More Of RFK Jr.’s ‘Don’t Moderate Me, Bro’ Cases Are Laughed Out Of Court
In the last month, I wrote about two of Robert F. Kennedy Jr.'s bullshit crazy lawsuits over him being very, very mad that social media companies keep moderating or limiting the spread of his dangerous bullshit anti-vax nonsense. In one, the Ninth Circuit had to explain (not for the first time) to RFK and his disgraced Yale Law professor lawyer, Jed Rubenfeld, that Meta fact checking RFK Jr. does not violate the First Amendment, and that Section 230 does not turn every internet company into a state actor.
In the other case, one of the MAGA world's favorite judges ignored both the facts and the scolding he just got from the Supreme Court to insist that the Biden administration has been trying to censor RFK Jr., a thing that has not actually happened.
But Professor Eric Goldman reminds me that there were two other cases involving RFK Jr. and his anger at being moderated that had developments that I hadn't covered. And both of them were, thankfully, not in courtrooms of partisan judges who live in fantasylands.
First, we had a case in which RFK Jr. sued Meta again. I had mentioned this case when it was filed. The Ninth Circuit one mentioned above was also against Meta, but RFK Jr. decided to try yet again. In this case, he also sued them claiming that efforts to restrict a documentary about him by Meta violated his First Amendment rights.
If you don't recall, Meta very temporarily blocked the ability to share the documentary, which they chalked up to a glitch. They fixed it very quickly. But RFK Jr. insisted it was a deliberate attempt to silence him, citing Meta's AI chatbot as giving them the smoking gun (yes, they really did this, even the chatbot is just a stochastic parrot spewing whatever it thinks will answer a question).
What I had missed was that district court Judge William Orrick, who is not known for suffering fools lightly, has rejected RFK Jr.'s demands for a preliminary injunction. Judge Orrick is, shall we say, less than impressed by RFK Jr. returning to the well for another attempt at this specious argument, citing the very Ninth Circuit case that RFK Jr. just lost in his other case against Meta.
The plaintiffs assert that they are likely to succeed on the merits of their First Amendment claim, which is that Meta violated their rights to free speech by censoring their posts and accounts on Meta's platforms. But the First Amendment prohibits only governmental abridgment of speech' and does not prohibit private abridgment of speech.'" Children's Health Def. v. Meta Platforms, Inc., -F. 4th-, No. 21-16210, 2024 WL 3734422, at *4 (9th Cir. Aug. 9, 2024) (first quoting Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019); and then citing Prager Univ. v. Google LLC, 951 F.3d 991, 996 (9th Cir. 2020)). Because there is no apparent state action, this claim is unlikely to succeed.
RFK Jr. twists himself into a pretzel shape to try to claim that Meta is magically a state actor, but the court has to remind him that these arguments are quite stupid.
The Ninth Circuit recently has twice affirmed dismissal of claims filed by plaintiffs alleging that social media platforms violated the plaintiffs' First Amendment rights by flagging, removing, or otherwise censoring" the plaintiffs' content shared on those platforms. See Children's Health, 2024 WL 3734422 at *2-4; O'Handley, 62 F.4th at 1153-55. In both cases, the Ninth Circuit held that the plaintiffs' claims failed at the first step of the state action framework because of the simple fact" that the defendants acted in accordance with [their] own content-moderation policy," not with any government policy.....
The only difference between those cases and this one is that here, the plaintiffs seem to allege that the specific" harmful conduct is Meta's censorship itself, rather than its policy of censoring. Based on the documents submitted and allegations made, that is a distinction without a difference.
RFK Jr. tried to argue that the ruling by Judge Doughty in Louisiana supports his position, but Judge Orrick wasn't born yesterday and that he can actually read what the Supreme Court wrote in the Murthy decision rejecting these kinds of arguments.
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. Even if I accepted the vacated district court order as evidence here-which I do not-the Supreme Court has plainly explained why it does not support the plaintiffs' argument.
Even though he notes that he doesn't even need to go down this road, Judge Orrick also explains why the whole state actor" argument is nonsense as well:
The plaintiffs' theory is that Meta and the government colluded or acted jointly, or the government coerced Meta, to remove content related to Kennedy's 2024 presidential campaign from Meta's platforms. The problem with that theory is again the lack of evidence. The Missouri and Kennedy findings were rejected by the Supreme Court, as explained above. And they-and the interim report-suggest at most a relationship or communications between Meta and the government about removal of COVID-19 misinformation in 2020 and 2021. 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. Nor does it suggest that Meta and the government worked together to remove pro-Kennedy content from Meta's platforms.
