Not in Public's Interest to Spread COVID-19 Disinformation on YouTube, Says Judge

U.S. District Judge Trina Thompson for Northern California in San Francisco denied Robert F. Kennedy Jr.’s application for a temporary restraining order and request for urgent discovery in his freedom of speech lawsuit against Google, said her signed order Wednesday (docket 3:23-cv-03880). Counsel for the parties appeared at a hearing on the application Monday.

Kennedy, a 2024 Democratic presidential candidate, applied for a TRO against Google the same day it filed the First Amendment lawsuit (see 2308030049), requesting an injunction preventing YouTube from enforcing its medical misinformation policies. Kennedy’s lawsuit against Google and other social media companies alleges “the extraordinary steps the United States government has taken under the leadership of Joe Biden to silence people it does not want Americans to hear,” including Kennedy's position on COVID-19 and other vaccines.

YouTube removed a video posted by Manchester Public Television in March in which Kennedy discussed his concerns about the merger of corporate and state power as related to the number of vaccines children take. Kennedy alleges YouTube removed on June 17 two other videos of him, including one in an interview with podcaster Jordan Peterson.

In the hearing, Kennedy’s counsel, Scott Street of JW Howard, couldn’t identify the dates when the interview with Peterson took place, when it was uploaded to YouTube and when it was taken down, Thompson said. Street said at the hearing: “The campaign is expected to heat up after Labor Day. That is why Mr. Kennedy is seeking preliminary injunctive relief now.”

Thompson, a President Joe Biden appointee, noted in her order that Kennedy’s TRO application “relies heavily on Missouri v. Biden – a case that is merely persuasive authority in this district.” But the California court is bound by O’Handley v. Weber “as the controlling authority for determining whether a social media platform has been rendered a state actor,” Thompson said. In O’Handley, the 9th Circuit U.S. Court of Appeals said Twitter exercised its own independent judgment in adopting its content moderation policies and enforcing them, she said. It also said the “private and state actors were generally aligned in their missions to limit the spread of misleading election information” and such alignment “does not transform private conduct into state action.”

Similarly, Thompson said, Kennedy didn't show the government “so ‘insinuated itself into a position of interdependence’ with Google or that it ‘exercised coercive power or has provided such significant encouragement’ to Google that give rise to state action.”

In support of the state action theory, Street produced emails between government officials and Google personnel from Missouri v. Biden concerning requests for information to YouTube about trends in vaccine misinformation, and YouTube seeking information related to science-backed responses to two medical misinformation claims, Thompson said. “In one email concerning vaccination hesitation, a White House official stated that '[t]his is a concern that is shared at the highest (and I mean highest) levels of the WH,'” she said. “However, this is insufficient to deem YouTube’s decisions to be deemed that of the State, yet alone part of a conspiracy to censor speech.”

There's no evidence before the court that any of the identified government officials, who aren't party to Kennedy’s Google case, demanded that Google adopt a COVID-19 vaccine misinformation policy, nor is there evidence that government officials communicated with Google about Kennedy at all, Thompson said. “Rather, the evidence reflects that the nature of the communications between officials from the White House, Office of the Surgeon General, and [Centers for Disease Control and Prevention] and Google is one of ‘consultation and information sharing,’” she said.

Kennedy implies the court should apply the “joint action test” as used in Rawson v. Recovery Innovations, Thompson said. The 9th circuit declined to extend the Rawson joint action test in O’Handley on grounds that there was not a “plausible inference of a similar degree of entwinement between Twitter’s actions and those of state officials,” she said. “There is less evidence of entwinement in the present case than there was in O’Handley.”

Kennedy hasn't shown YouTube “irreparably harmed” him because he doesn’t “demonstrate urgency or that his speech will be censored on other social media platforms,” Thompson said. Google asserts Kennedy isn’t entitled to a TRO because he waited five months from the first video takedown before seeking relief and his content is still available online via other channels; Thompson agreed.

Thompson said there’s a “strong public interest in protecting the community from an international public health crisis such as the COVID-19 pandemic,” which is the underlying or contributing cause of the deaths of 1.1 million Americans. “The coronavirus still poses a health risk to certain individuals, and it would not serve the public interest to let medical misinformation proliferate on YouTube.” The parties’ next court appearance is Nov. 7, at 2 p.m. PST, in-person, for the hearing on Kennedy's motion for preliminary injunction and defendants’ motion to dismiss.