Google Turned Free Exchange of Ideas 'on Its Head,' Says RFK Jr.

Social media companies, such as Google, have turned the free exchange of ideas “on its head,” said independent 2024 presidential candidate Robert F. Kennedy Jr. in a Friday reply brief (docket 3:23-cv-03880) in support of his motion for a preliminary injunction against Google to prevent it from removing his videos from YouTube. Kennedy is suing Google in a free speech suit after YouTube removed anti-vaccine videos of Kennedy’s that violated its medical misinformation policy.

Tech companies lobbied for Section 230 of the Communications Decency Act of 1996, which gave them “significant legal protection in exchange for creating an environment that would promote the free exchange of ideas while preserving their ability to restrict access to violate and harassing content,” Kennedy said. “Now they argue that they can prevent the free exchange of ideas on publicly accessible websites like YouTube, free of judicial review, even when the people they censor are government critics like Kennedy and when Google censors those people, and their messages, because the government demands it.”

In its opposition brief (see 2310110027), Google didn’t show otherwise, instead making “the same conclusory arguments it has made throughout this case,” Kennedy said. Google doesn’t believe it “can ever be held to constitutional scrutiny” and that it's a “publisher, with all the First Amendment rights that publishers have, but none of the responsibilities.” Google had argued it removed only those videos of Kennedy’s that conveyed "dangerous COVID-19 and vaccine misinformation” against its medical misinformation policy. Kennedy responded Friday: “Nobody believes that Google endorses the speech that appears in the millions of videos posted to YouTube. And the fact that it does not remove all videos of Kennedy’s speech shows just how arbitrary its misinformation policy is,” said the reply. “If anything, that exacerbates the constitutional problem.”

Kennedy, who filed an amicus brief in opposition to government applicants’ emergency application for a stay of a preliminary injunction in the Missouri v. Biden free speech case before the U.S. Supreme Court, cited the recent U.S. 5th Circuit Court of Appeals ruling in that case. “This public/private censorship project, which accelerated during the COVID-19 pandemic, and which reached new heights after Joe Biden took office, violates the First Amendment,” Kennedy said in the Friday reply brief, and the ruling “was correct.” That ruling was consistent with the 9th Circuit’s opinion in O’Handley v. Weber, which acknowledged a “constitutional problem would arise if Twitter had agreed to serve as an arm of the government, thereby fulfilling the State’s censorship goals.”

It’s “time to recognize that the publicly accessible parts of YouTube are public forums and that Google engages in a public function when it works with the government to control the messages people hear in that forum,” Kennedy said. “Under those circumstances, Google’s actions are fairly attributable to the government and justify the preliminary injunction” Kennedy seeks, it said.

In his Wednesday opposition to Google’s motion to dismiss the first amended complaint, Kennedy said Google “did not have a vaccine misinformation policy for YouTube” on April 22, 2021, but it began developing the policy “it used to censor Kennedy, in response to the White House’s demands for it.” Between May and September 2021, Google executives met “numerous times” with government officials from the Centers for Disease Control and Prevention and the Office of the Surgeon General to discuss the executive branch’s “demand for more vaccine-related censorship,” said the opposition.

The executive branch “was getting impatient,” Kennedy said, saying Biden campaigned on a promise to eliminate COVID-19, and by July a new variant was spreading. “The president needed somebody to blame,” said Kennedy, who switched his political affiliation last week from Democrat to independent for his White House run against Biden.

Biden said the pandemic was “among the unvaccinated,” in a July 16 speech, said Kennedy, and “soon government officials were referring to COVID-19 as a ‘pandemic of the unvaccinated.'” In the same speech, Biden said tech companies like Google were “killing people" by not removing vaccine-critical speech from their platforms, Kennedy said. Biden said “Facebook isn’t killing people,” but 12 people were “out there giving misinformation” and Kennedy is part of that group, he said. Around the same time, the surgeon general urged tech companies to “aggressively remove criticism of the government’s pro-vaccine message from their platforms,” Kennedy said.

Biden’s comments “revealed a plan to punish tech companies like Google if they did not go along with the Biden Administration’s censorship goals,” Kennedy said. He referenced ‘threatening statements” by executive branch officials about tech companies’ responsibility to censor dissenting public health viewpoints, “and the consequences if they did not do so -- namely that the White House would push to eliminate the companies’ section 230 immunity and bring more enforcement actions against them.” Soon after, CNN reported the White House was reviewing whether social media platforms should be held legally accountable for publishing misinformation via Section 230, “a law that protects companies’ ability to moderate content,” he said.

The misinformation policy that Google used to remove Kennedy’s speech on vaccines relies entirely on the government to decide which speech is false, misleading or dangerous, and thus, subject to removal, said Kennedy. The policy changes only when the government sources change their guidance about certain issues, he said. “According to the misinformation policy, if public health authorities said birds can talk but can’t fly, a person would be prohibited from posting a video that says otherwise on YouTube -- at least until the government decides otherwise,” Kennedy said.

Kennedy cited other pending cases involving alleged government censorship of “misinformation,” most notably Murthy v. Missouri before the U.S. Supreme Court. Surgeon General Vivek Murthy seeks a stay of the U.S. District Court for Western Louisiana’s decision barring dozens of Biden administration officials from coercing or significantly encouraging the social media platforms to moderate their content. Kennedy said Missouri v. Biden was the first case to order discovery into the public/private campaign to remove alleged “misinformation” from technology platforms like YouTube.

Kennedy's first amended complaint alleges Google’s use of the government-dependent misinformation policy chills speech about Kennedy’s campaign, said the candidate, saying that “chilling effect provides a sufficient basis to state a First Amendment claim.” Google’s argument that Kennedy can’t plead a First Amendment claim because it has its own constitutional rights to censor people on YouTube fails because “Google is not a publisher,” Kennedy said. Under Section 230, it can’t be held liable for the content its users publish, said the opposition.

Also, Kennedy said, Google doesn’t engage in “expressive activity” when people post videos on YouTube. “Unlike newspapers,” internet platforms like YouTube “exercise virtually no editorial control or judgment,” he said, citing NetChoice vs. Paxton. “They use ‘algorithms' to screen out certain obscene and spam-related content,” with “virtually everything else” posted on the platform with “zero editorial control or judgment.” That’s why SCOTUS called the internet the “modern public square," he said.

Kennedy concurrently filed Thursday an opposition to Google’s request for judicial notice of earlier versions of YouTube’s content moderation policies. Without citing a statute, Google contended the court can take notice of archived web pages because they're publicly accessible, Kennedy noted. That’s “wrong,” he said. Under Rule 201 of the Federal Rules of Evidence, the court can take judicial notice of public records and government documents available from reliable sources on the internet, such as government agency websites, it said, but the rule “does not extend to private corporate websites” such as those owned by Google. “Private corporate websites, particularly when describing their own business, are a source whose accuracy is reasonably questioned.”