A federal appeals panel has ruled the parent company of Facebook and Instagram did not violate constitutional rights by censoring the speech of vaccine skeptics, because Facebook apparently censored the speech willingly and not under the explicit direction of government officials.
On Aug. 9, a divided panel of the U.S. Ninth Circuit Court of Appeals sided with Meta Platforms, the parent company of Facebook and Instagram, in their dispute with Children's Health Defense, an organization headed by independent presidential candidate Robert F. Kennedy Jr., which advocates about the alleged dangers of vaccines.
The case landed in federal court in 2020, when Kennedy and CHD filed suit against Meta and its president Mark Zuckerberg and other defendants, including The Poynter Institute for Media Studies and Science Feedback.
The lawsuit accused Meta and its co-defendants of illegally acting as speech censors on behalf of the administration of President Joe Biden in seeking to suppress so-called "misinformation" posted online by those questioning the safety and effectiveness of the Covid shots being distributed and often mandated by government agencies and employers alike.
Biden's vice president Kamala Harris is running for president as the Democratic nominee, promising to continue or strengthen many of Biden's policies.
In their lawsuit, Kennedy and CHD say Meta and its co-defendants moved at the request of Democratic members of Congress as early as 2019 to suppress posts questioning vaccines, in general.
But the speech suppression was boosted amid the rollout of the Covid vaccines, as Meta partnered with the Poynter Institute and Science Feedback to review, flag and at times removing posts deemed to be "misinformation" about vaccines.
CHD asserted Meta also restricted its ability to raise funds, deactivating the group's "donate button" on the CHD Facebook page, claiming CHD's speech "had violated Facebook's 'fundraising terms and conditions'" because it had "repeatedly posted content that has been disputed by third-party fact-checkers [for] promoting false content."
Amid the rollout of the Covid shots, Meta further tightened restrictions, blocking "users from sharing any 'claims that COVID-19 vaccines are not effective in preventing COVID-19." In the years following, research and observation has demonstrated that Covid shots neither stop those receiving the vaccines from contracting nor spreading the disease to others.
CHD asserts Meta has further censored them by limiting the reach of their posts through processes known as "shadow-banning" and "sandboxing," processes which allow users to post but make it all but impossible for them to share their message with anyone who didn't already follow them or had signaled agreement with their posts.
CHD claimed Meta's actions amounted to violations of their First Amendment speech rights and violations of their Fifth Amendment rights, by acting at the request of government officials to take away their ability to fundraise.
In support of their claims, they say Meta acted after receiving requests from Democratic Congressman Adam Schiff and officials in the Biden administration to review and tighten their rules and policies concerning so-called vaccine misinformation on their platforms.
The case moved to the Ninth Circuit after Kennedy and CHD appealed the ruling of San Francisco federal District Judge Susan Illston, who had sided with Meta.
On appeal, CHD and Kennedy found no better reception, as the appellate judges agreed CHD can't show Meta acted under an explicit agreement or order from the federal officials to censor vaccine skeptics on their platforms.
Judge Daniel P. Collins dissented from the majority opinion concerning CHD's First Amendment claims against Meta.
"Critically, it is not enough to show an agreement to do something," Miller wrote. "The private party and the government must also have agreed on what the something is.
"Thus, a plaintiff must show some specificity to the understanding between the private actor and the government.
"CHD has not done so. In an effort to show an agreement, 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."
The majority said allowing CHD to sue in this case would enable others to sue social media companies as "state actors" for working with the government to restrict access to pornography or other forms of speech that may otherwise be harmful and less protected by the First Amendment.
"Our decision should not be taken as an endorsement of Meta’s policies about what content to restrict on Facebook," Miller wrote. "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.
"... 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."
In dissent, Collins said the evidence is clear that Meta worked closely with the federal government, and often at the guidance of government officials, including high ranking officials within the the Biden administration, to suppress speech the government didn't wish to be heard about Covid vaccines.
He noted particularly the evidence that Meta even allowed "pre-selected Government officials" access to a special portal where they could "submit targeted requests for specific Covid-vaccine-related posts to be taken down."
"... Under the allegations here, Meta worked extensively with Executive Branch officials to adjust and refine its criteria and practices with respect to limiting or suppressing vaccine-related speech," Collins wrote. "These were not simply informational exchanges in which Meta passed along its internal criteria for addressing such speech. Rather, Meta engaged in a dialogue with Executive Branch officials to develop and 'begin enforcing' new policies with respect to Covid-vaccine-related speech. In particular, there was extensive discussion with Government officials about what 'levers' to exercise against truthful 'vaccine hesitancy content.'
"And the Government was hardly a passive participant in these discussions."
While Collins agreed with the dismissal of claims against Meta's co-defendants, and dismissal of the Fifth Amendment takings claim, he said he believed CHD could rather easily show that Meta became a true "state actor" in partnering with the Biden-Harris administration to illegally censor speech, if it were given the opportunity to amend its complaint and try again.
The majority's opinion, Collins said, rests "on an overstated view of Meta's relevant First Amendment rights, which do not give Meta an unbounded freedom to work with the Government in suppressing speech on its platforms," simply because Meta happens to agree with the government's position concerning the disfavored speech.
Collins noted Meta, as a social media platform, enjoys a unique legal arrangement, granted by federal law, which allows it to edit and censor speech posted by others on its platform, as a newspaper or other traditional publisher might, without meeting the requirement that it entirely direct the content that is published on its pages.
Allowing Meta to use that legal distinction to censor speech, at the request of government officials, creates a new scenario in which "the Government can create a special immunized power for private entities to suppress speech on a mass scale and then request and receive, from those private entities, an ability to influence the exercise of those levers of censorship," Collins wrote.
"That would thwart the First Amendment's core purpose to 'prevent the government from tilting public debate in a preferred direction.'"
In this instance, Collins said, "Meta and the Government worked cooperatively together to suppress the concededly truthful speech of Americans concerning vaccines, and the Government sought to do so for the illegitimate purpose of dampening opposition to the Government's preferred vaccine policies."
CHD was represented by attorneys Jed Rubenfeld, of Yale Law School, of New Haven, Connecticut; Robert F. Kennedy Jr. and Mary S. Holland, of CHD; and Roger I. Teich, of San Francisco.
Meta was represented by attorney Sonal N. Mehta, of Wilmer Cutler Pickering Hale and Dorr LLP, of Palo Alto; Mark R. Caramanica, of Thomas & LoCicero, of Tampa, Florida; and other attorneys with the firms of Wilmer Cutler; Thomas & LoCicero; and Jassy Vick Carolan, of Los Angeles.