FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRAGER UNIVERSITY,

Plaintiff-Appellant,

v.

GOOGLE LLC, FKA Google, Inc.; 

YOUTUBE, LLC,

Defendants-Appellees.

No. 18-15712

D.C. No.

5:17-cv-06064-

LHK

OPINION

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Argued and Submitted August 27, 2019

Seattle, Washington

Filed February 26, 2020

Before: M. Margaret McKeown and Jay S. Bybee, Circuit 

Judges, and Fernando J. Gaitan, Jr.,* District Judge.

Opinion by Judge McKeown

* The Honorable Fernando J. Gaitan, Jr., United States District Judge 

for the Western District of Missouri, sitting by designation.
2 PRAGER UNIVERSITY V. GOOGLE

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of an 

action brought against YouTube and its parent company, 

Google, LLC, by a nonprofit educational and media 

organization alleging a violation of the First Amendment 

and false advertising under the Lanham Act, 15 U.S.C. 

§ 1125(a)(1)(B), as well as various state law claims.

Addressing the First Amendment claims, the panel held 

that despite YouTube’s ubiquity and its role as a publicfacing platform, it remains a private forum, not a public 

forum subject to judicial scrutiny under the First 

Amendment. The panel noted that just last year, the 

Supreme Court held that “merely hosting speech by others is 

not a traditional, exclusive public function and does not 

alone transform private entities into state actors subject to 

First Amendment constraints.” Manhattan Cmty. Access 

Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). The panel 

held that the Internet does not alter this state action 

requirement of the First Amendment. The panel therefore 

rejected plaintiff’s assertion that YouTube is a state actor 

because it performs a public function.

Addressing the false advertising claim under the Lanham 

Act, the panel held that YouTube’s statements concerning its 

content moderation policies do not constitute “commercial 

advertising or promotion” as the Lanham Act requires. Nor 

was YouTube’s designation of certain of plaintiff’s videos 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
PRAGER UNIVERSITY V. GOOGLE 3

for Restricted Mode part of an advertising or promotion or a 

misrepresentation as to the videos. Finally, the panel held 

that YouTube’s braggadocio about its commitment to free 

speech constituted opinions that are not subject to the 

Lanham Act.
4 PRAGER UNIVERSITY V. GOOGLE

COUNSEL

Peter Obstler (argued), Browne George Ross LLP, San 

Francisco, California; Pete Wilson and Eric M. George, 

Browne George Ross LLP, Los Angeles, California; for 

Plaintiff-Appellant.

Brian M. Willen (argued), Wilson Sonsini Goodrich & 

Rosati, New York, New York; David H. Kramer, Lauren 

Gallo White, and Amit Q. Gressel, Wilson Sonsini Goodrich 

& Rosati, Palo Alto, California; for Defendants-Appellees.

Colleen E. Roh Sinzdak, Hogan Lovells US LLP, 

Washington, D.C.; Daryl Joseffer and Jonathan D. Urick, 

National Chamber Litigation Center, Washington, D.C.; for 

Amicus Curiae Chamber of Commerce of the United States

of America.

David Greene and Sophia Cope, Electronic Frontier 

Foundation, San Francisco, California, for Amicus Curiae 

Electronic Frontier Foundation.

Donald B. Verrilli Jr. and Chad Golder, Munger Tolles & 

Olson LLP, Washington, D.C., for Amicus Curiae The 

Computer & Communications Industry Association.
PRAGER UNIVERSITY V. GOOGLE 5

OPINION

McKEOWN, Circuit Judge:

Using private property as a forum for public discourse is 

nothing new. Long before the Internet, people posted 

announcements on neighborhood bulletin boards, debated 

weighty issues in coffee houses, and shouted each other 

down in community theaters. Juxtaposed with today’s 

digital platforms, these analog means seem quaint. 

YouTube, LLC alone has more than 1.3 billion users—more 

than 30 million visitors every day—and 400 hours of video 

uploaded every hour.

Despite YouTube’s ubiquity and its role as a publicfacing platform, it remains a private forum, not a public 

forum subject to judicial scrutiny under the First 

Amendment. Prager University (“PragerU”) sees things 

differently and claims YouTube’s outsize power to moderate 

user content is a threat to the fair dissemination of 

“conservative viewpoints and perspectives on public issues,” 

and that YouTube has become a public forum.

PragerU runs headfirst into two insurmountable 

barriers—the First Amendment and Supreme Court 

precedent. Just last year, the Court held that “merely hosting 

speech by others is not a traditional, exclusive public 

function and does not alone transform private entities into 

state actors subject to First Amendment constraints.” 

Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 

1930 (2019). The Internet does not alter this state action 

requirement of the First Amendment. We affirm the district 

court’s dismissal of PragerU’s complaint.
6 PRAGER UNIVERSITY V. GOOGLE

BACKGROUND1

PragerU is a nonprofit educational and media 

organization with a mission to “provide conservative 

viewpoints and perspective on public issues that it believes 

are often overlooked.” PragerU does not confer certificates 

or degrees. Instead, the organization creates short videos for 

high-school, college, and graduate school-age audiences and 

shares them on the Internet. PragerU has posted hundreds of 

its videos on a broad range of socio-political issues on 

YouTube.

YouTube hosts user-generated videos and related 

content on its eponymous platform. YouTube is “the 

world’s largest forum in which the public may post and 

watch video based content.” Around 400 hours of video 

content are uploaded to the platform hourly. Indeed, “more 

video content has been uploaded” to YouTube “than has 

been created by the major U.S. television networks in 

30 years.” “[M]ore than 500 million hours” of those videos 

are watched each day.

YouTube invites the public to post video and other 

content on its platform and is “committed to fostering a 

community where everyone’s voice can be heard.” Subject 

to the Terms of Service and Community Guidelines that a 

user must accept before posting a video, YouTube has 

reserved the right to remove or restrict content. YouTube 

may remove content that violates its Terms of Service, or 

restrict otherwise objectionable videos (even if they do not 

violate the Terms of Service), such as those deemed to be 

age-inappropriate.

1 This background is based on PragerU’s complaint.
PRAGER UNIVERSITY V. GOOGLE 7

At issue here is YouTube’s Restricted Mode, which, 

when activated by a user, makes unavailable certain ageinappropriate content. In addition to individual users, 

institutions such as libraries, schools, and businesses can 

turn on Restricted Mode. On average, 1.5–2% of users view 

YouTube through Restricted Mode.

According to YouTube’s “Restricted Mode Guidelines,” 

videos that contain potentially mature content—such as 

videos about “[d]rugs and alcohol,” “[s]exual situations,” 

“[v]iolence” (including “natural disasters and tragedies, or 

even violence in the news”), and other “[m]ature subjects” 

(such as “[v]ideos that cover specific details about events 

related to terrorism, war, crime, and political conflicts”)—

may become unavailable in Restricted Mode. The tagging 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. When a video is 

tagged, YouTube informs the content creator, who may 

appeal the classification. YouTube’s human reviewers then 

evaluate the decision.

YouTube tagged several dozen of PragerU’s videos as 

appropriate for the Restricted Mode. YouTube also 

“demonetized” some of PragerU’s videos, which means 

third parties cannot advertise on those videos. PragerU 

appealed the classifications through YouTube’s internal 

process, but at least some of the videos remain restricted or 

demonetized.

PragerU sued YouTube and its parent company, Google, 

LLC, on two federal claims—violation of the First 

Amendment, and false advertising under the Lanham Act, 

15 U.S.C. § 1125(a)(1)(B)—as well as various state law 

claims.
8 PRAGER UNIVERSITY V. GOOGLE

The district court denied PragerU’s motion for 

preliminary injunction to compel YouTube to declassify the 

restricted videos. The court also granted YouTube’s motion 

to dismiss, with leave to amend the federal claims. Instead 

of filing an amended complaint, PragerU appealed.

ANALYSIS

I. THE FIRST AMENDMENT CLAIM

PragerU’s claim that YouTube censored PragerU’s 

speech faces a formidable threshold hurdle: YouTube is a 

private entity. The Free Speech Clause of the First 

Amendment prohibits the government—not a private 

party—from abridging speech. See Halleck, 139 S.Ct. at 

1928 (the Free Speech Clause “prohibits only governmental 

abridgment of speech,” and “does not prohibit private 

abridgment of speech”); Hudgens v. NLRB, 424 U.S. 507, 

513 (1976) (“the constitutional guarantee of free speech is a 

guarantee only against abridgment by government, federal 

or state”). PragerU does not dispute that YouTube is a 

private entity that operates its platform without any state 

involvement.2

These are not antiquated principles that have lost their 

vitality in the digital age. In Halleck the Supreme Court 

2 PragerU’s citation to cases involving the government’s regulation 

of online speech are inapposite. Because the government was the 

relevant actor, state action was not contested. See Packingham v. North 

Carolina, 137 S. Ct. 1730, 1733–34 (2017) (state passed law making it 

a felony for registered sex offenders to use social media websites that 

can be accessed by minors); Reno v. Am. Civil Liberties Union, 521 U.S. 

