This article was originally published by The Defender — Children’s Health Defense’s News & Views Website.
(Children’s Health Defense) — The 9th Circuit U.S. Court of Appeals on Friday ruled against Children’s Health Defense (CHD) in its First Amendment free speech lawsuit against Facebook’s parent company, Meta, and its founder and CEO, Mark Zuckerberg.
The suit also named “fact-checking” firms Science Feedback, and the Poynter Institute and its PolitiFact website.
CHD’s suit accused the Centers for Disease Control and Prevention (CDC) and other federal agencies of “privatizing” the First Amendment by teaming up with Facebook to censor speech which, “under the Bill of Rights, the Government cannot censor.”
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According to the lawsuit, filed in August 2020 – and amended in December 2020 – the CDC and the World Health Organization “collaborated closely with Facebook to suppress vaccine safety speech by using a ‘warning label’ and other similar types of notices which, while purporting to flag misinformation, in reality censor valid and truthful speech, including content posted by plaintiff on its Facebook page regarding vaccines.”
This collaboration amounted to “state action” and was in violation of the First Amendment, CHD said.
However, the 9th Circuit ruled:
CHD failed to meet the first requirement for state action because the source of CHD’s alleged harm was Meta’s own policy of censoring, not any provision of federal law. The evidence suggested that Meta had independent incentives to moderate content and exercised its own judgment in so doing.
The court also ruled that CHD failed to allege any facts that would suggest an agreement between the government and Meta that “required Meta to take a particular action in response to misinformation about vaccines or that the government coerced Meta into implementing a specific policy.”
In a partially dissenting opinion, Circuit Judge Daniel P. Collins wrote that “Meta’s interactions with the Government with respect to the suppression of specific categories of vaccine-related speech, and in particular the speech of CHD and its founder and chairman, Robert F. Kennedy, Jr., sufficed to implicate the First Amendment.”
CHD CEO Mary Holland told The Defender:
Children’s Health Defense is extremely disappointed by the 9th Circuit’s decision. If we cannot stop the government’s joint action with Big Tech to censor unwanted information, our First Amendment is a pyrrhic victory – it means almost nothing in our real world of social media.
Holland said she was “pleased” that the decision was not unanimous and that the plaintiffs are “considering our legal options.”
Those options include petitioning the U.S. Supreme Court to hear the case. Lawyers for CHD said they needed more time to review Friday’s ruling before they could make that determination.
CHD General Counsel Kim Mack Rosenberg said:
The First Amendment at this point seems hollow. Often, the only speech ‘protected’ and heard is that which reinforces the prevailing narrative.
CHD believes that it more than amply demonstrated the government’s role here implicating the First Amendment and demonstrating state action. That the panel did not unanimously recognize what CHD’s pleadings I believe clearly demonstrated is disappointing.
Case languished for nearly four years
The lawsuit languished in federal court for nearly four years. In June 2021, the U.S. District Court for the Northern District of California granted Facebook’s motion to dismiss, finding the complaint failed to state legal claims.
CHD appealed to the 9th Circuit, resulting in oral arguments before the court in May 2022.
Kennedy, CHD’s then-chairman and chief litigation counsel (currently chairman on leave), argued then that U.S. government threats to strip Facebook of Section 230 legal immunity if it did not remove vaccine “misinformation” from the platform was meant to “annihilate” the company if it did not comply.
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Kennedy also argued that when the Speaker of the House, the White House, and chairs of congressional committees exert coordinated pressure to coerce Facebook to censor COVID-19 “misinformation” – “or else” – the threat is existential.
Judge Collins later summarized this government gambit neatly: “Nice immunity you have there, Facebook. It’d be a shame if anything happened to that.”
In response, Facebook attorney Sonal Mehta argued Facebook’s censorship was the result of its independent judgment. She acknowledged that while Facebook may have a “common interest” with the government to suppress “misinformation” and even to coordinate with the government, CHD had not alleged enough to suggest “joint action” between the two.
Meta claimed Facebook has “neutral immunity” to publish or to refrain from publishing anything it wishes under Section 230, indicating there was no state action.
Following oral arguments in May 2022, CHD submitted a series of motions, but no further action was taken by the court until today’s ruling.
CHD First Amendment lawsuit against Biden administration still in progress
Many of the motions CHD submitted in its lawsuit against Meta pertained to evidence obtained as part of the discovery process in Missouri et al. v. Biden et al., now known as Murthy et al. v. Biden et al. – alleging similar First Amendment violations on the part of the U.S. government and collusion with social media platforms to censor content.
The U.S. Supreme Court struck down injunctions against the Biden administration in that case, sending the lawsuit back to the appeals court.
CHD and Kennedy in March 2023 made similar allegations against the Biden administration in a class action lawsuit, Kennedy et al. v. Biden et al., filed on behalf of all American news consumers.
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A federal judge in July 2023 consolidated the two lawsuits, which allowed them to have shared processes for discovery.
In February, the U.S. District Court for the Western District of Louisiana granted Kennedy and CHD a preliminary injunction prohibiting key Biden administration officials and agencies from coercing or significantly encouraging social media platforms to suppress or censor online content.
Last month, the Biden administration filed an emergency motion with the 5th Circuit U.S. Court of Appeals to strike down the injunction. A ruling is pending.
This article was originally published by The Defender – Children’s Health Defense’s News & Views Website under Creative Commons license CC BY-NC-ND 4.0. Please consider subscribing to The Defender or donating to Children’s Health Defense.