigation Center, Washington, D.C.; for

Amicus Curiae Chamber of Commerce of the United States

of America.

David Greene and Sophia Cope, Electronic Frontier

Foundation, San Francisco, California, for Amicus Curiae

Electronic Frontier Foundation.

Donald B. Verrilli Jr. and Chad Golder, Munger Tolles &

Olson LLP, Washington, D.C., for Amicus Curiae The

Computer & Communications Industry Association.

PRAGER UNIVERSITY V. GOOGLE 5

OPINION

McKEOWN, Circuit Judge:

Using private property as a forum for public discourse is

nothing new. Long before the Internet, people posted

announcements on neighborhood bulletin boards, debated

weighty issues in coffee houses, and shouted each other

down in community theaters. Juxtaposed with today’s

digital platforms, these analog means seem quaint.

YouTube, LLC alone has more than 1.3 billion users—more

than 30 million visitors every day—and 400 hours of video

uploaded every hour.

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. Prager University (“PragerU”) sees things

differently and claims YouTube’s outsize power to moderate

user content is a threat to the fair dissemination of

“conservative viewpoints and perspectives on public issues,”

and that YouTube has become a public forum.

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.”

Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921,

1930 (2019). The Internet does not alter this state action

requirement of the First Amendment. We affirm the district

court’s dismissal of PragerU’s complaint.

6 PRAGER UNIVERSITY V. GOOGLE

BACKGROUND 1

PragerU is a nonprofit educational and media

organization with a mission to “provide conservative

viewpoints and perspective on public issues that it believes

are often overlooked.” PragerU does not confer certificates

or degrees. Instead, the organization creates short videos for

high-school, college, and graduate school-age audiences and

shares them on the Internet. PragerU has posted hundreds of

its videos on a broad range of socio-political issues on

YouTube.

YouTube hosts user-generated videos and related

content on its eponymous platform. YouTube is “the

world’s largest forum in which the public may post and

watch video based content.” Around 400 hours of video

content are uploaded to the platform hourly. Indeed, “more

video content has been uploaded” to YouTube “than has

been created by the major U.S. television networks in

30 years.” “[M]ore than 500 million hours” of those videos

are watched each day.

YouTube invites the public to post video and other

content on its platform and is “committed to fostering a

community where everyone’s voice can be heard.” Subject

to the Terms of Service and Community Guidelines that a

user must accept before posting a video, YouTube has

reserved the right to remove or restrict content. YouTube

may remove content that violates its Terms of Service, or

restrict otherwise objectionable videos (even if they do not

violate the Terms of Service), such as those deemed to be

age-inappropriate.

1

This background is based on PragerU’s complaint.

PRAGER UNIVERSITY V. GOOGLE 7

At issue here is YouTube’s Restricted Mode, which,

when activated by a user, makes unavailable certain age-

inappropriate content. In addition to individual users,

institutions such as libraries, schools, and businesses can

turn on Restricted Mode. On average, 1.5–2% of users view

YouTube through Restricted Mode.

According to YouTube’s “Restricted Mode Guidelines,”

videos that contain potentially mature content—such as

videos about “[d]rugs and alcohol,” “[s]exual situations,”

“[v]iolence” (including “natural disasters and tragedies, or

even violence in the news”), and other “[m]ature subjects”

(such as “[v]ideos that cover specific details about events

related to terrorism, war, crime, and political conflicts”)—

may become unavailable in Restricted Mode. The tagging is

done either by an automated algorithm that examines certain

signals like “the video’s metadata, title, and the language

used in the video,” or manually by a user. When a video is

tagged, YouTube informs the content creator, who may

appeal the classification. YouTube’s human reviewers then

evaluate the decision.

YouTube tagged several dozen of PragerU’s videos as

appropriate for the Restricted Mode. YouTube also

“demonetized” some of PragerU’s videos, which means

third parties cannot advertise on those videos. PragerU

appealed the classifications through YouTube’s internal

process, but at least some of the videos remain restricted or

demonetized.

PragerU sued YouTube and its parent company, Google,

LLC, on two federal claims—violation of the First

Amendment, and false advertising under the Lanham Act,

15 U.S.C. § 1125(a)(1)(B)—as well as various state law

claims.

8 PRAGER UNIVERSITY V. GOOGLE

The district court denied PragerU’s motion for

preliminary injunction to compel YouTube to declassify the

restricted videos. The court also granted YouTube’s motion

to dismiss, with leave to amend the federal claims. Instead

of filing an amended complaint, PragerU appealed.

