• by Wendy Davis  @wendyndavis, November 11, 2024

Google on Friday asked a federal appellate court to reject Robert F. Kennedy, Jr.'s attempt to revive claims that YouTube violated his First Amendment rights by removing clips that violated its policies against medical misinformation.

The 9th Circuit Court of Appeals already sided against Kennedy on this issue once, ruling in August that he wasn't entitled to a preliminary injunction that would have forced YouTube to restore the videos -- including clips of his interviews by podcast hosts Jordan Peterson and Joe Rogan. That ruling, issued by a three-judge panel, upheld a trial judge's finding that Kennedy was unlikely to prevail with his First Amendment claim because Google is a private company.

Google is now arguing that Kennedy's new appeal should be dismissed because it is “materially indistinguishable” from his prior effort to force YouTube to restore the clips.

The First Amendment generally prohibits the government from censoring speech, but doesn't prevent private companies from suppressing content -- unless those companies are engaged in “state action,” meaning they acted as government agents.

Kennedy previously argued to the 9th Circuit that Google was a state actor when it took down the clips, contending that the company's medical misinformation policy relied on “government sources,” such as the World Health Organization and local health authorities.

In August, when the appellate court rejected that argument, the panel wrote that Kennedy failed to identify “any threatening or coercive communication, veiled or otherwise,” about him from a federal official to Google.

After the appellate ruling came out, U.S. District Court Judge Trina Thompson in the Northern District of California dismissed Kennedy's lawsuit.

Kennedy then appealed the dismissal to the 9th Circuit, but he hasn't yet filed substantive arguments with that court.

On Friday, Google asked the 9th Circuit to summarily reject Kennedy's appeal.

“The court has already considered all of the facts and arguments that Kennedy relied upon in opposing Google’s motion to dismiss and concluded that they are insufficient to show that Google engaged in state action,” the company argued.

“Kennedy’s allegations -- taken as true and viewed in the light most favorable to him -- do not come close to plausibly showing that the government coerced or compelled Google to engage in the challenged conduct,” the company argued.

“Google obviously does not exercise any government-conferred authority when it decides what content is allowed on its own platforms,” the company added. “And Google’s content moderation policies are its own, not something imposed by statute or regulation.”