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 creates short videos for high-school, college, and graduate school-age audiences and shares them on YouTube.
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 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.
At issue here is YouTube’s Restricted Mode, which, when activated by a user, makes unavailable certain age-inappropriate content. 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’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”).
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.” 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. These cases follow the Supreme Court’s state action precedent and are consistent with its recent teaching in Halleck.
PragerU argues that YouTube is a state actor because it performs a public function. The relevant function performed by YouTube—hosting speech on a private platform—is hardly “an activity that only governmental entities have traditionally performed.” Private parties like “[g]rocery stores” and “[c]omedy clubs” have “open[ed] their property for speech.”
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.” 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, nor does it operate a digital business district that has all the characteristics of any other American town.
YouTube’s representation that it is committed to freedom of expression 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.
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.