Federal Judge: "Public Interest" Requires That Restrictions on "Medical Misinformation" Not Be Enjoined

So a court concludes in a case brought by presidential candidate Robert F. Kennedy, Jr.

In Kennedy v. Google, decided yesterday by Judge Trina Thompson (N.D. Cal.), plaintiff sued Google and YouTube claiming that they violated his First Amendment rights by removing videos in which he speaks about vaccines, and seeking a temporary restraining order:

On March 3, 2023, Kennedy spoke at Saint Anselm College's New Hampshire Institute of Politics. The speech centered around Kennedy's concerns about the merger of corporate and state power as related to the number of vaccines children take. He also spoke about his environmental and legal work fighting corporate polluters. On or about the same day, Manchester Public Television posted a video of the speech and YouTube removed it…. Plaintiff alleges that YouTube [also] removed … [the video] "RFK on Joe Rogan – Pfizer COVID Vaccine Trial." …

The court rejected Kennedy's First Amendment claim against Google, reasoning (correctly and unremarkably, I think) that Google isn't the government and thus isn't bound by the First Amendment, and any government interaction with Google urging it to remove certain speech about vaccines wasn't enough to make Google into a government actor.

But the court then went through the other preliminary injunction factors, and said the following (among other things):

Even if Plaintiff could establish that a Google was a state actor attributing its conduct to that of the governments, the rights guaranteed under the First Amendment are not unencumbered by any restrictions:

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Chaplinsky v. New Hampshire (1942). "The Ninth Circuit has consistently recognized the significant public interest in upholding First Amendment principles." However, there is also a strong public interest in protecting the community from an international public health crisis such as the COVID-19 pandemic…. 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.

That strikes me as remarkable. It suggests either that

1. "medical misinformation" is constitutionally unprotected, period (since the Chaplinsky quote is about speech that the Court saw as permissibly subject even to criminal punishment), or that
2. even if a speaker has a solid First Amendment argument—e.g., if the speaker is suing a city to prevent it from blocking his speech in the park, or suing the Postal Service to prevent it from blocking his mailings—a court could refuse to issue a preliminary injunction when it concludes the speech contains "medical misinformation" (or, presumably, is harmful in other ways).

I think both options would be mistaken. I discuss here the general prohibition on punishing false statements about science and medicine generally (setting aside particular situations such as fraudulent commercial advertising, or bad advice by a doctor to a patient). And if I'm right that the speech is constitutionally protected against governmental restriction, I don't think that the judge can still allow the restriction to continue for supposedly harmful (but constitutionally protected) speech when the restriction would have to be enjoined as to other speech.

Again, I think the bottom-line result was correct, because there's no First Amendment violation here by Google and YouTube: They are private entities, and there likely isn't sufficient entanglement between them and the government to make them government actors in this situation. But the court's reasoning, which is that the injunction should have been denied "Even if Plaintiff could establish that … Google was a state actor," strikes me as mistaken.

Here, by the way, is Google's and YouTube's explanation for the removal:

In March 2023, Google removed a video of Kennedy speaking at Saint Anselm College's New Hampshire Institute of Politics (NHIOP), in which he "recount[ed] his suspicions regarding the expanded regime of childhood vaccines he suggests are linked to increased cases of autism in children." And in June 2023, Google removed a video in which Kennedy discussed the "Pfizer COVID Vaccine Trial" with podcast host Joe Rogan that included "claims about COVID19 vaccinations that contradict[ed] expert consensus." In each instance, Google "reviewed [the] content carefully, and … confirmed that it violate[d] [Google's] … policy." Google continues to allow other speeches and appearances by Kennedy to remain on YouTube.

UPDATE: My coblogger Sam Bray has a somewhat different perspective on this:

Here are the three relevant principles:

1. Protect speech, because equity follows the law. (Cardozo said "equity follows the law, but neither slavishly nor always," but that's not the main form of the maxim.) That would suggest not considering harmfulness.
2. The judge dispensing equity wants to make sure he or she does not become an instrument of injustice. This includes consideration of the conduct of the parties. Let's vary the facts a little, and say that the speaker wants a preliminary injunction about a video taken down by a state actor, and the video is protected speech but also seriously misleading. A court could say I'm not going to give you an injunction, because I think you're coming into equity with unclean hands—you have your damage remedy, but to give you an injunction would make the court complicit in your unjust scheme, etc.
3. In late-modern injunction tests there is explicit consideration of the public interest, but that's usually mediated through legal forms: e.g., the First Amendment expresses the public interest. But one could always vary that (pressing national security case, etc.).

