On February 26, a three-judge panel of the U.S. Appeals for the Ninth Circuit upheld the district court’s ruling in Prager University v. Google, et al., rejecting claims that YouTube improperly censors content. Wilson Sonsini represented YouTube in the matter.

Prager University (PragerU) is an organization that creates short political videos and shares them on the internet, including on YouTube. Some of the videos deal with adult-oriented issues.  YouTube offers a functionality called Restricted Mode that enables users to limit their exposure to videos that may be objectionable to younger or more sensitive users. YouTube determined that some of PragerU's more provocative videos would be unavailable to users that chose to employ Restricted Mode. PragerU sued claiming that because YouTube functioned as the modern-day equivalent of a public square, YouTube should be deemed a state actor and that its “censorship” of PragerU’s videos violated the First Amendment. PragerU also claimed that YouTube had engaged in False Advertising in violation of the Lanham Act by impliedly denigrating PragerU’s videos and by misdescribing itself as a platform for free speech. There have been several other similar cases filed since.  

In affirming the district court’s earlier dismissal of the case, the Ninth Circuit wrote: “[P]rivate property does not ‘lose its private character merely because the public is generally invited to use it for designated purposes.’ 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.’” The Court of Appeals also confirmed that YouTube did not violate the Lanham Act because its statements either were not in “commercial advertising” or were mere “puffery.” Both aspects of the decision are likely to have lasting ramifications for businesses and the Internet as a whole.

The Wilson Sonsini team representing YouTube included partners Brian Willen, Lauren White, and David Kramer, and associate Amit Gressel.

Please see the opinion for more information.