• by Wendy Davis  @wendyndavis, August 9, 2024

Siding with Meta Platforms, a federal appellate panel on Friday refused to reinstate a lawsuit by Robert F. Kennedy, Jr.'s Children's Health Defense, which claimed the social media platform violated the First Amendment by suppressing the group's vaccine-related posts.

Instead, the panel ruled that Meta has a constitutional right to wield editorial control over the content on its platform.

“Meta has a First Amendment right to use its platform to promote views it finds congenial and to refrain from promoting views it finds distasteful,” 9th Circuit Court Judge Eric Miller, an appointee of former President Donald Trump, wrote in an opinion joined by U.S. District Court Judge Edward Korman.

The decision upheld a ruling issued in 2021 by U.S. District Court Judge Susan Illston in the Northern District of California.

The battle between Children's Health Defense and Meta dates to last August 2020, 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.

The group claimed those moves 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 and the government worked together to censor speech, and that Facebook allegedly changed its vaccine-related policies due to “coercion” by lawmakers.

Among other evidence, the organization called attention to a letter sent by Schiff to Facebook CEO Mark Zuckerberg in February 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.

The organization then appealed to the 9th Circuit, arguing that Illston gave short shrift to evidence that Facebook and the government worked together to suppress vaccine-related posts.

The panel majority rejected that argument, ruling that Children's Health Defense failed to allege the kinds of facts that, if true, could prove either that Meta and the government agreed to censor speech, or that the government coerced Meta into revising its policies.

“Meta evidently believes that vaccines are safe and effective and that their use should be encouraged. It does not lose the right to promote those views simply because they happen to be shared by the government,” Miller wrote.

He added that Schiff's letter to Meta didn't amount to coercion, noting that the letter “did not require Meta to take any particular action and did not threaten penalties for noncompliance.”

Circuit Judge Daniel Collins, also a Trump appointee, dissented, writing that he would have allowed the Children's Health Defense to pursue a request for an injunction against Meta.

He wrote that under the circumstances, he would hold that “Meta’s interactions with the government with respect to the suppression of specific categories of vaccine-related speech, and in particular the speech of [Children's Health Defense] and Kennedy,” implicate the First Amendment.