Robert F. Kennedy Jr. Is Breaking Internet Law Faster Than I Can Blog It

September 9, 2024 · by · in Content Regulation

Having built his professional reputation as a plaintiff (initially, to protect the environment), RFK Jr. is sticking with what he knows best–LAWSUITS. He’s suing an ever-expanding constellation of players to force their publication of his anti-vax views. He’s failing decisively except in MAGA courts–and at such a rapid clip, that I can’t keep up with his track record of futility.

This blog post rounds up four rulings issued in the past month involving RFK Jr.’s legal assault on Internet Law. This post is 4,700 words long, so grab some caffeine before diving in.

Children’s Health Defense v. Meta Platforms Inc., 2024 WL 3734422 (9th Cir. Aug. 9, 2024).

[As you may recall, the lead plaintiff counsel is Jed Rubenfeld of Yale Law School. I’m sure his failed courtroom advocacy in RFK Jr.’s cases will help rehabilitate his professional reputation after he was suspended from law professoring for troubling student interactions.]

This lawsuit relates to Facebook’s efforts to combat vaccine misinformation, of which Children’s Health Defense (CHD)–RFK Jr.’s vanity project–was a leading producer. Facebook deployed a wide range of content moderation remedies against CHD’s content and accounts.

The majority starts by extolling the importance of not treating private actors like state actors:

If the First Amendment were applied to private actors, it would mean, for example, that a newspaper would be unable to choose to print the work of only those writers whose views were consistent with its editorial positions, and it could instead be forced by the federal courts to open itself to all writers on a nondiscriminatory basis.

The majority then says plainly: “To begin by stating the obvious, Meta, the owner of
Facebook, is a private corporation, not a government agency.” This is OBVIOUS and not a close call. CHD tries various arguments to overcome this OBVIOUS fact:

  • “CHD does not allege that any specific actions Meta took on its platforms were traceable to those generalized federal concerns about vaccine misinformation.” Cite to O’Handley.
  • “CHD points to various statements from Meta and government officials, but they suffer from a critical lack of specificity….Without plausible allegations of an agreement to take specific action, we cannot say that Meta’s conduct is fairly attributable to the government.”
  • “Meta and the government have regularly disagreed about what policies to implement and how to enforce them…That the government submitted requests for removal of specific content through a “portal” Meta created to facilitate such communication does not give rise to a plausible inference of joint action….It does not become an agent of the government just because it decides that the CDC sometimes has a point.” [I have no comment on Zuckerberg’s craven letter to Rep. Jordan.] Cite to O’Handley again.
  • “Meta has a First Amendment right to use its platform to promote views it finds congenial and to refrain from promoting views it finds distasteful.” Cite to Moody. “Meta evidently believes that vaccines are safe and effective and that their use should be encouraged. It does not lose the right to promote those views simply because they happen to be shared by the government.”
  • “there is reason to doubt that a purely private actor like Meta, which was the victim of the alleged coercion, would be the appropriate defendant, rather than the government officials responsible for the coercion.” If the government is censoring CHD, that also hurts Facebook. The appropriate recourse is to take it up with the government (which RFK Jr. has also done–discussed below).
  • “CHD’s theory of coercion turns on statements made by lawmakers threatening to hold social media companies “accountable” for failing to police “misinformation” on their platforms. Those statements do not meet the standard we have articulated for finding state action.” The government’s censorial threats are repulsive, but they aren’t close to coercion. Instead, all partisans “work the refs” all the time, including Pres. Trump’s EO purporting to repeal Section 230 as punishment for Twitter fact-checking him. Whatever sins the Biden administration committed, it’s nowhere as flat-out censorial as that EO–the EO was a binding legal pronouncement (even if obviously unconstitutional), rather than mere talk/jawboning. The fact that the media has focused solely on the Biden administration’s jawboning, without connecting the dots to the Trump administration’s coercion, shows how Republicans have won the narrative battle–and the media has failed to properly hold them accountable for that.
  • “CHD has not alleged facts that allow us to infer that the government coerced Meta into implementing a specific policy….All CHD has pleaded is that Meta was aware of a generalized federal concern with misinformation on social media platforms and that Meta took steps to address that concern. Meta implemented its policy at least in part to stave off lawmakers’ efforts to regulate, it was allowed to do so without turning itself into an arm of the federal government.”

