RFK Jr. Cites 5th Circuit Findings in Amended Free Speech Complaint vs. Google

Kennedy is a consol plaintiff in Missouri V. Biden, after U.S. District Judge Terry Doughty for Western Louisiana in July granted the candidate’s motion to consolidate his “substantially identical” freedom of speech lawsuit with the Missouri and Louisiana AGs’ case against nearly 70 individuals and agencies of the federal government (see 2307250012). Both cases are related to COVID-19 vaccine content-moderation decisions, among other topics. Kennedy’s case against Google involves YouTube’s removal of recent Kennedy videos for violating its policies on COVID-19 vaccine misinformation.

In consolidating the cases, Doughty said in July, “The issue of suppression of free speech by the government by coercing and/or significantly encouraging social media platforms is the same." He noted that both cases involved the exact same defendants and were pending in the same district before the same judge. Commenting on four of the Missouri plaintiffs' objections to the consolidation with Kennedy because of the political spotlight it would shed on the case, Doughty said: “This court does not decide cases based on politics, but based on the United States Constitution."

Kennedy said in the amended complaint, where he cited Missouri v. Biden, that the 5th Circuit considered the same issues as the 9th Circuit in 2002 in Lee v. Katz, in which that court found that “in regulating speech" within a public space, a private party “performs an exclusively and traditionally public function within a public forum.” In considering the same issues, the 5th Circuit focused on “coercion and significant encouragement” in satisfying the “close nexus test.” The 5th Circuit concluded in Biden “that the executive branch officials’ actions satisfied both the coercion and significant encouragement tests,” Kennedy said.

During 2021, government officials “entangled themselves” in social media platforms’ decision-making processes, “namely their moderation policies,” Kennedy said, citing the 5th Circuit. Government officials “had consistent and consequential interaction with the platforms and constantly monitored their moderation activities,” it said. They did so "not informally or indirectly," but by “repeatedly communicat[ing] their concerns, thoughts, and desires to the platforms."

“Critically,” Kennedy said, the 5th Circuit noted that the platforms “responded with cooperation -- they invited the officials to meetings, roundups, and policy discussions. And, more importantly, they complied with the officials’ requests, including making changes to their policies.”

Kennedy alleges the White House and other government officials “repeatedly worked with the big tech companies,” to censor him in 2021 and 2022, with the White House press secretary calling on the tech platforms to ban him completely, while YouTube was “working behind the scenes with [Cybersecurity and Infrastructure Security Agency] and other government officials to do just that.” Kennedy contends that “White House pressure” increased “after Kennedy challenged Biden for the nomination.”

As of April 22, 2021, Google didn’t have "a vaccine misinformation policy for YouTube,” said the amended complaint, and “it had no intention of developing one, either.” Google began developing the policy in response to “the White House’s demands for it,” said the amended complaint, which added exhibits showing redacted 2021 emails between Google employees and staffers from the Centers for Disease Control and Prevention and the Department of Health and Human Services referencing Zoom meetings. In one, Eric Waldo, then head of engagement for the Office of the U.S. Surgeon General, notes Surgeon General Vivek Murthy’s interest in “how to help stop the spread of health misinformation as we continue to tackle COVID19 and beyond."

The complaint noted that on July 16, 2021, Biden said in a speech that "the only pandemic we have is among the unvaccinated,” after which government officials began referring to COVID-19 as a “pandemic of the unvaccinated." Biden said technology companies like Google were “killing people” by not removing vaccine-critical speech from their platforms, Kennedy said. Around that time, Murthy issued an advisory calling on tech companies to aggressively remove criticism of the government’s pro-vaccine message from their platforms.

Biden targeted what he called the “disinformation dozen” who were giving misinformation about vaccines, with Kennedy as one of the most prominent members of that group, said the complaint. Those comments “revealed a plan to punish tech companies like Google if they did not go along with the Biden Administration’s censorship goals,” Kennedy said, saying executive branch officials threatened to “push to eliminate the companies’ section 230 immunity and bring more enforcement actions against them.”

As a result, Google boosted its efforts to combat harmful COVID-19 misinformation policy on YouTube, said Kennedy. “That ‘new policy’ was the vaccine misinformation policy that Google has repeatedly used to censor [Kennedy’s] speech about public health matters,” said the complaint.

Kennedy changed the second claim in the complaint, replacing a claim for declaratory relief under 28 U.S.C Section 2201 to declaratory relief under Article I, Section 2 of the California Constitution, which states: ““Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.”