844, 849, 859–60 (1997) (Congress passed statute criminalizing 

transmitting or displaying sexually explicit material to minors using the 

Internet).
PRAGER UNIVERSITY V. GOOGLE 9

considered whether a private entity that operates a public 

access channel on a cable system is a state actor. 139 S. Ct. 

at 1926. The plaintiffs tested a theory that resembled 

PragerU’s approach, claiming that a private entity becomes 

a state actor through its “operation” of the private property 

as “a public forum for speech.” Id. at 1930. The Court 

rejected this argument. Such a rule would eviscerate the 

state action doctrine’s distinction between government and 

private entities because “all private property owners and 

private lessees who open their property for speech would be 

subject to First Amendment constraints.” Id. at 1930–31. 

Instead, the Court reaffirmed that “merely hosting speech by 

others is not a traditional, exclusive public function and does 

not alone transform private entities into state actors subject 

to First Amendment constraints.” Id. at 1930.

Importantly, private property does not “lose its private 

character merely because the public is generally invited to 

use it for designated purposes.” Lloyd Corp. v. Tanner, 

407 U.S. 551, 569 (1972). YouTube may be a paradigmatic 

public square on the Internet, but it is “not transformed” into 

a state actor solely by “provid[ing] a forum for speech.” 

Halleck, 129 S. Ct. at 1930, 1934.

Twenty years ago, in the early years of litigation 

involving the Internet, we held that a private entity hosting 

speech on the Internet is not a state actor. We concluded that 

America Online (“AOL”)—a service that provided, among 

other things, internet service, web portal, and emails—was 

not “an instrument or agent of the government.” Howard v. 

Am. Online Inc., 208 F.3d 741, 754 (9th Cir. 2000) (internal 

quotation marks omitted); see also Green v. Am. Online 

(AOL), 318 F.3d 465, 472 (3d Cir. 2003) (the “contention[] 

that AOL is transformed into a state actor ... because AOL 

opens its network to the public whenever an AOL member 
10 PRAGER UNIVERSITY V. GOOGLE

accesses the Internet and receives email or other messages 

from non-members of AOL” is unpersuasive). That 

principle has not changed. Although we have not recently 

spoken on the issue, other courts have uniformly concluded 

that digital internet platforms that open their property to 

user-generated content do not become state actors.3 These 

cases follow the Supreme Court’s state action precedent and 

are consistent with its recent teaching in Halleck.

In an effort to distinguish controlling precedent, PragerU 

argues that YouTube is a state actor because it performs a 

public function. It is true that a private entity may be deemed 

a state actor when it conducts a public function, but the 

relevant function “must be both traditionally and exclusively 

governmental.” Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 

2002). This test is difficult to meet. It is “not enough” that 

the relevant function is something that a government has 

“exercised ... in the past, or still does” or “that the function 

serves the public good or the public interest in some way.” 

3 See, e.g., Freedom Watch, Inc. v. Google, Inc., 368 F. Supp. 3d 30, 

40 (D.D.C. 2019) (“Facebook and Twitter ... are private businesses that 

do not become ‘state actors’ based solely on the provision of their social 

media networks to the public.”), appeal filed, No. 19-7030 (D.C. Cir. 

2019); Green v. YouTube, LLC, 2019 WL 1428890, at *4 (D.N.H. Mar.

13, 2019) (there is no “state action giving rise to the alleged violations 

of [the plaintiff’s] First Amendment rights” by YouTube and other 

platforms that are “all private companies”); Nyabwa v. FaceBook, 2018 

WL 585467, at *1 (S.D. Tex. Jan. 26, 2018) (“Because the First 

Amendment governs only governmental restrictions on speech, [the 

plaintiff] has not stated a cause of action against FaceBook.”); Shulman 

v. Facebook.com, 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017) 

(Facebook is not a state actor); Forbes v. Facebook, Inc., 2016 WL 

676396, at *2 (E.D.N.Y. Feb. 18, 2016) (“Facebook is a private 

corporation” whose actions may not “be fairly attributable to the state”); 

Doe v. Cuomo, 2013 WL 1213174, at *9 (N.D.N.Y. Feb. 25, 2013) 

(Facebook is not a state actor under the joint action test).
PRAGER UNIVERSITY V. GOOGLE 11

Halleck, 139 S.Ct. at 1928–29. Rather, the relevant function 

must have been “traditionally the exclusive prerogative of 

the [s]tate.” Rendell-Baker v. Kohn, 457 U.S. 830, 842 

(1982) (internal quotation marks omitted). Indeed, “[w]hile 

many functions have been traditionally performed by 

governments,” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 

158 (1978), the lean list of the “very few” recognized public 

functions includes “running elections,” “operating a 

company town,” and not much else, Halleck, 139 S.Ct. 

at 1929 (internal quotation marks omitted); see, e.g., Terry 

v. Adams, 345 U.S. 461, 468–70 (1953) (elections); Marsh 

v. Alabama, 326 U.S. 501, 505–09 (1946) (company town).

