Moderated platforms often struggle to draw workable lines between content that is permitted, and content that’s not. Every online forum for user speech struggles with this problem, not just the dominant social media platforms. Laws protecting companies’ ability to moderate their platforms free from legal mandates benefit the public, and help to create a diverse array of online spaces, with varied editorial views and community norms.
In April, EFF told California’s Sixth Court of Appeals that the Santa Clara Superior Court was correct to dismiss a lawsuit by Prager University against YouTube and its parent company, Google. The lawsuit claimed that Google’s content moderation was illegal censorship. Prager University is an educational and media nonprofit with a conservative perspective, which sued under California state law after its arguments were rejected by the U.S. Court of Appeals for the Ninth Circuit in 2020. The Ninth Circuit correctly held that, contrary to Prager’s arguments, YouTube is not a government actor bound by First Amendment limits simply because it hosts a forum for public speech.
Under a California Supreme Court decision in Robins v. Pruneyard Shopping Center, there is a narrow public forum test for a privately-owned space’s ability to curate speech. In our brief, we emphasize that even if the law were applied to non-physical spaces, it does not transform YouTube’s curation of Prager’s videos into prohibited censorship. YouTube and other social media platforms that moderate content are primarily, if not exclusively, expressive venues. Unlike a shopping center or grocery store, an online platform’s editorial vision is often at the core of its business. Additionally, social media platforms are not functionally public forums: they are not open to the public to come and go as they please. YouTube’s action against Prager is one of millions of decisions it made and continues to make. Those decision are part of the editorial discretion that platforms have as to which users and what content they allow. Prager’s broad interpretation of the law would upend those legal protections—to everyone’s detriment.