CHD also invokes Section 230 as a weapon to undermine the constitution. During the relevant time period, government officials routinely threatened to amend or repeal Section 230 because services allegedly weren’t doing enough to counter vaccine misinformation. (Reminder: Trump didn’t just threaten Section 230–he literally issued an EO purporting to repeal it). The majority says:

The immunity from liability conferred by section 230 is undoubtedly a significant benefit to companies like Meta that operate social media platforms. It might even be the case that such platforms could not operate at their present scale without section 230. But many companies rely, in one way or another, on a favorable regulatory environment or the goodwill of the government. If that were enough for state action, every large government contractor would be a state actor. But that is not the law.

I agree with the majority, but government officials should also stop treating Section 230 like a political football. It’s not savvy policymaking to treat Section 230 as a faucet that can be turned off to magically fix society’s problems. Instead, such ploys are an F-U to constituents who critically depend on Section 230 to achieve their life goals.

Plus (and I don’t understand how everyone forgets this): Facebook has repeatedly urged Congress to reform Section 230. For example, Facebook spent millions to run ads against Section 230 and hype an anti-23o policy website. Also, Facebook flipped on the industry to affirmatively support FOSTA, Congress’ most recent carveback of Section 230. Why would Facebook take anti-Section 230 positions so seemingly contrary to their self-interest? Because Facebook would be fine if Congress raises the industry’s barriers and entrenches its competitive position. This forges a cynical alliance with many Congressmembers who would be thrilled to carry Facebook’s water and help its anti-competition agenda. So anyone who thinks Facebook is quivering in fear at the prospect of Section 230 reform is mockably naïve and ill-informed. [This will be highly relevant to the ill-informed dissent in this case].

Still trying to gum up Section 230 as well as Conlaw, CHD invoked the Skinner case–a railroad case. 🙄 The majority’s response is withering: “section 230 is fundamentally unlike the regulations in Skinner. The statute is entirely passive—a provider can leave content on its platform without worrying that the speech of the poster will be imputed to it, or it may choose to restrict content it considers “objectionable” without the threat of lawsuits.” The court continues:

Section 230 is just as protective of a provider’s right to maintain “objectionable” content on its platform as it is of a provider’s right to delete such content. The “legislative grace” providers enjoy under Section 230 merely affords them the ability to choose whether to suppress certain third-party speech without risking costly litigation. By giving companies like Meta that freedom, the government has hardly expressed a “strong preference” for the removal of speech critical of vaccines.

It would be exceptionally odd to say that the government, through section 230, has expressed any preference at all as to the removal of anti-vaccine speech, because the statute was enacted years before the government was concerned with speech related to vaccines, and the statute makes no reference to that kind of speech…

That Section 230 operates in the background to immunize Meta if it chooses to suppress vaccine misinformation—whether because it shares the government’s health concerns or for independent commercial reasons—does not transform Meta’s choice into state action.

If we were to accept CHD’s argument, it is difficult to see why would-be purveyors of pornography would not be able to assert a First Amendment challenge on the theory that, viewed in light of section 230, statements from lawmakers urging internet providers to restrict sexually explicit material have somehow made Meta a state actor when it excludes constitutionally protected pornography from Facebook. So far as we are aware, no court has ever accepted such a theory.

(Note: the majority says that Section 230 equally protects leave-up and removal decisions, but that’s true only if removal decisions are governed by Section 230(c)(1) and not the good-faith prerequisite in Section 230(c)(2)(A)).

This pretty much sums up the majority’s position: “wherever the line may be, CHD is far from it.” #Fail.

