Google, YouTube Seek to Sink RFK Jr.’s Anti-Vax Speech Suit

Robert F. Kennedy Jr.’s bid for a court order forcing Google LLC and YouTube LLC to restore his videos questioning the safety of Covid-19 vaccines ran into a doubtful US judge who questioned whether the candidate and scion had met the legal prerequisites for such a ruling.

The anti-vaccine activist, who has declared his intent to challenge President Joe Biden’s bid for the Democratic Party’s nomination next year, accused the administration of taking “extraordinary steps” to “silence people it does not want Americans to hear.” YouTube is a “digital town square that voters trust as a place to get news and opinions about the issues of the day, a place where people can communicate about matters of public concern,” his Aug. 2 lawsuit said.

The tech giants said two of Kennedy’s videos were removed earlier this year for violating the sites’ medical and vaccine misinformation policies. They argue the court should reject his “remarkable claim that the First Amendment requires Google—a private entity with its own First Amendment rights—to disseminate his wrong and dangerous medical falsehoods to the entire world on its video-sharing platform, YouTube.”

Judge Trina L. Thompson of the US District Court for the Northern District of California appeared skeptical during Monday’s arguments that Kennedy had shown the requisite harm to support his request for a temporary restraining order preventing the Alphabet Inc.-owned tech companies from “censoring” the videos as the 2024 presidential race intensifies.

The judge also questioned why Kennedy waited months after YouTube took down a video of his March remarks to a New Hampshire audience to seek the emergency action of a TRO. Kennedy declared his intent to run in April. Another video with comedian Joe Rogan was removed in July. None of the removed videos was posted by Kennedy himself but by third parties.

Kennedy’s attorney, Scott J. Street, said Kennedy “believes strongly that during his political campaign the technology companies would stop censoring him, recognizing the settled principles that more speech” is better. Further, Twitter and Facebook changed the way they have dealing with Kennedy, while Google continued to “censor” him despite repeated requests, he said.

Thompson took the arguments under advisement and reserved Nov. 7 to hear the preliminary injunction and dismissal motions. She noted that discovery, which Kennedy requested, isn’t warranted at this time. Google’s counsel Jonathan Blavin with Munger, Tolles & Olson LLP said the dismissal motion will be filed before Aug. 30.

Banning Contradiction

Street said Google’s misinformation policies prohibit speech that contradicts government sources.

“Promoting public health is something that the government does. That’s inherently a government action,” he said. Google’s actions have created a chilling effect whereby anyone who posts videos of Kennedy’s remarks on vaccine issues will have the post removed and get a strike for violating policies, said Street, who is with JW Howard Attorneys. Kennedy too is an attorney there.

Kennedy argues Google is doing the government’s bidding, adopting policies that “rely entirely on the government to decide what information to remove from YouTube. By their terms, the rules change only when the government changes its position.”

Google contends Kennedy has a “profound misunderstanding of bedrock First Amendment law.”

“Far from requiring Google to disseminate misinformation, the First Amendment protects Google’s judgment that it will not help spread dangerous anti-vaxx propaganda,” Google’s motion opposing the TRO said.

Against Public Interest

“Forcing Google to carry medical and vaccine misinformation on YouTube is absolutely against the public interest,” Blavin said.

The documents show Google was already crafting its policies and looked to the World Health Organization and local health officials during a deadly public health emergency with nothing to show there was governmental pressure. “If anything, it shows that Google as independently exercising its own judgment that these were important policies to adopt,” he said.

Blavin urged the court reject Kennedy’s arguments that Google was conducting itself a a state actor and that Google’s misinformation policies should be stayed during the political campaign.

“The fact that you’re running for office doesn’t excuse you from satisfying the demanding requirement of state action doctrine. And there’s no authority there should be a looser standard” applied because of political authority, Blavin said.

Munger, Tolles & Olson LLP represents Google and YouTube. JW Howard/ Attorneys Ltd. represents Kennedy.

The case is Kennedy, JR. v. Google LLC, N.D. Cal., No. 3:23-cv-03880, hearing 8/21/23.