The January 16, 2019 post – Will Social Media Websites Become State Actors? – wondered how the U.S. Supreme Court would rule in Community Access Corp. v. Halleck, a case in which the Court was asked to consider whether the mere hosting of speech by others could transform a private entity into a “state actor” for purposes of the First Amendment.

The Supreme Court answered this question on June 17, 2019, holding that the First Amendment “prohibits only governmental abridgement of speech . . . [and] does not prohibit private abridgement of speech.” 139 S.Ct. 1921, 1928 (2019). The Court also held that “merely hosting speech by others . . . does not transform private entities into state actors subject to the First Amendment.” Id. at 1930.

On February 26, 2020, the United States Court of Appeals for the Ninth Circuit applied the holdings of Halleck in a dispute involving YouTube. In Prager University v. Google LLC, et al., 2020 U.S. App. Lexis 9131 (9^th Cir. Feb. 26, 2020), the plaintiff, made several arguments, including one based on the First Amendment, to enjoin YouTube from classifying several of plaintiff’s video uploads as being subject to YouTube’s “Restricted Mode” policy – a policy that permits YouTube to make certain content it deems age-inappropriate unavailable on the website. Plaintiff Prager University argued that YouTube was a public forum and, as such, could not restrict uploaded videos based on their content.

The Ninth Circuit soundly rejected Prager University’s argument. Relying on the Supreme Court’s decision in Halleck, the Ninth Circuit held that (1) the Internet did not alter the state actor requirement of the First Amendment and (2) YouTube is a private entity. In sum, the court stated, “the state action doctrine precludes constitutional scrutiny of YouTube’s content moderation.”  Id. The court also noted that other federal courts had similarly concluded that “digital internet platforms that open their property to user-generated content do not become state actors.”

The Halleck and Prager University decisions reaffirm that the First Amendment protects against the government infringing free speech right, and, in most instances, decisions of  private entities may not be challenged based on the First Amendment.

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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Rob Nussbaum

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.

For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.