RFK Jr.'s YouTube Censorship Claim Short on Factual Assertions: Motion to Dismiss

Robert F. Kennedy Jr.’s First Amendment claim against YouTube “stumbles out of the gate,” said parent company Google in its motion to dismiss with prejudice (docket 3:23-cv-03880) in U.S. District Court for Northern California in San Francisco. Google seeks a Nov. 7 hearing on the motion.

Plaintiff Kennedy, a 2024 Democratic presidential candidate, seeks to hold Google, a private entity, liable as a “state actor” under the First Amendment for “exercising its discretion to remove videos conveying COVID-19 and vaccine misinformation from its video-sharing platform,” said the motion. The court already recognized Kennedy’s First Amendment claim is “unlikely to succeed on the merits,” said the motion, citing U.S. District Judge Trina Thompson’s order denying Kennedy’s August application for a temporary restraining order (TRO) to prevent YouTube from removing Kennedy’s videos (see 2308240039).

An “unbroken string of federal decisions” from the 9th Circuit U.S. Circuit Court of Appeals and the Northern California district court dismissed complaints similar to Kennedy’s for failure to state a plausible claim premised on the state action doctrine, said the motion, citing Consent Action Network v. YouTube and O’Handley v. Weber, among others. Google “is not the government,” said the motion: The “First Amendment prohibits the government -- not a private party -- from abridging speech.”

Kennedy’s complaint pushes a “vague and implausible theory that the federal government secretly inserted itself into Google’s content moderation decisions, thereby transforming Google’s removal of certain videos featuring Kennedy into unconstitutional ‘state action,’” it said. As the court held in denying Kennedy’s application for a TRO, the plaintiff didn't make a “colorable claim” his freedom of speech rights had been infringed by a state actor, the motion said. “The complaint’s allegations, which are even more ill-defined and conclusory than the record submitted with the TRO, fare no better and fail to state a viable First Amendment claim,” Google said.

Kennedy’s complaint describes conduct by federal agencies and employees, the motion said: “It contains no allegations regarding state entities, state actors, or state law.” Such claims aren’t cognizable under Section 1983 of the Civil Rights Act, it said. The complaint fails to allege any facts that could form the basis of a state action claim, said the motion, calling it “long on insinuation and innuendo and remarkably short on concrete factual assertions.”

Kennedy alleges the federal government interacted with a different internet platform over two years ago concerning his posts on that platform, but his complaint is devoid of allegations identifying any specific interactions between Google and the federal government, “much less any interactions between Google and the government that concerned posts about Kennedy,” the motion said. Even if he had pleaded specific facts showing government interaction with Google about his YouTube videos, the 9th Circuit has held that “mutual information sharing and cooperation between private parties and the government does not transform private parties’ content moderation decisions into state action,” Google said.

The relief Kennedy seeks is “independently barred” because it would violate Google’s First Amendment rights by telling the company “what content-moderation policies to adopt and how to enforce those policies,” Google said, citing O’Handley v. Padilla. “Far from dictating what content Google must permit on YouTube, the First Amendment protects Google’s independent judgment that it will not help spread dangerous medical and vaccine misinformation,” the motion said. It “would not serve the public interest to let medical misinformation proliferate on YouTube," said Google, citing Thompson’s TRO.