ANALYSIS

I. THE FIRST AMENDMENT CLAIM

PragerU’s claim that YouTube censored PragerU’s

speech faces a formidable threshold hurdle: YouTube is a

private entity. The Free Speech Clause of the First

Amendment prohibits the government—not a private

party—from abridging speech. See Halleck, 139 S.Ct. at

1928 (the Free Speech Clause “prohibits only governmental

abridgment of speech,” and “does not prohibit private

abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507,

513 (1976) (“the constitutional guarantee of free speech is a

guarantee only against abridgment by government, federal

or state”). PragerU does not dispute that YouTube is a

private entity that operates its platform without any state

involvement. 2

These are not antiquated principles that have lost their

vitality in the digital age. In Halleck the Supreme Court

2

PragerU’s citation to cases involving the government’s regulation

of online speech are inapposite. Because the government was the

relevant actor, state action was not contested. See Packingham v. North

Carolina, 137 S. Ct. 1730, 1733–34 (2017) (state passed law making it

a felony for registered sex offenders to use social media websites that

can be accessed by minors); Reno v. Am. Civil Liberties Union, 521 U.S.

844, 849, 859–60 (1997) (Congress passed statute criminalizing

transmitting or displaying sexually explicit material to minors using the

Internet).

PRAGER UNIVERSITY V. GOOGLE 9

considered whether a private entity that operates a public

access channel on a cable system is a state actor. 139 S. Ct.

at 1926. The plaintiffs tested a theory that resembled

PragerU’s approach, claiming that a private entity becomes

a state actor through its “operation” of the private property

as “a public forum for speech.” Id. at 1930. The Court

rejected this argument. Such a rule would eviscerate the

state action doctrine’s distinction between government and

private entities because “all private property owners and

private lessees who open their property for speech would be

subject to First Amendment constraints.” Id. at 1930–31.

Instead, the Court reaffirmed 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.” Id. at 1930.

Importantly, private property does not “lose its private

character merely because the public is generally invited to

use it for designated purposes.” Lloyd Corp. v. Tanner,

407 U.S. 551, 569 (1972). YouTube may be a paradigmatic

public square on the Internet, but it is “not transformed” into

a state actor solely by “provid[ing] a forum for speech.”

Halleck, 129 S. Ct. at 1930, 1934.

Twenty years ago, in the early years of litigation

involving the Internet, we held that a private entity hosting

speech on the Internet is not a state actor. We concluded that

America Online (“AOL”)—a service that provided, among

other things, internet service, web portal, and emails—was

not “an instrument or agent of the government.” Howard v.

Am. Online Inc., 208 F.3d 741, 754 (9th Cir. 2000) (internal

quotation marks omitted); see also Green v. Am. Online

(AOL), 318 F.3d 465, 472 (3d Cir. 2003) (the “contention[]

that AOL is transformed into a state actor … because AOL

opens its network to the public whenever an AOL member

10 PRAGER UNIVERSITY V. GOOGLE

accesses the Internet and receives email or other messages

from non-members of AOL” is unpersuasive). That

principle has not changed. Although we have not recently

spoken on the issue, other courts have uniformly concluded

that digital internet platforms that open their property to

user-generated content do not become state actors. 3 These

cases follow the Supreme Court’s state action precedent and

are consistent with its recent teaching in Halleck.

In an effort to distinguish controlling precedent, PragerU

argues that YouTube is a state actor because it performs a

public function. It is true that a private entity may be deemed

a state actor when it conducts a public function, but the

relevant function “must be both traditionally and exclusively

governmental.” Lee v. Katz, 276 F.3d 550, 555 (9th Cir.

2002). This test is difficult to meet. It is “not enough” that

the relevant function is something that a government has

“exercised … in the past, or still does” or “that the function

serves the public good or the public interest in some way.”

3

See, e.g., Freedom Watch, Inc. v. Google, Inc., 368 F. Supp. 3d 30,

40 (D.D.C. 2019) (“Facebook and Twitter … are private businesses that

do not become ‘state actors’ based solely on the provision of their social

media networks to the public.”), appeal filed, No. 19-7030 (D.C. Cir.

2019); Green v. YouTube, LLC, 2019 WL 1428890, at *4 (D.N.H. Mar.

13, 2019) (there is no “state action giving rise to the alleged violations

of [the plaintiff’s] First Amendment rights” by YouTube and other

platforms that are “all private companies”); Nyabwa v. FaceBook, 2018

WL 585467, at *1 (S.D. Tex. Jan. 26, 2018) (“Because the First

Amendment governs only governmental restrictions on speech, [the

plaintiff] has not stated a cause of action against FaceBook.”); Shulman

v. Facebook.com, 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017)

(Facebook is not a state actor); Forbes v. Facebook, Inc., 2016 WL

676396, at *2 (E.D.N.Y. Feb. 18, 2016) (“Facebook is a private

corporation” whose actions may not “be fairly attributable to the state”);

Doe v. Cuomo, 2013 WL 1213174, at *9 (N.D.N.Y. Feb. 25, 2013)

(Facebook is not a state actor under the joint action test).

