Prager Univ. v. Google LLC, No. 18-15712 (9th Cir. Feb. 26,
2020)

YouTube isn’t a public forum and didn’t engage in false
advertising by telling users it supported freedom of expression. Prager “University”
(it’s not) complained that YT was discriminating against its conservative
viewpoints by putting some PragerU content in Restricted Mode, which makes it
unavailable to 1.5-2% of users. YT’s guidelines say that videos that contain
potentially mature content—such as videos about “[d]rugs and alcohol,”
“[s]exual situations,” “[v]iolence,” and other “[m]ature subjects”— may become unavailable
in Restricted Mode. The restriction 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; there is an appeals process
that involves human review. YT tagged several dozen of PragerU’s videos for Restricted
Mode and demonetized some videos.  PragerU
appealed but was not entirely successful.

The ubiquity of YT didn’t make it public. Marsh v.
Alabama is about a company town where the private actor “perform[s] the
full spectrum of municipal powers,” which YT is not. And even if YT has said
that it’s committed to freedom of expression and an Alphabet executive stated before
a congressional committee that she considers YT a “neutral public for[um],”
private companies can’t self-designate as public fora. The First Amendment is
not opt-in.

The Lanham Act false advertising claim also failed. YT’s
statements about its content moderation policies weren’t “commercial
advertising or promotion.”  Its
statements “were made to explain a user tool, not for a promotional purpose to ‘penetrate
the relevant market’ of the viewing public.  Not all commercial speech is promotional.” Likewise,
the designation of PragerU videos for Restricted Mode wasn’t advertising or
promotion, and it also wasn’t a representation. The designation, and the reason
therefor, are not made available to the public. And the fact that some PragerU
videos were tagged to be unavailable in Restricted Mode didn’t imply any
specific representation. Even implied falsity must be specific and communicated
to a substantial number of consumers.

Likewise, YT’s “braggadocio about its commitment to free
speech” was puffery/opinion, not an actionable factual representation. Statements
that YT 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” and 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 were unquantifiable puffery.