RFK Jr.'s State Action Allegations in Amended Complaint Fail, Says Google

Robert F. Kennedy Jr.’s attempts to “resuscitate” his First Amendment case against Google by “deflecting" O’Handley v. Weber, and "relying heavily on an out-of-circuit decision” in Missouri v. Biden, “fall well short" of establishing that Kennedy's is "one of the exceptional cases in which a private entity will be treated as a state actor for constitutional purposes,’” said Google’s reply (docket 3:23-cv-03880) Tuesday in support of its motion to dismiss Kennedy’s first amended complaint (FAC) in U.S. District Court for Northern California in San Francisco. Kennedy, an independent 2024 presidential candidate, sued Google in July (see 2308030049), alleging it censored his viewpoints on vaccines and other subjects under pressure from the Biden administration. Kennedy’s state action allegations in the FAC are based on the same essential allegations and documents submitted with the temporary restraining order (TRO), “which fail to state a plausible state action claim” under the U.S. 9th Circuit Court of Appeals’ binding case law in O’Handley v. Weber, Google said. Kennedy’s plea for discovery “is an admission that his allegations are deficient,” said Google. It cited Rutman Wine v. E. & J. Gallo Winery, in which the court said the purpose of Rule 12(b)(6) is to “enable defendants to challenge the legal sufficiency of complaints without subjecting themselves to discovery.” The court should not judge Kennedy’s “defective allegations by a relaxed standard simply because, in Kennedy’s view, the state action doctrine is a ‘fact intensive inquiry,’” said the reply. Courts “regularly and consistently dismiss similar claims asserting ‘state action’ on the pleadings and as a matter of law without permitting any discovery,” it said. Also, the reply said, the “significant amount of company correspondence and deposition transcripts Kennedy already has obtained from discovery in Missouri v. Biden—far exceeding what plaintiffs typically obtain prior to a motion to dismiss—belies Kennedy’s claim that further discovery in this case is likely to prove fruitful for him,” said the reply. The court reviewed those materials in ruling on Kennedy’s TRO application and “concluded they reflected little more than ‘consultation and information sharing’ between federal officials and Google and could not establish state action,” it said. Kennedy’s suggestion that there might be “yet additional documents beyond the many innocuous communications produced in Missouri is wishful thinking,” it said. Kennedy has given “no credible argument for avoiding section 230 immunity,” said the reply, saying, “well-established law makes it clear that Section 230 applies to claims like this one seeking to hold Google liable for its decision to remove certain content from its platform.” The court should grant Google’s motion to dismiss with prejudice, it said.