And no amount of legal briefing is going to transform it into a public forum
If someone names his boat a rose, does the boat become a flower? If the manufacturer of the boat calls it a rose, is the boat a flower? Most people would laugh at the idea of changing something’s character just because that change suits our purpose.
In a recent court filing, though, Prager University tries to do just that. In its ongoing suit against Google and YouTube, the online educational outfit tries to incorporate statements made by Google during a Senate Committee hearing. During those statements, YouTube’s head of Public Policy and Government Relations stated that the platforms believes itself to be a “neutral public forum.”
The phrase “public forum” is a legal term of art. The phrase is intended to engender the picture of a privately-owned town discriminating against a religious minority, as it was discussed at length in a Supreme Court case entitled Marsh v. Alabama.
In the Marsh case, the Supreme Court determined that a privately-owned town treads on the constitutional speech rights of individuals when the town allows some groups to speak but then denies other groups the same opportunity and when that denial appears to be because of the speaker’s topic. Further, for Marsh to apply, the privately-owned town must have “all the attributes of a [public] town” such as “residential buildings, streets, a system of sewers, a sewage disposal plant and a business block on which businesses are situated.”
The Supreme Court confirmed Marsh’s very limited holding years later. In a case entitled Lloyd Corp. v. Tanner, the Court limited “public forums” to include only those circumstances where a private enterprise assumed “all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State…” (emphasis added).
YouTube does not exercise any attributes of a state-created municipality online. It is only a private platform where people can share videos. Facebook and Twitter, for that matter, are private platforms where people can share all sorts of content. No social media platform serves the public in the same way that a town serves the public.
YouTube does itself a disservice when it uses a legal term of art to describe itself. A term that allows plaintiffs like Prager University or politicians like Senator Ted Cruz to score points with the public.
Instead of claiming to be a “neutral public forum,” YouTube probably should have stated that it is a “private platform that seeks to be neutral in its decisions” including the decision to monetize, or demonetize, certain content.
Senator Cruz and Prager University may like to refer to a private platform as a “public forum,” but that does not make YouTube a “public forum.” YouTube may like to refer to itself as a “public forum,” but that does not change its fundamental character of a private platform. The Supreme Court has been, and is, clear on this topic. A public forum occurs only when a private enterprise assumes all the attributes of a state-created municipality.