• by Wendy Davis , Staff Writer @wendyndavis, August 3, 2023

Vaccine critic Robert F Kennedy Jr., who is seeking the Democratic presidential nomination, claims in a new lawsuit that YouTube violated the First Amendment by removing videos in which he expressed controversial views about vaccinations.

One of those videos was of an event held in March at Saint Anselm College's New Hampshire Institute of Politics Kennedy, where Kennedy delivered a speech in which he questioned the pharmaceutical industry.

Manchester Public Television posted the speech to YouTube, but the platform removed it -- allegedly due to Kennedy's remarks regarding vaccines.

His complaint also alleges that YouTube removed clips of interviews he did with podcast hosts Jordan Peterson and Joe Rogan, due to remarks that violated the platform's policy regarding medical misinformation.

“This censorship campaign prevents Mr. Kennedy’s message from reaching millions of voters,” his complaint alleges. “It also makes it harder for groups that are supporting his campaign to amplify his message through public sources.”

He alleges that YouTube took down the material as part of a “partnership” with the White House “to censor dissenting views.”

To support this contention, the complaint references a highly publicized July 2021 press conference at which former Press Secretary Jen Psaki and Surgeon General Vivek Murthy issued recommendations aimed at curbing false information about COVID-19. At that event, Murthy said the government was asking tech companies to monitor and take action “against misinformation super-spreaders,” while Psaki said the government was “flagging problematic posts for Facebook that spread disinformation.”

He also contends his candidacy for office “have made him an even bigger target for the public/private censorship regime that Google and YouTube are an integral part of.”

Kennedy's complaint characterizes YouTube as “the digital equivalent of the town square,” and “a public forum of some sort.”

“Whether it is a traditional public forum, a limited public forum or something else does not matter,” the complaint alleges. “It cannot exclude people from the platform based on their viewpoint.”

The candidate is seeking a court order declaring that YouTube violated the First Amendment, and requiring the company to restore videos of his remarks.

A YouTube spokesperson says the claims are meritless, and that the company applies its content guidelines without regard to political viewpoint.

It's worth noting that federal judges have already ruled that private social media companies aren't bound by the First Amendment's prohibition against censorship. In those cases, judges have said private companies don't become “state actors” -- meaning agents of the government -- merely by agreeing to requests by government officials.

For instance in 2021, U.S. District Court Judge Susan Illston in the Northern District of California dismissed claims that Meta Platforms violated the First Amendment rights of the group Children's Health Defense (an organization Kennedy founded) by allegedly deactivating a fund-raising tool it used on the platform, and demoting or banning material the organization posted.

Children's Health Defense unsuccessfully argued in that case that Meta changed its content policies due to “coercion” by Rep. Adam Schiff (D-California).

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

Illston said in her ruling that those allegations, even if true, wouldn't show that the government coerced Meta or directed the company to suppress content.

The organization has appealed to the 9th Circuit, which hasn't yet issued a decision.

Kennedy isn't the only politician to argue that platforms violate the First Amendment by moderating content.

Former President Donald Trump brought similar claims against Meta, X Corp. (then named Twitter) and YouTube.

U.S. District Court Judge James Donato in the Northern District of California threw out Trump's complaint against X. Corp last year, ruling that the First Amendment only prohibits censorship by the government.

“Plaintiffs’ only hope of stating a First Amendment claim is to plausibly allege that Twitter was in effect operating as the government,” Donato wrote at the time. “This is not an easy claim to make, for good reasons. Private entities are presumed to act as such.”

Trump has appealed that ruling to the 9th Circuit, which has scheduled arguments in the case for October 4 in Pasadena.