In 2017, PragerU filed suit against Google and YouTube over the company's content policies. The educational organization made the same claims that many content creators have made over the past few years - that YouTube's policies are inconsistent and applied more often against publishers that disagree with the company's political stance. While a private organization generally has the ability to determine what happens attached to its name, PragerU argued that YouTube's position in the industry made it more like a public space. Because of that position, the company's content policies are tantamount to censorship.
Unfortunately for PragerU, the lawsuit was dismissed this week by a panel of three judges for a US appeals court. This was an upholding of a lower court's ruling. The judges wrote,
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.
The judges pointed to a Surpreme Court case which was similar and ended similarly. According to that ruling,
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.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum.
PragerU had argued that it wasn't the company's hosting of speech that made them subject to scrutiny, but the fact that the site claimed itself to be a public forum for free speech in front of Congress. By making that claim, they opened themselves up to legal scrutiny for infringing on the free speech of content creators. While the argument didn't ultimately work in the courts, it did bring the issue into the light. The organization is hoping that more people will look into what YouTube is up to with its content policies.