A California federal judge on Wednesday dismissed a suit alleging that YouTube and its parent company Google discriminate against LGBTQ content creators, holding that a recent Ninth Circuit ruling precludes the plaintiffs’ claims that the companies unconstitutionally restrict speech.

U.S. Magistrate Judge Virginia DeMarchi held that the plaintiffs’ claims under the First Amendment can’t survive after Prager University v. Google LLC (9th Cir. 2020) 951 F.3d, 991.

In that case, the Ninth Circuit held that despite YouTube’s role as a public-facing platform, it’s still a private forum and thus not subject to judicial scrutiny under the First Amendment. Judge Margaret McKeown wrote for the three-judge panel that “YouTube is a private entity” and “other courts have uniformly concluded that digital internet platforms that open their property to user-generated content do not become state actors.”

In Wednesday’s order, DeMarchi wrote that “to the extent plaintiffs suggest that defendants have effectively declared themselves the equivalent of ‘state actors’ and must be treated as such for purposes of the First Amendment, plaintiffs cite no authority for such a radical proposition.”

The plaintiffs in the case included the San Francisco LGBTQ media company GlitterBombTV and the singing and acting duo BriaAndChrissy, who perform original songs and comedy sketches promoting awareness of LGBTQ rights. They claimed YouTube unlawfully discriminated against them when it limited access to some of their videos by placing them in “restricted mode” and also prevented ads from running on certain videos, among other alleged discriminatory actions.

DeMarchi held that these claims are “expressly foreclosed” by the Ninth Circuit’s decision in Prager. The judge also rejected the plaintiffs’ argument that Section 230 of the federal Communications Decency Act (47 U.S.C. § 230) amounts to government endorsement of the defendants’ alleged discrimination. Although a private entity “may be considered a state actor when the government compels the private entity to take a particular action,” DeMarchi held, “plaintiffs fail to plead any such compulsion.”

“At most, Section 230 provides protection from civil liability for interactive computer service providers who elect to host information provided by another content provider, or who in good faith act to restrict materials that the provider or user considers ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ regardless of whether that material is constitutionally protected,” DeMarchi wrote.

The judge also dismissed the plaintiffs’ claims under the Lanham Act, California’s Unruh Civil Rights Act, and the state’s unfair competition law, but she granted leave to amend those claims.

Counsel for the parties could not be immediately reached for comment.

The case is Divino Group v. Google, case number 19-cv-04749, in the U.S. District Court for the Northern District of California.

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