The relevant function performed by YouTube—hosting 

speech on a private platform—is hardly “an activity that only 

governmental entities have traditionally performed.” 

Halleck, 139 S.Ct. at 1930. Private parties like “[g]rocery 

stores” and “[c]omedy clubs” have “open[ed] their property 

for speech.” Id. YouTube does not perform a public 

function by inviting public discourse on its property. “The 

Constitution by no means requires such an attenuated 

doctrine of dedication of private property to public use.” 

Lloyd Corp., 407 U.S. at 569. Otherwise “every retail and 

service establishment in the country” would be bound by 

constitutional norms. Cent. Hardware Co. v. NLRB, 

407 U.S. 539, 547 (1972) (private parking lots do not 

become state actors just because they are open to the public).

That YouTube is ubiquitous does not alter our public 

function analysis. PragerU argues that the pervasiveness of 

YouTube binds it to the First Amendment because Marsh 

teaches that “[t]he more an owner, for his advantage, opens

up his property for use by the public in general, the more do 

his rights become circumscribed by the ... constitutional 

rights of those who use it.” 326 U.S. at 506. PragerU’s 
12 PRAGER UNIVERSITY V. GOOGLE

reliance on Marsh is not persuasive. In Marsh, the Court 

held that a private entity operating a company town is a state 

actor and must abide by the First Amendment. Id. at 505–

08. But in Lloyd Corp. and Hudgens, the Court 

unequivocally confined Marsh’s holding to the unique and 

rare context of “company town[s]” and other situations 

where the private actor “perform[s] the full spectrum of 

municipal powers.” Lloyd Corp., 407 U.S. at 569; see also 

Hudgens, 424 U.S. at 518–20.

YouTube does not fit the bill. Unlike the company town 

in Marsh, YouTube merely operates a platform for usergenerated video content; it does not “perform[] all the 

necessary municipal functions,” Flagg Bros., 436 U.S. 

at 159, nor does it operate a digital business district that has 

“all the characteristics of any other American town,” Marsh, 

326 U.S. at 502.

YouTube also does not conduct a quintessential public 

function through regulation of speech on a public forum. 

Lee, 276 F.3d at 556 (the “functionally exclusive regulation 

of free speech within ... a public forum[] is a traditional and 

exclusive function of the State”). To characterize YouTube 

as a public forum would be a paradigm shift.4

Shifting gears slightly, PragerU posits that a private 

entity can be converted into a public forum if its property is 

opened up for public discourse.5 This theory finds no 

4 PragerU’s citation to Lee does not solve the state action problem. 

In Lee, the parties conceded that the property, which was owned by the 

municipal government, was a traditional public forum. 276 F.3d at 555–

56. No such concession or government involvement exists here.

5 PragerU appears to conflate the public forum analysis for the 

threshold state action inquiry with the designated public forum analysis 
PRAGER UNIVERSITY V. GOOGLE 13

support in our precedent. As the Supreme Court has 

explained, to create a public forum, the government must 

intentionally open up the property to public discourse. See 

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 

473 U.S. 788, 802 (1985) (“The government does not create 

a public forum by inaction or by permitting limited 

discourse, but only by intentionally opening a nontraditional 

forum for public discourse.”). That YouTube is not owned, 

leased, or otherwise controlled by the government 

undermines PragerU’s public forum theory. PragerU cannot 

avoid the state action question by calling YouTube a public 

forum. Halleck, 139 S.Ct. at 1930 (casting a private property 

as a public forum “ignores the threshold state-action 

question”).

PragerU’s attempt to foist a “public forum” label on 

YouTube by claiming that YouTube declared itself a public 

forum also fails. YouTube’s representation that it is 

committed to freedom of expression, or a single statement 

made by its executive before a congressional committee that 

she considers YouTube to be a “neutral public fora,” cannot 

somehow convert private property into a public forum. 

Whether a property is a public forum is not a matter of 

election by a private entity. We decline to subscribe to 

PragerU’s novel opt-in theory of the First Amendment. See 

Cent. Hardware, 407 U.S. at 547.

