Vaccine Critics Seek To Revive Free Speech Claims Against Facebook

Children's Health Defense, an organization founded by vaccine critic Robert F. Kennedy, Jr., is aiming to revive a lawsuit claiming its free speech rights were violated when its posts were “censored” by Facebook.

The group this week appealed U.S. District Court Judge Susan Illston's dismissal of its lawsuit to the 9th Circuit Court of Appeals. The organization has not yet filed any substantive arguments with the appellate court.

Illston said in her ruling that private companies 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 battle between Children's Health Defense and Facebook dates to last August, when the organization alleged 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.

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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 argued that Facebook was a “state actor” -- meaning equivalent to the government -- for the purposes of the lawsuit.

Children's Health Defense 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 called attention 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 that letter, Schiff accused Facebook and Instagram of “surfacing and recommending messages that discourage parents from vaccinating their children.”

Soon after Schiff sent the letter, 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. (The group denies being “anti-vaccine” and describes itself as advocating “for informed patient consent based on full disclosure of all relevant medical information.”)

Illston, a judge in San Francisco, said in a ruling issued earlier this month that the Children's Health Defense's allegations, even if proven true, wouldn't prove the government coerced Facebook.

Since the decision came out, Facebook has come under new pressure regarding vaccine misinformation on the service. ]]

Last week, President Joe Biden accused the company of “killing people” -- although several days later, he backtracked by saying Facebook wasn't itself killing people, but should do more to prevent misinformation about the vaccines from circulating on the platform.

On Thursday, Senators Amy Klobuchar (D-Minnesota) and Ben Ray Lujan (R-New Mexico), proposed legislation that would strip Facebook and other sites of legal protections for posts by users that contained incorrect information about vaccines, if the sites algorithmically amplified those posts.

Earlier in the year, Klobuchar and Lujan expressed concern to Facebook about 12 specific sources -- including Kennedy's Children's Health Defense -- that were accused by the Center for Countering Digital Hate of spreading false information about vaccines.

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