Megan L. Brown is a Partner with Wiley Rein LLP in Washington, DC, and the WLF Legal Pulse’s Featured Expert Contributor, First Amendment. Boyd Garriott and Jeremy J. Broggi are Associates with the firm.

Last month, the Ninth Circuit released an opinion in Prager University v. YouTube, holding that a plaintiff could not sue YouTube for violating the First Amendment because YouTube is a private entity. (This article does not discuss the Lanham Act holding of the opinion.) The Ninth Circuit joins the vast majority of courts on this issue, but its holding will likely fuel the ongoing debate among scholars and policymakers as to how Internet platforms should be treated under the First Amendment and as speakers more broadly.

As background, YouTube is the world’s largest video content platform.  YouTube’s content is driven by third-party creators that produce videos that are hosted on the platform.  To moderate the vast quantity of third-party video content available to its two billion users, YouTube employs several tactics.  It allows individuals to browse in “Restricted Mode,” which prevents users from accessing “mature content,” such as videos about violence, sexual content, or drugs and alcohol.  It also “demonetizes” videos—i.e., precludes third-party advertisements on videos—that contain inappropriate language, “hateful” or “incendiary” content, and other content YouTube deems insufficiently “advertiser-friendly.”