Both sides say that the sky will fall if we do not adopt 

their position. PragerU prophesizes living under the tyranny 

for determining the appropriate First Amendment balancing test. See, 

e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (that a 

city-leased theater is a designated public forum determines the level of 

permitted speech regulation by the government). We interpret PragerU’s 

use of the term “designated public forum” to mean “public forum” in the 

context of the state action doctrine.
14 PRAGER UNIVERSITY V. GOOGLE

of big-tech, possessing the power to censor any speech it 

does not like. YouTube and several amicus curiae, on the 

other hand, foretell the undoing of the Internet if online 

speech is regulated. 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. 

Because the state action doctrine precludes constitutional 

scrutiny of YouTube’s content moderation pursuant to its 

Terms of Service and Community Guidelines, we affirm the 

district court’s dismissal of PragerU’s First Amendment 

claim.

II. THE LANHAM ACT FALSE ADVERTISING CLAIM

PragerU’s other federal claim—false advertising under 

the Lanham Act—also fails. To establish a claim under 

15 U.S.C. § 1125(a)(1)(B), PragerU must allege a “false or 

misleading representation of fact” “in commercial 

advertising or promotion” that “misrepresents the nature, 

characteristics, qualities, or geographic origin of his or her 

or another person’s goods, services, or commercial 

activities.” See Southland Sod Farms v. Stover Seed Co., 

108 F.3d 1134, 1139 & n.2 (9th Cir. 1997). Because none 

of the alleged statements are actionable under the Lanham 

Act, we affirm the district court’s dismissal of this claim.

YouTube’s statements concerning its content 

moderation policies do not constitute “commercial 

advertising or promotion” as the Lanham Act requires. 

15 U.S.C. § 1125(a)(1)(B). The statements about Restricted 

Mode were made to explain a user tool, not for a promotional 

purpose to “penetrate the relevant market” of the viewing 

public. Fashion Boutique of Short Hills, Inc. v. Fendi USA, 

Inc., 314 F.3d 48, 57 (2d Cir. 2002); see also Coastal 

Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 
PRAGER UNIVERSITY V. GOOGLE 15

735 (9th Cir. 1999). Not all commercial speech is 

promotional. Fashion Boutique of Short Hills, 314 F.3d 

at 57 (“the language of the [Lanham] Act cannot be stretched 

so broadly as to encompass all commercial speech”). 

PragerU did not allege any facts to overcome the 

commonsense conclusion that representations related to 

Restricted Mode, such as those in the terms of service, 

community guidelines, and contracts are not advertisements 

or a promotional campaign. First Health Grp. Corp. v. BCE 

Emergis Corp., 269 F.3d 800, 804 (7th Cir. 2001) 

(statements in a “contract” are not “commercial advertising 

or promotion”); Interlink Prods. Int’l, Inc. v. Cathy Trading, 

LLC, 2017 WL 931712, at *5 (D.N.J. Mar. 9, 2017) 

(“instruction manuals are not advertisements or 

promotions”).

Nor was the designation of certain PragerU videos for 

Restricted Mode part of an advertising or promotion or a 

misrepresentation as to the videos. The designation and the 

reason for tagging videos to be unavailable in Restricted 

Mode are not made available to the public. See Coastal 

Abstract Serv., Inc., 173 F.3d at 735.

Furthermore, the fact that certain PragerU videos were 

tagged to be unavailable under Restricted Mode does not 

imply any specific representation about those videos. 

Although a false advertising claim may be based on implied 

statements, those statement must be both specific and 

communicated as to “deceive[] a significant portion of the 

recipients.” William H. Morris Co. v. Grp. W, Inc., 66 F.3d 

255, 258 (9th Cir. 1995). The only statement that appears on 

the platform is that the video is “unavailable with Restricted 

Mode enabled.” This notice does not have “a tendency to 

mislead, confuse or deceive” the public about the nature of 
16 PRAGER UNIVERSITY V. GOOGLE

PragerU’s videos. Am. Home Prods. Corp. v. Johnson & 

Johnson, 577 F.2d 160, 165 (2d Cir. 1978).

YouTube’s braggadocio about its commitment to free 

speech constitutes opinions that are not subject to the 

Lanham Act. Lofty but vague statements like “everyone 

deserves to have a voice, and that the world is a better place 

when we listen, share and build community through our 

stories” or that YouTube 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” are classic, non-actionable opinions or puffery. 

See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 

1053 (9th Cir. 2008). Similarly, YouTube’s 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 are impervious to being 

“quantifiable,” and thus are non-actionable “puffery.” Id. 

The district court correctly dismissed the Lanham Act claim.

AFFIRMED.