The majority closes its state action discussion with a celebration of publishers’ editorial freedom:

Our decision should not be taken as an endorsement of Meta’s policies about what content to restrict on Facebook. It is for the owners of social media platforms, not for us, to decide what, if any, limits should apply to speech on those platforms. That does not mean that such decisions are wholly unchecked, only that the necessary checks come from competition in the market—including, as we have seen, in the market for corporate control….it is not up to the courts to supervise social media platforms through the blunt instrument of taking First Amendment doctrines developed for the government and applying them to private companies

💯

The majority also says Facebook’s fact-checks aren’t commercial advertising for Lanham Act purposes. “Meta’s commentary on CHD’s posts did not represent an effort to advertise or promote anything, and it did not propose any commercial transaction, even indirectly.” Cites to Ariix v. NutriSearch.

__

Judge Collins, a TAFS judge, writes a lengthy and ugh dissent (it’s longer than the majority opinion). Fixated on Section 230, he takes the standard tack for TAFS judges of musing about and rehashing–at great length–the publisher/distributor distinction, with some bonus “conduit” references tossed in (8x). Must we do all of this YET AGAIN???

The statutory analysis prompted his first subconclusion: “§ 230 confers a statutory immunity without which Meta could not practicably operate gigantic platforms such as Facebook and Instagram.”

In this discussion, Judge Collins only credits Section 230, and assigns no credit to the First Amendment backstop, for Facebook’s editorial discretion. For example, he says “whenever Meta selectively censors the speech of third parties on its massive platforms, it is quite literally exercising a government-conferred special power over the speech of millions of others….Meta’s construction of massive and widely available platforms for the hosting of the speech of enormous numbers of third parties necessarily means that those platforms exist and operate only by virtue of the immunity conferred by § 230.” In focusing solely on Section 230 to the exclusion of the First Amendment, Judge Collins misses a fundamental point that the First Amendment may provide overlapping substantive rights as Section 230, although it may not provide equivalent procedural benefits. This makes his core subconclusion a strawman argument.

After many pages musing about Skinner, he turns to his second subconclusion, that “all of these actions took place against a backdrop of continuous legislative threats, at multiple levels, to limit or abolish the § 230 immunity upon which Meta’s very ability to operate its mega-platforms critically depends.”

As I discussed above, at the exact same time of the Biden administration and Congressional jawboning at issue in this case, Facebook was affirmatively taking anti-230 policy positions and spending millions to advertise that position, which fatally undermines the judge’s assumptions supporting his second subconclusion.

(Also, what’s the deal with the “mega-platform” characterization, a phrase he uses 9x? He also uses synonyms like massive (8x) and gigantic (4x), but why? Do First Amendment principles somehow apply differently between mega-platforms and non-mega-platforms?)

Judge Collins makes it clear he has no respect for the Supreme Court’s conclusions in Moody. For example, he says:

I do not think we should simply assume that it has exactly the same constitutional rights with respect to third-party speech on its platforms as a newspaper publisher, a book distributor, or a parade organizer. Moody did not address the precise scope of Meta’s First Amendment rights over its platform.

Later, he says:

Meta would be better positioned to argue for the full constitutional freedom of a traditional publisher—including the freedom to agree to, and implement, the Government’s censorship preferences—if it operated its website in all respects like a traditional publisher by individually reviewing, selecting, and limiting exactly what third-party speech it will publish. In such a circumstance, it would happen to have § 230 immunity, but (as with a newspaper) that immunity would not be essential to its very existence or ability to operate its platforms.

His hot takes contradict Moody. For example, the Moody majority said “Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world.” The Moody majority also REPEATEDLY makes it clear that social media services like Facebook receive constitutional protection for their editorial choices even if they aren’t “individually reviewing, selecting, and limiting exactly what third-party speech it will publish.” Like most TAFS judges, it appears Judge Collins plans to pick-and-choose only the parts of binding Supreme Court precedent that he likes.

Judge Collins concludes with his third subconclusion:

Although Meta’s operational reliance on § 230’s immunity is not alone enough to render Meta a state actor, that factor contributes positively towards a finding of state action when combined with other considerations. In particular, with this critical factor in place, if Meta then affirmatively engages with the Government as to how to exercise its government-granted authority in order to widely suppress particular subjects or speakers on its mega-platforms, that additional element suffices to cross over the state-action line and to implicate the First Amendment’s protections with respect to the targeted speakers.