PRAGER UNIVERSITY V. GOOGLE 11

Halleck, 139 S.Ct. at 1928–29. Rather, the relevant function

must have been “traditionally the exclusive prerogative of

the [s]tate.” Rendell-Baker v. Kohn, 457 U.S. 830, 842

(1982) (internal quotation marks omitted). Indeed, “[w]hile

many functions have been traditionally performed by

governments,” Flagg Bros., Inc. v. Brooks, 436 U.S. 149,

158 (1978), the lean list of the “very few” recognized public

functions includes “running elections,” “operating a

company town,” and not much else, Halleck, 139 S.Ct.

at 1929 (internal quotation marks omitted); see, e.g., Terry

v. Adams, 345 U.S. 461, 468–70 (1953) (elections); Marsh

v. Alabama, 326 U.S. 501, 505–09 (1946) (company town).

The relevant function performed by YouTube—hosting

speech on a private platform—is hardly “an activity that only

governmental entities have traditionally performed.”

Halleck, 139 S.Ct. at 1930. Private parties like “[g]rocery

stores” and “[c]omedy clubs” have “open[ed] their property

for speech.” Id. YouTube does not perform a public

function by inviting public discourse on its property. “The

Constitution by no means requires such an attenuated

doctrine of dedication of private property to public use.”

Lloyd Corp., 407 U.S. at 569. Otherwise “every retail and

service establishment in the country” would be bound by

constitutional norms. Cent. Hardware Co. v. NLRB,

407 U.S. 539, 547 (1972) (private parking lots do not

become state actors just because they are open to the public).

That YouTube is ubiquitous does not alter our public

function analysis. PragerU argues that the pervasiveness of

YouTube binds it to the First Amendment because Marsh

teaches that “[t]he more an owner, for his advantage, opens

up his property for use by the public in general, the more do

his rights become circumscribed by the … constitutional

rights of those who use it.” 326 U.S. at 506. PragerU’s

12 PRAGER UNIVERSITY V. GOOGLE

reliance on Marsh is not persuasive. In Marsh, the Court

held that a private entity operating a company town is a state

actor and must abide by the First Amendment. Id. at 505–

08. But in Lloyd Corp. and Hudgens, the Court

unequivocally confined Marsh’s holding to the unique and

rare context of “company town[s]” and other situations

where the private actor “perform[s] the full spectrum of

municipal powers.” Lloyd Corp., 407 U.S. at 569; see also

Hudgens, 424 U.S. at 518–20.

YouTube does not fit the bill. Unlike the company town

in Marsh, YouTube merely operates a platform for user-

generated video content; it does not “perform[] all the

necessary municipal functions,” Flagg Bros., 436 U.S.

at 159, nor does it operate a digital business district that has

“all the characteristics of any other American town,” Marsh,

326 U.S. at 502.

YouTube also does not conduct a quintessential public

function through regulation of speech on a public forum.

Lee, 276 F.3d at 556 (the “functionally exclusive regulation

of free speech within … a public forum[] is a traditional and

exclusive function of the State”). To characterize YouTube

as a public forum would be a paradigm shift. 4

Shifting gears slightly, PragerU posits that a private

entity can be converted into a public forum if its property is

opened up for public discourse. 5 This theory finds no

4

PragerU’s citation to Lee does not solve the state action problem.

In Lee, the parties conceded that the property, which was owned by the

municipal government, was a traditional public forum. 276 F.3d at 555–

56. No such concession or government involvement exists here.

5

PragerU appears to conflate the public forum analysis for the

threshold state action inquiry with the designated public forum analysis

PRAGER UNIVERSITY V. GOOGLE 13

support in our precedent. As the Supreme Court has

explained, to create a public forum, the government must

intentionally open up the property to public discourse. See

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

473 U.S. 788, 802 (1985) (“The government does not create

a public forum by inaction or by permitting limited

discourse, but only by intentionally opening a nontraditional

forum for public discourse.”). That YouTube is not owned,

leased, or otherwise controlled by the government

undermines PragerU’s public forum theory. PragerU cannot

avoid the state action question by calling YouTube a public

forum. Halleck, 139 S.Ct. at 1930 (casting a private property

as a public forum “ignores the threshold state-action

question”).

PragerU’s attempt to foist a “public forum” label on

YouTube by claiming that YouTube declared itself a public

forum also fails. YouTube’s representation that it is

committed to freedom of expression, or a single statement

made by its executive before a congressional committee that

she considers YouTube to be a “neutral public fora,” cannot

somehow convert private property into a public forum.

Whether a property is a public forum is not a matter of

election by a private entity. We decline to subscribe to

PragerU’s novel opt-in theory of the First Amendment. See

Cent. Hardware, 407 U.S. at 547.

