• by Wendy Davis  @wendyndavis, October 29, 2021

Robert F. Kennedy Jr.'s Children's Health Defense is urging a federal appellate court to reinstate a lawsuit claiming that Facebook violated the First Amendment by suppressing the group's vaccine-related posts.

U.S. District Court Judge Susan Illston in the Northern District of California dismissed the case earlier this year, ruling that private companies don't violate the First Amendment by blocking users' speech, because the First Amendment only prohibits the government from squelching speech based on viewpoint.

The Children's Health Defense is now challenging Illston's ruling. The group says it should have been allowed to proceed against Facebook and CEO Mark Zuckerberg, based on the theory that the company was acting “as a censorship instrument and agent of the United States government” when it suppressed the organization's posts.

“Ordinarily, a private company and its Chief Executive Officer cannot be sued for First Amendment violations. This is not an ordinary case. These are not ordinary times,” the Children's Health Defense writes in papers filed Thursday with the 9th Circuit Court of Appeals.

“Partnering with a federal agency, taking directions from federal health officials, working directly and pursuant to agreement with the White House, coercively threatened by federal lawmakers, and spurred by an immunity granted by federal statute, Facebook has adopted a policy of censoring all speech challenging governmental orthodoxy on COVID and vaccine safety,” the group writes.

The battle between Children's Health Defense and Facebook dates to last August, when the organization alleged that Facebook 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 label some Children's Health Defense posts as false, and demote or ban content that the group posted to its page on the platform.

Children's Health Defense claimed those moves by Facebook violated the First Amendment, arguing that Facebook was a “state actor” -- meaning equivalent to the government -- when it took steps to prevent the spread of the group's posts.

Children's Health Defense proposed several theories to support its argument, including that Facebook allegedly changed its vaccine-related 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 rejected the Children's Health Defense's theories, writing that even if the group's allegations were proven true, they wouldn't show that the government coerced Facebook.

Children's Health Defense now says it should have been able to move forward with its claims, arguing there was evidence that Facebook and the government worked together to suppress vaccine-related posts.

The evidence “amply supports an inference of agreement and hence joint action between Facebook and federal actors to censor so-called 'vaccine misinformation,'” the organization argues.

The organization pointed specifically to Facebook's statement that it removes content that repeats vaccine-related falsehoods that have been “widely debunked by leading health organizations” such as the World Health Organization and the Centers for Disease Control and Prevention.

The Children's Health Defense contends that statement, among others, supported its contention that Facebook and the CDC agreed "to act jointly to censor vaccine-related speech that federal officials sought to suppress.”

Facebook is expected to respond to the group's argument by November 29.

In recent months, Facebook has faced increased scrutiny over its content policies -- including the way it treats misinformation about about COVID-19 vaccines.

President Joe Biden recently urged the company to prevent false posts about the vaccines from circulating, and 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.

Facebook isn't the only social media platform to suppress anti-vaccine posts. In September, Google's YouTube removed video channels of several prominent vaccine critics, including Kennedy. Twitter has also suspended users over vaccine-related posts.