• by Wendy Davis , Staff Writer @wendyndavis, July 18, 2024

Last year, Robert F. Kennedy, Jr. claimed in a lawsuit against Google's YouTube that it violated the First Amendment by removing videos in which he made controversial statements about vaccinations.

The independent presidential candidate sought an order requiring YouTube to restore the videos -- including clips of him being interviewed by podcast hosts Jordan Peterson and Joe Rogan.

He argued that Google should be considered a “state actor” -- meaning equivalent to the government -- because its medical misinformation policy allegedly relies on “government sources,” such as the World Health Organization and local health authorities.

The First Amendment generally prohibits the government from suppressing speech but doesn't prevent private companies from doing so -- unless the companies are deemed “state actors.”

U.S. District Court Judge Trina Thompson in the Northern District of California rejected Kennedy's request for a pre-trial injunction, but he is continuing with the lawsuit and could -- at least theoretically -- still obtain an injunction if he prevails after a trial.

For its part, Google has consistently argued that it has the First Amendment right to decide what to material to allow on YouTube.

This week, Google filed new papers with Thompson, calling her attention to two recent Supreme Court decisions -- one issued in late June and the other in July. The company says those rulings confirm that Kennedy lacks grounds to force YouTube to host his videos.

Both of the rulings deal with content moderation by social media platforms, and both supporting the principle that social media platforms have the right to wield control over content on their platforms.

The First Amendment “does not go on leave when social media are involved,” Justice Elena Kagan wrote in the July decision, which examined laws in Texas and Florida that would have restricted platforms' ability to suppress users' posts. (The court ultimately returned the dispute over those laws to lower courts, with instructions to take a closer look at the state statutes.)

Kagan's ruling “reinforces Google’s argument that the sole form of relief Kennedy seeks in his complaint -- an injunction preventing Google from removing certain videos featuring Kennedy -- would violate Google’s First Amendment rights vis-à-vis its content moderation on YouTube,” the company writes.

The June decision, authored by Justice Amy Coney Barrett, struck down an injunction that could have prevented Biden administration officials from discussing controversial subjects with personnel at social media platforms.

In that case, attorneys general from Missouri and Louisiana claimed that government officials violated the First Amendment by pressuring the platforms to revise misinformation polices in ways that led to removal of anti-vaxxer posts, among other topics.

But Barrett said there was evidence the platforms had independently revised their content policies before government officials weighed in.

Barrett's reasoning “reinforces Google’s arguments ... that Kennedy has failed to plausibly plead that the government engaged in any coercion or significant encouragement, or that any specific content moderation decisions by Google about videos of Kennedy were caused by the alleged state action,” the company says.

Thompson is expected to hold a hearing in the matter on October 22.