I’m glad Judge Collins wrote a dissent and not the majority opinion, but I also am highly confident that his views would not receive 5 votes at the Supreme Court–especially given how he chose to disregard Moody.

Kennedy v. Google LLC, 2024 WL 3934326 (9th Cir. Aug. 26, 2024)

YouTube removed Kennedy’s videos. He claimed YouTube was a state actor. Citing Prager, the court says a “private company is not ordinarily subject to the First Amendment’s constraints.” The court’s analysis:

Google asserts that it is a private entity with its own First Amendment rights and that it removed Kennedy’s videos on its own volition pursuant to its own misinformation policy and not at the behest of the federal government. [cite to Moody] Kennedy has not rebutted Google’s claim that it exercised its independent editorial choice in removing his videos. Nor has Kennedy identified any specific communications from a federal official to Google concerning the removed Kennedy videos, or identified any threatening or coercive communication, veiled or otherwise, from a  federal official to Google concerning Kennedy. [cite to Murthy]

Case dismissed.

For those of you keeping score, online jawboning plaintiffs are 0-for-8 in the Ninth Circuit: O’Handley, Huber, Doe v. Google, Kennedy v. Warren, Rogalinski, Hart, CHD, Kennedy v. Google. By losing three of those eight cases, I guess Kennedy can add to his resume that he played a major role in defining 9th Circuit jawboning law? 🏆 and 🙏

Kennedy v. Meta Platforms, Inc., 2024 WL 4031486 (N.D. Cal. Sept. 3, 2024). The CourtListener page. Rubenfeld is also involved in this case.

In the first case in this post, CHD sued Facebook. In this case, Kennedy is suing Facebook individually (along with some of his allies). This time he’s complaining about Facebook’s handling of content related to his failed presidential campaign, especially the so-called “documentary” film “Who is Bobby Kennedy?” The court denies his request for a preliminary injunction.

State Action

Much of the state action discussion simply points back to the Children’s Health Defense decision I discussed above, e.g., “At bottom, the plaintiffs fail to point to any governmental “statute or policy” as the source of their harm.”

Some of the opinion points back to Murthy:

The Murthy opinion makes my decision here straightforward. Murthy rejected Missouri’s factual findings and specifically explained that the Missouri evidence did not show that the federal government caused the content moderation decisions. Yet here, the plaintiffs rely on Missouri as their evidence that a state rule caused the defendants’ alleged censorship actions.

The 2020-21 facts at issue in Murthy are also stale: “Even if the plaintiffs proved that Meta and the government acted jointly, or colluded, or that Meta was coerced by the government to remove and flag COVID-19 misinformation three years ago, that says nothing about Meta’s relationship and communications with the government in 2024.” (Compare Justice Alito’s minority position in Murthy that government threats have no expiration date).

The court summarizes that the state action claim “is far from likely to succeed on the merits.”

In addition to the constitutional claims, the plaintiffs invoked two statutory claims. Those also go nowhere.

Voting Rights Act

“Though I do not doubt that it is theoretically possible for someone to show they were intimidated, threatened, or coerced by a social media site for urging people not to vote…the plaintiffs have not shown that is what happened here.”

For example, the plaintiffs claim that automated content moderation (in this case, an anti-phishing protocol) is voter intimidation, especially when the humans quickly corrected it. The court responds: “if the plaintiffs were aware that a tech issue caused the removal of the videos, with that “context” it would probably not be reasonable for them to believe the video links were removed in an effort to coerce or intimidate them.” For now, the court says “I cannot say that this argument or evidence shows serious questions.” #Unserious.

The court summarizes: “a reasonable recipient of Meta’s communications would be unlikely to view them as even related to voting, let alone as coercing, threatening, or intimidating the recipient with respect to urging others to vote.”

(I’m skipping the Ku Klux Klan Act of 1870 analysis because it’s way outside of my Internet Law swimlane).

