PragerU Lawsuit Against YouTube: Claims, Ruling, and Impact

PragerU’s lawsuit against YouTube was a federal case filed in October 2017 alleging that Google and YouTube violated the First Amendment and federal false advertising law by placing dozens of PragerU’s conservative videos behind YouTube’s Restricted Mode filter. Both the U.S. District Court for the Northern District of California and the Ninth Circuit Court of Appeals rejected the claims, holding that YouTube is a private company, not a government actor, and is under no constitutional duty to host or promote any particular speech.

What PragerU Claimed YouTube Did Wrong

Prager University Foundation, a conservative nonprofit founded in 2009 by radio host Dennis Prager and Allen Estrin, produces short online videos on political, historical, and cultural topics.¹ By 2017, PragerU said at least 37 of its videos had been placed in YouTube’s Restricted Mode, which limits access for users who enable the filter, including in many schools and libraries. Restricted titles covered subjects such as the legal creation of Israel, the Korean War, campus viewpoint diversity, and a video titled “Are the Police Racist?”²

PragerU filed suit on October 23, 2017, in the Northern District of California, case number 5:17-cv-06064-LHK. The complaint raised claims under the First Amendment, the Lanham Act’s false advertising provisions, the California Constitution’s free speech clause, and California civil rights law. PragerU also asked for a preliminary injunction ordering YouTube to remove the “restricted” tag from its videos and sought discovery into YouTube’s algorithm.²³

The First Amendment theory rested on the idea that YouTube had grown so dominant in online video, controlling roughly 95 percent of public video engagement by PragerU’s count, that it functioned as a modern public forum. PragerU’s lawyers invoked Marsh v. Alabama, the Supreme Court’s 1946 decision holding that a company-owned town could not ban distribution of religious literature, and argued YouTube was the digital equivalent of a company town.³

The Lanham Act theory took aim at YouTube’s public messaging. PragerU pointed to statements YouTube had made, including to Congress, describing itself as a platform committed to free expression and open dialogue. Restricting PragerU’s videos while making those statements, PragerU argued, amounted to false advertising, and the Restricted Mode tag itself falsely implied the content was inappropriate, misrepresenting the “nature, characteristics and qualities” of YouTube’s services.⁴ Dennis Prager described the practices as “arbitrary and capricious use of their ‘restricted mode’ and ‘demonetization’ to restrict conservative political thought.”²

The District Court Dismissal

U.S. District Judge Lucy H. Koh dismissed the case on March 26, 2018. She held that the federal claims failed because Google and YouTube “are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website.”⁵ The First Amendment, in other words, restrains the government, not private companies.

Judge Koh dismissed the federal claims with leave to amend but dismissed four state-law claims with prejudice, reasoning that the reach of California’s free speech protections in the social media context was a question better left to California state courts.⁵ PragerU chose not to amend and appealed instead.⁶

The Ninth Circuit’s Ruling

On February 26, 2020, a three-judge panel of the Ninth Circuit affirmed the dismissal. The panel consisted of Circuit Judges M. Margaret McKeown and Jay S. Bybee, with District Judge Fernando J. Gaitan, Jr. sitting by designation.⁴

YouTube Is Not a State Actor

On the First Amendment claim, the court relied heavily on the Supreme Court’s 2019 decision in Manhattan Community Access Corp. v. Halleck, which held that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors.” The panel rejected PragerU’s argument that YouTube’s size or ubiquity converted it into a government-like entity, and turned aside what it called PragerU’s “novel opt-in theory,” the notion that a platform becomes a public forum because its executives publicly describe it as open to all voices or say as much to Congress. The court compared YouTube to grocery stores and comedy clubs, which host speech but are not state actors.⁴

At oral argument, Judge McKeown observed that while YouTube is a public forum in a “colloquial sense,” that does not make it a First Amendment public forum, and that although Google possesses “almost the equivalent of state power,” the observation carried no legal weight under existing doctrine. Judge Bybee suggested users unhappy with YouTube’s restrictions could “get their own channel.”³ The written opinion drew the line explicitly: “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.”⁴

The False Advertising Claim Also Failed

The Ninth Circuit rejected the Lanham Act claim in three parts. YouTube’s terms of service, community guidelines, and Restricted Mode explanations were not “commercial advertising or promotion” but explanations of a user tool. The “unavailable with Restricted Mode enabled” notice was not a specific representation about the quality or nature of PragerU’s content and lacked the capacity to mislead. And YouTube’s broader statements about being committed to free expression were “classic, non-actionable opinions or puffery,” too vague and unquantifiable to support a false advertising claim.⁴

What the Ruling Means for Platform Moderation

The decision stands as one of the clearest federal appellate statements that social media platforms are private entities free to moderate content without triggering constitutional scrutiny. The Electronic Frontier Foundation said the ruling affirmed that “digital Internet platforms that open their property to user-generated content do not become state actors.”⁷ Legal commentators noted that a contrary ruling would have made it effectively impossible for platforms to enforce their own community guidelines or terms of service.⁸

The same logic worked across the political spectrum. In Divino Group LLC v. Google LLC, LGBTQ+ creators brought similar claims alleging YouTube’s algorithms suppressed their content. The two cases, from opposite viewpoints, arrived at the same legal reality: platforms retain broad discretion over how they curate what appears on their services.⁹

The Supreme Court reinforced that direction in Moody v. NetChoice, LLC, decided July 1, 2024. Reviewing Florida and Texas laws that sought to bar platforms from removing or restricting certain political content, the Court held that when platforms use algorithms to filter, prioritize, and label user content, they are exercising protected “editorial discretion” under the First Amendment, akin to the editorial judgment of newspapers. The Court rejected the argument that states have a legitimate interest in forcing platforms to “rebalance the speech market” or “un-bias” content, though it vacated the lower court decisions and sent the cases back for closer analysis of how the state laws would apply to specific platform functions beyond news feeds. Scholars noted that while Moody left some questions open, its skepticism toward sweeping regulation of moderation signals that claims like PragerU’s face an even steeper path going forward.¹⁰¹¹

1
The Guardian. PragerU Climate Change Denier Republican Donors
2
Ars Technica. PragerU Sues YouTube, Says It Censors Conservative Videos
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Courthouse News. Conservative Group Says First Amendment Should Apply to YouTube
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Ninth Circuit Court of Appeals. Prager University v. Google LLC, No. 18-15712
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Metropolitan News-Enterprise. PragerU v. Google Dismissal Coverage
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Quimbee. Prager University v. Google LLC
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Electronic Frontier Foundation. Ninth Circuit: Private Social Media Platforms Are Not Bound by the First Amendment
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Harvard JOLT Digest. Prager University v. YouTube: Ninth Circuit Dismissal Affirms YouTube’s Status as Private Forum
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Harvard JOLT Digest. PragerU v. YouTube: Does the First Amendment Apply to the Internet’s Public Square
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Supreme Court of the United States. Moody v. NetChoice, LLC
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Journal of Free Speech Law. Langvardt and Rozenshtein on Moody v. NetChoice