Facebook is urging a federal appellate court to refuse to revive a lawsuit by Robert F. Kennedy Jr.'s Children's Health Defense, which claimed its right to free speech was violated when its vaccine-related posts were suppressed.
In papers filed Wednesday with the 9th Circuit Court of Appeals, Facebook (now known as Meta) argues that U.S. District Court Judge Susan Illston in the Northern District of California correctly ruled that the First Amendment doesn't prevent private companies from exercising editorial discretion.
On the contrary, the company argues, it has a First Amendment right to decide how to handle content on its platform.
“The First Amendment protects the 'exercise of editorial control and judgment' by privately operated communications media over the content they do or do not disseminate,” Facebook writes, quoting from a Supreme Court decision striking down a Florida law that would have forced newspapers to allow political candidates to respond to critical editorials.
The company adds that “numerous courts have held that the First Amendment safeguards decisions about what content to promote or restrict.”
The battle between Children's Health Defense -- an organization that frequently questions vaccine safety -- and Facebook dates to August of 2020, when the group alleged in a federal lawsuit that Facebook deactivated a fund-raising tool and prevented the group's ad agency from purchasing online ads.
Facebook also allegedly labeled some Children's Health Defense posts as false, and demoted or banned content that the group posted to its page on the platform.
Children's Health Defense raised several claims, including that Facebook's moves violated the First Amendment. The organization contended that Facebook was a “state actor” -- meaning equivalent to the government -- when it took steps to prevent the spread of the group's posts.
Among other contentions, Children's Health Defense alleged that Facebook changed its vaccine-related policies due to “coercion” by Rep. Adam Schiff (D-California).
The organization called attention to a February 2019 letter in which Schiff accused Facebook and Instagram of “surfacing and recommending messages that discourage parents from vaccinating their children.”
Soon afterward, Facebook announced new policies aimed at cracking down on anti-vaxxers -- including removing access to fund-raising tools for groups that spread false news about vaccinations.
Illston rejected the group's argument, writing that the allegations didn't support the conclusion that Facebook acted on behalf of the government, or was coerced by the government.
Children's Health Defense recently urged the 9th Circuit to reverse Illston's ruling and reinstate the lawsuit.
“Ordinarily, a private company ... cannot be sued for First Amendment violations. This is not an ordinary case. These are not ordinary times,” the Children's Health Defense wrote in its appeal.
The group went on to argue that Facebook was “taking directions” from federal health officials, and “censoring all speech challenging governmental orthodoxy on COVID and vaccine safety.”
Facebook counters that government officials' expression of concern doesn't equate to governmental coercion.
“General regulatory interest in a problem does not transform all subsequent steps taken to address that problem into state action,” Facebook writes. “Were it otherwise, private actors would face unprecedented constitutional liability with significant chilling effects.”
Children's Health Defense has until mid-January to respond to Facebook's argument.