Judge skeptical of Robert F. Kennedy Jr. election interference suit against Meta

SAN FRANCISCO (CN) — A federal judge said Wednesday afternoon that he is unlikely to grant Robert F. Kennedy Jr.’s request for a preliminary injunction against Meta on claims that the social media giant interfered with Kennedy’s presidential election campaign.

Kennedy sued Meta in May, claiming Meta censored a 30-minute video advertisement about his life on Facebook, Instagram and other Meta-owned platforms by blocking users on those platforms from watching, sharing or linking to the video. When users attempted to share or discuss the video, Kennedy claims that Meta suspended or banned the accounts in violation of the First Amendment.

Kennedy requested a preliminary injunction that would stop Meta from censoring any of Kennedy’s posts until after the November election.

“I don’t see state action alleged for the First Amendment claim, because I don’t see Meta as a state actor. The Voting Rights Act claim is novel. It certainly isn’t hitting issues that the act was designed for,” Senior U.S. District Judge William Orrick, a Barack Obama appointee told Kennedy’s lawyer, Jed Rubenfeld, at a Wednesday afternoon hearing.

Orrick said that the video has been restored by now and has been seen millions of times, so there is no irreparable injury.

The video, titled “Who is Bobby Kennedy” and narrated by actor Woody Harrelson, dives into Kennedy’s background as a lawyer as well as his controversial skepticism about the effectiveness of the Covid-19 vaccine and pandemic-era lockdowns.

Kennedy claimed that prohibiting users from watching the video amounts to censorship restricting protected speech, and accused Meta of being a “state actor” that was censoring his videos because of pressure from the U.S. government. He also accused Meta of violating the Voting Rights Act.

Kennedy also sued Google earlier this year on similar claims. On Monday, his request for a preliminary injunction in that case was denied by a federal appeals court.

Rubenfeld said that he disagreed with Orrick’s interpretation on Wednesday.

“I think you got a pretty straight-up violation of the Voting Rights Act,” he said.

“I don’t see the argument with respect to the Voting Rights Act because I don’t think that the threats and coercion that’s ever been found through the Voting Rights Act are similar to the kinds of injury that your client is describing,” Orrick told Rubenfeld.

Rubenfeld said that in addition to removing the video, Meta is now removing posts from users who post supportive messages such as “vote Kennedy.”

“Facebook and the other defendants were not just blocking these posts, Your Honor, they were sending messages to those who had tried to post them, threatening those users with account suspension or termination,” Rubenfeld said, adding that the posts do not violate Meta’s terms of service, and Meta does not deny it removed the posts.

Orrick asked if the relief Kennedy is seeking is affected by Kennedy’s recent decision to drop out of the race and endorse Republican nominee Donald Trump.

“Our answer is absolutely no, Your Honor. It has no effect on this case,” Rubenfeld said, noting that Kennedy is remaining on the ballot in many states and could conceivably win the election.

Rubenfeld said he simply wants Meta to stop censoring information about Kennedy on its platforms.

Ari Hotlzblatt, counsel for Meta, said that Meta’s conduct did not violate the Voting Rights Act because being told you’re violating content policy does not qualify as objectively threatening. A subjective intent is required as well, he said, like proof that Meta singled out Kennedy.

“There was no subjective intent to target or threaten or do anything with respect to Mr. Kennedy’s supporters or to Mr. Kennedy,” Holtzblatt said.

Hotlzblatt said that Meta’s content policies are protected by the First Amendment, and that Kennedy was trying to force Meta to publish content it did not wish to publish. He likened it to newspapers, where it’s up to the newspaper’s owners or editors on what content can be published. The same protections apply to social media platforms as well, he said.

Orrick asked Holtzblatt if Meta was taking down users’ messages of support for Kennedy’s campaign.

“That’s not what is going on,” Holtzblatt answered. He said that spam posts and phishing scams using Kennedy’s name were being deleted, and that there are policies across the board at Meta that make political content not appear as often as it used to, but that that doesn’t target Kennedy in particular.

Holtzblatt ended his argument by stating that he believed the motion should be moot. When the injunction was filed, Kennedy was actively campaigning. Now, since Kennedy is no longer campaigning the motion should no longer apply, he said.

Orrick said he would take the matter under consideration.