RFK Jr. Injunction Would Trample Our First Amendment Rights, Says Google

Robert F. Kennedy Jr.’s “latest bid to dictate the content moderation policies of a private entity" seeks the "remarkable relief" of preliminarily enjoining Google from exercising its discretion to remove videos conveying "dangerous COVID-19 and vaccine misinformation” on its YouTube platform, said Google’s opposition Monday (docket 3:23-cv-03880) in U.S. District Court for Northern California in San Francisco to Kennedy’s Sept. 25 motion for an injunction.

Kennedy, a 2024 candidate who switched Monday from vying for the Democratic presidential nomination to mounting an independent third-party bid, offered “’no evidence’ of state action and has not made a ‘colorable claim’” that his First Amendment rights have been infringed by a state actor, said Google. Kennedy’s motion for a temporary restraining order against Google sought to prevent the company from enforcing its medical misinformation policies.

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

U.S. District Judge Trina Thompson’s August order denying Kennedy's application for a temporary restraining order (TRO) against Google (see 2308240039) “forecloses Kennedy’s request for preliminary injunctive relief,” said Google. Kennedy’s motion for an injunction relies “almost entirely on evidence already before the court” when it denied the TRO, and a “handful of new documents” don’t identify a single new communication between Google and the government, Google asserted.

The plaintiff continues to “fall well short of establishing that ‘this is one of the exceptional cases in which a private entity will be treated as a state actor for constitutional purposes,’” Google said, citing O’Handley v. Weber, in which the 9th Circuit U.S. Court of Appeals ruled Twitter wasn't a state actor. O’Handley and an “unbroken string of federal decisions from this District have dismissed a half dozen complaints just like Kennedy’s for failure to plausibly plead state action," said the defendant.

Even Kennedy agrees, Google said. Before the 9th Circuit, Kennedy “acknowledged that bringing this motion for a preliminary injunction would be ‘futile,’ given this Court’s prior ruling that ‘O’Handley is controlling here and that it precludes relief in a case like this,’” said Google.

Documents attached to Kennedy’s preliminary injunction motion show that in 2021 -- “many months after Google began actively enforcing its COVID-19 misinformation policies, and years before Kennedy’s content was removed from YouTube” -- Google employees met with executive branch officials, plus representatives of the Centers for Disease Control and Prevention and the office of the surgeon general, to discuss the proliferation of misinformation about COVID-19, Google said. Those meetings primarily involved information on Google’s ongoing efforts to combat COVID 19-related medical misinformation on YouTube, it said. White House official Rob Flaherty “made clear that the government was not recommending -- let alone requesting or requiring -- that Google remove any content,” said the defendant.

Kennedy documents referenced a White House spokesperson who noted the Biden administration was reviewing potential changes to the immunity conferred on social media platforms by Section 230 of the Communications Decency Act and President Joe Biden’s comments that COVID-19 misinformation on Facebook was “killing people.” Biden then “clarified that he was not ‘trying to hold [platforms] accountable,’” said the opposition. “Kennedy points to no evidence linking any of these statements to the Administration’s communications with Google regarding efforts to combat misinformation," said the defendant.

Kennedy’s proposed order for an injunction enjoining Google from enforcing its own content moderation policy for vaccines “would trample on Google’s First Amendment rights and erode its users’ trust in YouTube by forcing it to carry content that it believes to be harmful,” said the opposition. Kennedy faces no “irreparable harm,” Google said, saying he remains free to speak in any forum or platform that chooses to host his content, and that includes other Kennedy videos on YouTube. Referencing Thompson’s August order, Google said an injunction “would be contrary to the public interest in promoting public health.”

Kennedy shouldn’t be “granted a license to go on a fishing expedition in the form of vague and open-ended discovery,” which the court “already rejected in denying his TRO, on his facially deficient claims,” Google said.