The way I would put all this together is that I wouldn't say the harmfulness of the speech should prohibit the injunction, but I might consider it for other aspects of the drafting (e.g., two-week delay before it goes into effect, scope). But if it could be shown that this was a matter of unclean hands for the plaintiff, then all bets are off and it's fine in equity to deny or limit the injunction, even if he has a constitutional right to have unclean hands.

Comments

[Rossami]

"Google isn't the government" - I concur that it's correct and unremarkable.

"any government interaction with Google urging it to remove certain speech ... wasn't enough to make Google into a government actor" - As an absolute statement, that is patently incorrect. But if that's a qualified statement specific to this case, then it is dependent on facts that should be decided by a jury, not something that the judge can simply assume or conclude at this stage of the case.

Finally, the "public interest" exception that this judge finds to the First Amendment is both remarkable and implausible. It creates an exception that will swallow the rule and is flagrantly wrong. And this judge doesn't even have the "it's an emergency" excuse. This is debate over a year after the crisis was ended.

[Noscitur a sociis]

“any government interaction with Google urging it to remove certain speech … wasn’t enough to make Google into a government actor” – As an absolute statement, that is patently incorrect.

Patently, you say!

But if that’s a qualified statement specific to this case, then it is dependent on facts that should be decided by a jury, not something that the judge can simply assume or conclude at this stage of the case.

So, you agree that the plaintiff shouldn't be able to get an injunction?

[Michael P]

State actor doctrine can be triggered purely by government speech, with no further actions, so yes: patently incorrect.

The standard for issuing a preliminary injunction is not whether there is a triable question of fact.

[Noscitur a sociis]

What has the government done to make Google (patently or otherwise) a government actor?

[Spinach Chin]

LOL

[David Nieporent]

But if that’s a qualified statement specific to this case, then it is dependent on facts that should be decided by a jury, not something that the judge can simply assume or conclude at this stage of the case.

Are you unclear on how TROs/preliminary injunctions work?

[SomeGuy 2]

It’s a fairly audacious lawsuit because bandwidth and hard drive space aren’t free. In other words, if RFK is correct, Google isn’t just required to allow his speech on YouTube; it’s required to pay to distribute it and all other takers. Which would have its own massive First Amendment issues. It’s worth discussing why he deserved to lose, but he definitely deserved to lose. This is coming awfully close to an argument bad enough for Rule 11.

[David Nieporent]

This is coming awfully close to an argument bad enough for Rule 11.

Particularly since RFK keeps litigating these sorts of issues over and over again against different social media companies, and (of course) losing.

[Abdul Abulbul Amir]

Phizer has the best PR by far. Biden's claim that gun manufacturers can't be sued is false on two counts. First gun makers have been and can be sued for defective product. Vaccine makers OTOH are free from liability to any and all adverse reactions.

[Nige]

Be weird if you could sue every time you had an adverse reaction to getting shot. No, wait, it could be awesome, actually.

[CommentMonkey]

It seems to me if you posed the basic facts and procedural posture of this case as a law school exam hypothetical, a student who answered that Chaplinsky supplies an alternative basis for denying the injunction would lose points. There are miles and miles between the kinds of speech Chaplinsky contemplates and "medical disinformation." It is depressing that a federal judge doesn't understand this.

I also don't understand Bray's point ("protect speech, because equity follows law"). If Google was a government actor, protect speech because the First Amendment IS law. If not, don't protect speech because the speaker has no right to force another private party to subsidize his speech. Why do you even need to get into all the equity stuff?

[loki13]

Google isn't a state actor.

That should have been the beginning ... and the end, of the analysis.

[David Welker]

Correct.

[Stephen Lathrop]

Why not add that Google is a publisher, with 1A press freedom to choose at pleasure what to publish, and what not to publish.

