YouTube's terms of service/content policies aren't commercial advertising or promotion

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.