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Vaccine skeptic meets skeptical court as RFK Jr. challenges Google

In World
May 15, 2024

Longshot Democratic presidential candidate Robert F. Kennedy Jr. found little traction at a federal appeals court Tuesday for his arguments that Google violated his First Amendment rights by taking down YouTube videos it said contained misinformation about the dangers of vaccines.

A three-judge panel hearing oral arguments in San Francisco sounded skeptical about Kennedy’s demand that Google restore the videos because it was effectively acting as an arm of the federal government when it removed them, citing concerns they could be harmful to users.

“Private entities and the First Amendment don’t live in the same house,” Judge Consuelo Callahan said, noting that the Constitution’s protection of free speech protections is generally viewed as applying to government actions, not private businesses.

Scott Street, an attorney for Kennedy, said records obtained through other litigation showed Google was so receptive to the Biden administration’s requests that the company should be considered a state actor.

“The White House and the Surgeon General were demanding more removal of speech from tech platforms like YouTube,” Street said. “They were specifically identifying Mr. Kennedy as someone whose speech needed to be removed, curtailed on these platforms

A lawyer for Google said there was no evidence that any Kennedy speeches were taken down because of requests from federal officials.

“It is not the case that there is any communication here with Google about taking down Kennedy’s videos,” said the attorney, Ginger Anders. (There is evidence in the court record of a Biden administration official reaching out to another platform, Twitter, about a Kennedy video.)

Anders noted that the policy cited to take down the videos was adopted by Google in December 2020, before a flurry of public comments by President Joe Biden and other officials in 2021 criticizing the tech platforms. The videos in dispute were removed in 2023.

During the half-hour argument, Callahan pressed Anders on whether a direct threat by Biden to remove platforms’ legal protection against suits over user-provided content — a shield known as Section 230 — would be enough to convert what Google did into a form of state action.

“What if they said: We’re pulling 230 if you don’t take this down?” asked the judge, an appointee of President George W. Bush.

Anders replied that might be enough, but insisted that isn’t what happened.

“There could be some circumstances in which if the government threatened to change the law that that could amount to coercion,” she said. “The government immediately said that’s up to Congress. That’s not up to us as the administration. That is relevant as to whether this is threatening. The president himself said I’m not trying to hold any of the platforms accountable. I think that’s incredibly important as well.”

Judge Gabriel Sanchez, a Biden appointee, repeatedly questioned the timing of the takedowns, whether they aligned with any actions by the administration and what specific proof Kennedy had that he was being targeted by government officials.

“I found the evidence in support of your arguments sort of weak because it seems you have this timing issue,” Sanchez said to Street.

The third judge on the panel, John Kronstadt, asked fewer questions but also probed how the timing of the takedowns might impact the case for coercion. Kronstadt is an Obama appointee.

Anders disputed that the removal of a few videos out of hundreds was impacting Kennedy’s presidential campaign, which has found traction in recent weeks at least in terms of ballot access and is feared by many Biden allies as a potential threat to his re-election. She also urged the judges not to neglect Google’s own free-speech rights to manage its platforms as it sees fit.

“Google has a First Amendment right to engage in editorial discretion,” she said. “It is exercising its own right to decide that this is speech that it doesn’t want to promote or publish because it’s decided that it is harmful to its users.”

The company maintains that position. “YouTube applies its Community Guidelines independently, transparently, and consistently, regardless of political viewpoint,” said José Castaneda, a Google spokesperson, “These claims are meritless and we will continue to refute them.”

In March, the Supreme Court heard arguments in a case brought by the attorneys general of Louisiana and Missouri claiming users in those states airing views about issues like vaccine dangers were targeted by the tech giants for censorship at the behest of the Biden administration.

Most of the justices seemed highly skeptical of the notion that aggressive hectoring of the tech platforms by Biden or his aides was sufficient to deem them to be acting as agents of the government.

That case is likely to be decided by the end of June. Anders said during the appeals court arguments Monday that she saw no likely impact from that ruling on Kennedy’s because the evidence of coercion in his case was considerably weaker.

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