Because of this, the plaintiffs fail to show likelihood of success on the merits-or serious questions going to the merits-for any of the three possible state action prongs. They do not provide evidence or allegations of a specific[]" agreement between Meta and the government to specifically accomplish the goal of removing Kennedy content from Meta platforms. See Children's Health, 2024 WL 3734422, at 5 (describing joint action test and collecting cases). Nor do they show that the government exercised coercive power or significant encouragement" for Meta to remove Kennedy-related content in 2024. Id. at 9-10 (describing coercion test and finding that allegations about Congressmembers' public criticism of COVID-19 misinformation on social media sites was insufficient to show government coerced platforms to remove it). And for similar reasons, the plaintiffs do not establish a sufficiently close nexus" between the government and the removal of Kennedy-related content from Meta's platforms. Id. at *5. Their First Amendment claim accordingly fails at step two of the state action inquiry. It is far from likely to succeed on the merits.
RFK Jr. also made a Voting Rights Act claim, that removing the documentary about him somehow interfered with people's rights to vote for him. But the court notes that this argument is doomed by the fact that Meta noted that the blocking of links was an accident, which happens all the time:
The defendants point to compelling evidence that the video links were incorrectly automatically flagged as a phishing attack, a not uncommon" response by its automated software to newly created links with high traffic flow. Oppo. 5-6 (citing Mehta Decl. Ex. A 7). The defendants' evidence shows that once the defendants were alerted to the problem, through channels set up specifically for that purpose, the links were restored, and the video was made (and is currently still) available on its platform. Mehta Decl. Ex. A. 4-8, Exs. M-Q. Though the plaintiffs say the removal of the video was an effort to coerce them to not urge people to vote for Kennedy, the defendants' competing evidence shows that it was a technological glitch and that the plaintiffs were aware of this glitch because they reported the problem in the first place. And 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.
The court is also not impressed by the argument that other people (not parties to the case) had accounts removed or limited for sharing support for RFK Jr. As the judge makes clear, RFK Jr. doesn't get to sue someone over a claim that they intimidated someone else (for which there isn't any actual evidence anyway).
Third, the plaintiffs submit evidence that other peoples' accounts were censored, removed, or threatened with removal when they posted any sort of support for Kennedy and his candidacy. See, e.g., Repl. 1:13-24; [Dkt No. 29-1] Exs. A, B. The defendants fail to respond to these allegations in their opposition, but the reason for this failure seems obvious. Section 11(b) provides a private right of action for Person A where Person B has intimidated, threatened, or coerced Person A for urging or aiding any person to vote." 52 U.S.C.A. 10307(b). It does not on its face, or in any case law I found or the parties cite, provide a private right of action for Person C to sue Person B for intimidating, threatening, or coercing Person A for urging or aiding any person to vote." Id. Using that example, the three plaintiffs would be Person C." Their evidence very well might suggest that Meta is censoring other users' pro-Kennedy content. But those users are not plaintiffs in this case and are not before me now.
Importantly, the plaintiffs had plenty of time and opportunity to add any of those affected users as new plaintiffs in this case, as they added Reed Kraus between filing the initial complaint and filing the AC and current motion. But they did not do so. Nor do they allege or argue that AV24 has some sort of organizational or third-party standing to assert the claims of those affected users. And while they seem to say that Kennedy himself is affected because that evidence shows Meta users are being coerced or threatened for urging people to vote for him, the effect on the candidate is not what 11(b) protects. Accordingly, this evidence does not support the plaintiffs' assertions. The plaintiffs, therefore, fail to counter the compelling evidence and reasons that the defendants identify in explanation for the alleged censorship.
More critically, the plaintiffs do not deny the defendants' portrayal of and reasons for the defendants' actions. The plaintiffs fail to incorporate those reasons into their assessment of how a reasonable" recipient of Meta's communications would interpret the communications in context." See Wohl III, 661 F. Supp. 3d at 113. Based on the evidence provided so far, 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.
Towards the end of the ruling, the court finally gets to Section 230 and notes that the case is probably going nowhere even without everything earlier, because Section 230 makes Meta immune from liability for its moderation actions. However, the case didn't hinge on that because neither side really went deep on the 230 arguments.
As for the other RFK Jr. case, I had forgotten that he had also sued Google/YouTube over its moderation efforts. At the end of last month, the Ninth Circuit also upheld a lower court ruling on that case in an unpublished four-page opinion where the three-judge panel made quick work of the nonsense lawsuit:
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. 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. As Kennedy has not shown that Google acted as a state actor in removing his videos, his invocation of First Amendment rights is misplaced. The district court's denial of a preliminary injunction is AFFIRMED.
If RFK Jr. intends to appeal the latest Meta ruling (and given the history of his frivolous litigation, the chances seem quite high that he will), the Ninth Circuit might want to just repurpose this paragraph and swap out the Google" for Meta" each time.
Now, if only the Fifth Circuit would learn a lesson or two from the Ninth Circuit (or the Supreme Court), we could finally dispense with the one case that ridiculously went in RFK Jr.'s favor.