Both sides say that the sky will fall if we do not adopt

their position. PragerU prophesizes living under the tyranny

for determining the appropriate First Amendment balancing test. See,

e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (that a

city-leased theater is a designated public forum determines the level of

permitted speech regulation by the government). We interpret PragerU’s

use of the term “designated public forum” to mean “public forum” in the

context of the state action doctrine.

14 PRAGER UNIVERSITY V. GOOGLE

of big-tech, possessing the power to censor any speech it

does not like. YouTube and several amicus curiae, on the

other hand, foretell the undoing of the Internet if online

speech is regulated. While these arguments have interesting

and important roles to play in policy discussions concerning

the future of the Internet, they do not figure into our

straightforward application of the First Amendment.

Because the state action doctrine precludes constitutional

scrutiny of YouTube’s content moderation pursuant to its

Terms of Service and Community Guidelines, we affirm the

district court’s dismissal of PragerU’s First Amendment

claim.

II. THE LANHAM ACT FALSE ADVERTISING CLAIM

PragerU’s other federal claim—false advertising under

the Lanham Act—also fails. To establish a claim under

15 U.S.C. § 1125(a)(1)(B), PragerU must allege a “false or

misleading representation of fact” “in commercial

advertising or promotion” that “misrepresents the nature,

characteristics, qualities, or geographic origin of his or her

or another person’s goods, services, or commercial

activities.” See Southland Sod Farms v. Stover Seed Co.,

108 F.3d 1134, 1139 & n.2 (9th Cir. 1997). Because none

of the alleged statements are actionable under the Lanham

Act, we affirm the district court’s dismissal of this claim.

YouTube’s statements concerning its content

moderation policies do not constitute “commercial

advertising or promotion” as the Lanham Act requires.

15 U.S.C. § 1125(a)(1)(B). The statements about Restricted

Mode were made to explain a user tool, not for a promotional

purpose to “penetrate the relevant market” of the viewing

public. Fashion Boutique of Short Hills, Inc. v. Fendi USA,

Inc., 314 F.3d 48, 57 (2d Cir. 2002); see also Coastal

Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725,

PRAGER UNIVERSITY V. GOOGLE 15

735 (9th Cir. 1999). Not all commercial speech is

promotional. Fashion Boutique of Short Hills, 314 F.3d

at 57 (“the language of the [Lanham] Act cannot be stretched

so broadly as to encompass all commercial speech”).

PragerU did not allege any facts to overcome the

commonsense conclusion that representations related to

Restricted Mode, such as those in the terms of service,

community guidelines, and contracts are not advertisements

or a promotional campaign. First Health Grp. Corp. v. BCE

Emergis Corp., 269 F.3d 800, 804 (7th Cir. 2001)

(statements in a “contract” are not “commercial advertising

or promotion”); Interlink Prods. Int’l, Inc. v. Cathy Trading,

LLC, 2017 WL 931712, at *5 (D.N.J. Mar. 9, 2017)

(“instruction manuals are not advertisements or

promotions”).

Nor was the designation of certain PragerU videos for

Restricted Mode part of an advertising or promotion or a

misrepresentation as to the videos. The designation and the

reason for tagging videos to be unavailable in Restricted

Mode are not made available to the public. See Coastal

Abstract Serv., Inc., 173 F.3d at 735.

Furthermore, the fact that certain PragerU videos were

tagged to be unavailable under Restricted Mode does not

imply any specific representation about those videos.

Although a false advertising claim may be based on implied

statements, those statement must be both specific and

communicated as to “deceive[] a significant portion of the

recipients.” William H. Morris Co. v. Grp. W, Inc., 66 F.3d

255, 258 (9th Cir. 1995). The only statement that appears on

the platform is that the video is “unavailable with Restricted

Mode enabled.” This notice does not have “a tendency to

mislead, confuse or deceive” the public about the nature of

16 PRAGER UNIVERSITY V. GOOGLE

PragerU’s videos. Am. Home Prods. Corp. v. Johnson &

Johnson, 577 F.2d 160, 165 (2d Cir. 1978).

YouTube’s braggadocio about its commitment to free

speech constitutes opinions that are not subject to the

Lanham Act. Lofty but vague statements like “everyone

deserves to have a voice, and that the world is a better place

when we listen, share and build community through our

stories” or that YouTube believes that “people should be

able to speak freely, share opinions, foster open dialogue,

and that creative freedom leads to new voices, formats and

possibilities” are classic, non-actionable opinions or puffery.

See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038,

1053 (9th Cir. 2008). Similarly, YouTube’s statements that

the platform will “help [one] grow,” “discover what works

best,” and “giv[e] [one] tools, insights and best practices” for

using YouTube’s products are impervious to being

“quantifiable,” and thus are non-actionable “puffery.” Id.

The district court correctly dismissed the Lanham Act claim.

AFFIRMED.