[Spinach Chin]

Let's be honest - of course Google is a state actor. Just as much as Twitter (was) and Facebook have been proven to be. No reasonable person can claim that there was not an element of coercion (sometimes blatant) to the government correspondence with these entities.

Are we to strain credulity to believe that Google somehow escaped this same influence? Come on... of course it happened. Just because we haven't seen the evidence yet doesn't mean it's not there.

Stop the gaslighting.

[Sarcastr0]

How many times did you say disagreeing with your take required lying? I count three.

How well does that tactic of solipsistic confidence work for you, usually?

[loki13]

Pro tip- any time someone begins a statement with, “Let’s be honest” you can be assured that falsehoods will follow.

Second observation- when a person doesn’t understand what “state actor” actually means, it usually self-evident.

Third observation- when a person doesn’t understand why this distinction is important, and why their rambling justifications to make private entities “state actors” would actually be VERY VERY bad, then you can safely ignore them.

Final observation- When people tell you that you need to mute them as they don’t add value to the conversation by saying that a banal and correct legal observation is “gaslighting,” believe them the first time they say it.

[David Nieporent]

Spinach Chin is a serial puppy rapist. Just because we haven’t seen the evidence yet doesn’t mean it’s not there.

[mydisplayname]

[I agree with the bottom-line result of the case... and I really like the way the referenced site does sidenotes!]

Alphabet products (Google/YouTube) exhibit an "inverse Iredell effect" -- the company's services give credence, potentially undue, to then-prevailing government notions. Give to the mistaken governing oligarchy of a republic the confidence of the people and the whole fabric crumbles into dust: the best head and the best heart cannot be proof against the influence of (well-intentioned, perhaps even science-ish) falsehoods selected and disseminated by the Google editorial staff, as men who are at a distance from the source of information must rely almost altogether on the accounts they receive from Google.

My point isn't that Alphabet should be required to disseminate positions which which it disagrees; instead, I'm suggesting that the public perception of Google/YouTube as generally-available utilities/common-carriers is dangerously inconsistent with the reality that Google/YouTube are publishers with editorial bias.

Permitting Google/YouTube to be perceived as an authoritative source (for anything, really) is dangerous. Consider, for example, a decision by Google to de-index or to place a warning on a video made by former CDC employees questioning the wisdom of live polio vaccines: the fact that YouTube has decided to hide such a video doesn't mean that the video does not exist, doesn't mean that the video is not available from other sources, and doesn't mean that the content is misleading, but _does_ mean that the content will be unknown and potentially unknowable to a large swath of the population who will undoubtedly regard the video as "lesser" due to the fact that it is missing from YouTube.

Our schools do not actively teach or advocate alternatives to Google/YouTube: primary sources, particularly ephemera, aren't as sexy as the magic G spots. Our government sometimes gives _exclusive_ rights to Google/YouTube, reinforcing the notion that it is an authoritative source.

[not guilty]

In the case of Robert F. Kennedy, Jr., it seems the nut did fall far away from the tree.

[hoppy025]

Google, Instagram, Facebook, Apple, and the like have such a monopoly on information these days that they should be considered company towns, analogous to Marsh v. Alabama.

Liberals shouldn't be allowed to control discourse because they and their bankster allies control bigtech.

[David Nieporent]

Google [1], Instagram [2], Facebook [3], Apple [4], and the like [5+] have such a monopoly

I'll take "Self-refuting arguments" for $1,000, Alex.

[vaadu]

Who gets to decide what 'medical misinformation' is?

[Ed Grinberg]

Probably the same people who get to decide what "hate speech" is.

[AtR]

From what we've seen so far (e.g., Missouri v. Biden, Berenson v. Biden), Google's entanglement with the government may very well be quite substantial.

This kind of decision, if allowed to stay, would open up a huge loophole in 1A protections.

[Spinach Chin]

I think it's safe to assume its level of entanglement is at least as much, if not more.

These gaslighting simpletons in the comments want you to believe that because we haven't seen the evidence (yet), it doesn't exist.

[Stephen Lathrop]

No, it won't open any hole in 1A protections. Given that this was a case against Google, not the government, the only 1A protection at stake was Google's 1A protected liberty to publish or not publish at pleasure. That was correctly decided in Google's favor.

