• by Wendy Davis , Staff Writer @wendyndavis, July 1, 2021

Siding with Facebook, a federal judge has tossed a lawsuit by vaccine critics who claimed the company violated their free speech rights by “censoring” their posts.

In a decision issued this week, U.S. District Court Judge Susan Illston in San Francisco reiterated that private companies like Facebook don't violate the First Amendment by suppressing or banning users' posts, or by rejecting users' ads, because the First Amendment only prohibits the government from squelching speech based on its content.

The ruling brings an end to a case filed by the Children's Health Defense last August, when the organization alleged that its First Amendment rights were violated by Facebook. (The group, which was founded by Robert F. Kennedy, Jr., denies being “anti-vaccine,” and describes itself as advocating “for informed patient consent based on full disclosure of all relevant medical information.”)

The organization alleged in its complaint that Facebook wrongly deactivated a fund-raising tool Children's Health Defense used on the platform, and also prevented the group's ad agency from purchasing online ads. Facebook also allegedly began to demote or ban content that Children's Health Defense posted to its page on the platform.

Children's Health Defense claimed those moves by Facebook violated the First Amendment. The First Amendment doesn't typically apply when private companies squelch speech based on content, but the group sought to get around that limitation by arguing that Facebook was a “state actor” -- meaning equivalent to the government -- for the purposes of the lawsuit.

The group proposed several theories to support its argument, including that Facebook allegedly changed its policies due to “coercion” by Rep. Adam Schiff (D-California).

The organization specifically referred to a letter sent by Schiff to Facebook CEO Mark Zuckerberg in February of 2019, blasting the company for enabling the spread of anti-vaccine propaganda on the service.

In the letter, Schiff accused Facebook and Instagram of “surfacing and recommending messages that discourage parents from vaccinating their children.”

The lawmaker said the messages represent “a direct threat to public health” and questioned Zuckerberg over Facebook's policies regarding false information about vaccines.

Soon afterward, Facebook announced new policies aimed at cracking down on anti-vaxxers -- including removing access to fundraising tools for groups that spread false news about vaccinations. Children's Health Defense was among the groups affected by the change in policy.

Illston said in her ruling that none of the Children's Health Defense's allegations, even if true, would show that the government coerced Facebook.

“The Court concludes that [Children's Health Defense] has not alleged facts showing government coercion sufficient to deem Facebook or Zuckerberg a federal actor,” U.S. District Court Judge Susan Illston in San Francisco wrote.

She added that the Children's Health Defense didn't allege that Schiff, or anyone else in the government, “directed Facebook or Zuckerberg to take any specific action” regarding the organization's Facebook page.

The dismissal was with prejudice, meaning that Children's Health Defense can't amend its claims and bring them again.