Section 230

The court doesn’t definitively resolve Section 230’s application to the statutory claims, but it does offer this guidance:

It seems unlikely that the plaintiffs will be able to overcome the CDA immunity defense asserted by the defendants. Decisions by the defendants to not publish the plaintiffs’ desired content is probably covered by the CDA. The plaintiffs seem to assert that the CDA does not apply because they seek to hold the defendants liable for their own speech—their own threats to ban, block, or censor users—not for the speech of others. If the plaintiffs could show that the defendants made affirmative “threats” to the plaintiffs, the plaintiffs may be correct that the statements are not covered by the CDA. But they have not shown threats, as discussed above. And, this theory of injury seems to contradict other arguments made by the plaintiffs, including that they were injured by the defendants’ refusal to post pro-Kennedy content created by the plaintiffs and third parties.

Injunction

Citing Moody, the court recognizes that it cannot order a must-carry obligation:

Meta’s content moderation decisions to “deprioritize[ ]” political content are protected by the First Amendment. That is true even if it allows supportive speech for all other candidates but Kennedy—“that kind of focused editorial choice packs a peculiarly powerful expressive punch.” If I issue an order compelling the defendants here to publish pro-Kennedy content that they have allegedly declined to publish on their platforms, that order will infringe on the defendants’ First Amendment rights.

Kennedy v. Biden, 2024 WL 3879510 (W.D. La. Aug. 20, 2024)

Judge Doughty issued the initial ruling that the Supreme Court mocked as a hack job in Murthy v. Missouri. Care to guess what he does here?

Doughty describes the conversations between the Biden administration, the social media services, and other watchdog groups. He then summarizes:

There is not much dispute that both Kennedy and CHD were specifically targeted by the White House, the Office of Surgeon General, and CISA, and the content of Kennedy and CHD were suppressed. Therefore, Kennedy must now show a substantial risk that in the near future, at least one platform will restrict the speech of Kennedy in response to the actions of one Government Defendant.

Note that Doughty can’t show that any of the past targeting *caused* the content “suppression,” rather than the social media services making the editorial decision informed by all considerations (including the government’s input). The purportedly forward-looking nature of Doughty’s inquiry basically moots all of the past evidence, leaving this opinion without any structural integrity.

An example of the trash logic Doughty wields:

[After summarizing a 2020 report, the “Long Fuse”:] The Court acknowledges that the Long Fuse report did not mention Kennedy or CHD; however, it cites to this evidence because it is relevant to the issue here. It was clear that then presidential-hopeful Donald Trump was censored by the actions of one of the Government Defendants. It is not out of the realm of possibility, then, that Kennedy, who is running for president on the 2024 ticket, may suffer the same fate.

Wait, what? Kennedy wasn’t mentioned at all in the report, so it’s not proof of anything related to him. There was no government censorship of presidential-hopeful Donald Trump (the report came out in 2021, and any crackdowns on Trump were the services’ editorial decisions). Also, services would very likely treat the major party candidate (Trump) differently than minor party/independent candidates. And what’s with the legal standard “not out of the realm of possibility”? I’m pretty sure I didn’t learn that legal standard as the prerequisite for categorically enjoining the federal government’s actions in law school. You see how Doughty is using rhetorical misdirection to turn 0+0=1. Mike Masnick has further details about the dubiousness of the evidence Doughty cites.

Now that Kennedy is out of the presidential race, do you think Doughty will suddenly reassess the harms and find for the defense? 🤣

The rest of the “analysis” is Doughty conclusorily declaring that Kennedy provided evidence that satisfies the various legal standards, without actually showing how the evidence connects to the standard. This is the kind of fact-unspecific “analysis” that I see on my C-level student exams.

Having established that Kennedy and CHD have standing, do you have any doubts that Doughty will issue another broad and overreaching injunction against the federal government trying to protect the public’s health? 🙄 Or that the Fifth Circuit will find some way to affirm it, at least in part?

(Doughty has lifetime tenure and is 65, so we likely have another 20ish years of high-quality judging like this. One of the legacies of the Trump administration).

Selected Jawboning Posts

Selected Posts About State Action Claims