A group accused of promoting vaccine misinformation wants a judge to advance a lawsuit claiming the federal government coerced Facebook into stifling its free speech rights.
SAN FRANCISCO (CN) — In a lawsuit claiming Facebook conspired with the federal government to squelch an anti-vaccine group’s speech, a federal judge on Wednesday questioned whether the state can work with private companies to combat misinformation without violating the First Amendment.
Senior U.S. District Judge Susan Illston oversees a lawsuit brought by Children’s Health Defense (CHD), a Georgia nonprofit founded by vaccine skeptic Robert F. Kennedy Jr. The group publishes information about supposed harms associated with vaccines and 5G wireless networks, which critics have denounced as conspiracy theories and misinformation.
In January 2019, Facebook started slapping warning labels on content posted on CHD’s Facebook page, including in September that year when the social media giant posted a message directing users to seek “reliable, up-to-date information” about vaccines from the U.S. Centers for Disease Control and Prevention. Facebook also started labeling some of CHD’s content as “false information” based on research by third-party fact checkers, including a link to an article claiming vaccinated children “are more likely to have adverse health outcomes” in May 2020.
CHD sued Facebook and its CEO Mark Zuckerberg this past August seeking at least $5 million in damages over the social network’s censoring practices and decision to disable a “donate” button on CHD’s Facebook page, which it says hobbled the group’s ability to raise money through the platform.
The First Amendment generally shields internet platforms like Facebook from lawsuits challenging how they moderate or censor content, but CHD claims the government coerced and encouraged Facebook to stifle its speech, transforming a private company’s actions into a state-sponsored directive.
In a virtual hearing on Facebook’s motion to dismiss the lawsuit Wednesday, Judge Illston asked if the government can ever take steps to counter misinformation without running afoul of the First Amendment.
“Let’s say there was something on the internet that says, ‘If you take a Covid vaccine, you’re going to grow a third head.’ That’s clearly not true. Is it OK to not let that be published?” Illston asked.
CHD attorney Roger Teich replied, “I don’t think it’s OK if the government is calling the shot.”
Illston pressed: “You think it’s inappropriate for the government to say generally, ‘We’d really like it if all these private social media outlets didn’t publish lies about the Covid vaccine?’ That’s not alright to say that?”
Teich answered that it was the CDC’s “underhandedness” in using Facebook to restrict speech that violates the Constitution.
Teich’s client cited multiple statements by Zuckerberg, the CDC and “its proxy,” the World Health Organization, declaring that they were “in discussion” and “working together” to reduce the spread of vaccine misinformation.
CHD also cited a February 2019 letter by U.S. Rep. Adam Schiff, D-Calif., to Facebook voicing concern about the proliferation of vaccine misinformation on social media. CHD claims that letter combined with Schiff’s statement during a June 2019 congressional hearing that lawmakers should “make changes to” a 1996 law that shields internet platforms from lawsuits over content posted by users amounts to a “threat” intended to “coerce” Facebook into doing the government’s bidding.
“State action must be found whenever government officials are coercing, inducing or encouraging private parties to do what they themselves cannot constitutionally do,” CHD attorney Jed Rubenfeld said.
Facebook argues that Schiff’s letter merely requested information from Facebook. Citing a recent decision in Daniels v. Alphabet Inc., a case challenging the removal of YouTube videos, Facebook attorney Sonal Mehta argued the plaintiffs can’t show government actors directed Facebook to censor content.
“Nobody said censor CHD or we’ll go after you on Section 230,” Mehta said, referring to part of the 1996 Communications Decency Act that makes internet platforms immune from lawsuits for contest posted by users.
CHD argued that U.S. Magistrate Judge Virginia DeMarchi in San Jose got it wrong when she dismissed Daniels v. Alphabet Inc. on March 31. The plaintiff in that suit argued Schiff and House Speaker Nancy Pelosi had coerced YouTube, owned by Google’s parent Alphabet, into removing objectionable content. DeMarchi dismissed the suit with leave to amend, finding the plaintiff did “not plead any facts suggesting that Speaker Pelosi or Rep. Schiff were personally involved in or directed the removal” of videos.
CHD attorney Jed Rubenfeld said DeMarchi “was not informed of the precedent” when she issued that ruling.
“What matters is if they gave the private party the standard of decision,” Rubenfeld said. “The CDC gives Facebook the standard of decision.”
“And does it matter if what the CDC said is true,” Illston asked.
Rubenfeld replied by insisting the information his client has posted about vaccines is true, but even if the speech was false, “it would still be constitutionally protected.”
CHD also seeks permission to add new allegations to its lawsuit about purported coordination between Facebook and President Joe Biden’s administration to deter the spread of vaccine misinformation online.
In addition to Facebook, CHD also sued one of the social media company’s fact-checkers. The Poynter Institute, which owns the fact-checking service Politifact, is accused of colluding with Facebook to prevent CHD from promoting an article on a study that found children who got the flu vaccine were at “significantly” greater risk of contracting coronavirus. Politifact found that study was not credible.
The Poynter Institute’s lawyer, Carol LoCicero, argued fact-checking is a fundamental journalistic activity that is protected by the First Amendment.
“It’s a journalistic right to criticize things it believes are inaccurate and being spread on social media in accordance with its journalistic practices,” LoCicero said. “We would ask that you dismiss with prejudice all the claims against Poynter and let us go home and practice journalism.”
CHD’s claims include violations of the First and Fifth Amendments, Lanham Act and antiracketeering laws involving conspiracy to commit wire fraud.
After a two-hour hearing, Judge Illston took the arguments under submission.