Note that I get that internet utopians will insist the contrary, while mistakenly supposing private publishers owe them unedited, unrestricted, world-wide publishing power for free.

[AtR]

So in your world there is no state agency? The government can pressure any private entity to circumvent 1A, 4A, or any amendment with impunity? What is the point of having these amendments at all then?

[loki13]

There's, you know ... law on this and stuff.

First, it's not state agency. It's state ACTOR. This is an important distinction. You don't have a first amendment right against private actors. You might have a statutory right. But not a constitutional one. Again, just because something is "really really bad" doesn't make it unconstitutional.

Now, like anything in the law, there are a few exceptions. The most notable one is the "company town" (Marsh, 1946). But since then, the exceptions (other than a blip, since down away with, for shopping malls) are few and far between. Basically, you have to argue that a private entity is operating with powers that are exclusively and traditionally held by the government, or that there is a sufficiently close relationship to the government ... but that's not what you think it means. It's more that there is such extensive government regulation and such a close relationship between the state and the regulated entity that any action is effectively the action of the state.

Which is not occurring here, despite what you think. See, e.g., Manhattan Community Access Corp. v. Halleck (2019).

Put another way, if you think the government is doing something bad, you're better off challenging the government's alleged actions, not the private entity, under a constitutional theory. If you want to go after the private entity, look to other law.

[AtR]

Thanks for the cogent explanation of the law.

My understanding of the law is, indeed, limited ... but I know that the judicial system has historically been happy to stretch the boundaries of the law in deference to "public interest". The current scenario, as you describe it, disincentivizes any private company from fighting hidden government overreach ... clearly, that is not good for the public.

[loki13]

Every issue is fact dependent. But the correct solution is either-

1. Google sues the government if, indeed, Google feels coerced.

2. Individuals sue Google under a statute or other cause of action (not constitutional) if Google is infringing on their rights.

In the alternative, while it seems unlikely now, you can always put information on places other than google. And to the extent people don't like google for (reasons), then the market will punish them. But the solution is not to let people entrench these private entities into a favored status under the law.

Moreover, what we really don't want is the blurring of the state action doctrine.

[Stephen Lathrop]

AtR, this is a simple distinction, but you are confused about it anyway. Here is all there is to it: If government coerces Goggle to the point that Google is deprived of its liberty to publish, then Google can sue the government. If you are similarly convinced that something about that has deprived you of your rights, you too can sue the government. But you can't sue Google, because they did nothing to deprive you of your rights.

[AtR]

Stephen Lathrop ...can you state a single legal theory that is clear, concise, and consistently interpreted? I doubt it - that is why the answer to every legal question is "it depends".

[David Welker]

I am not sure why the court went out of its way to write this controversial dicta. Google isn’t a government actor should have been the end of the analysis.

[tkamenick]

Very common for lower courts to include alternate analyses supporting their decision. That way, if it's appealed, and the appellate court disagrees on the state actor question, it can turn to the balancing question and say "we uphold on these grounds" rather than saying "we remand for the lower court to engage in the rest of the analysis."

[Rev. Arthur L. Kirkland]

Surveying the legal issues concerning expression from presidential candidates, this blog chose to address . . . this one.

Carry on, clingers.

#Cowardice
#PartisanHackery

[Spinach Chin]

You know, hashtags don't work here, Dad

[M L]

Some months ago I ran some searches for RFK information and it was surprising just how much Google was manipulating and suppressing the results.

Google used to be a great tool that would just search the internet. It is astounding how much it has changed in the last 6 years or so. Blacklisted terms abound. Blacklisted sources/domains abound. It will just flat out ignore/refuse certain search functions, like quotes, when it wants to. All in all the ideological/political bias is staggering, compared to what the product was a short time ago.

[Stephen Lathrop]

Surprised that no one has commented on how EV muddled the argument when he took up the decision's hypothetical. Even if the government did wrongly assert a power to prevent publication of medical misinformation, that would not be basis for an injunction against Google. It would be a basis for some kind of action against the government.

As a private publisher protected by 1A press freedom, Google is at liberty to cave to government pressure, including illegitimate government pressure, for whatever reason it wants. Google is under no legal obligation to stand up to government attempts to control content, or even to impose outright censorship.

[tkamenick]

"But if it could be shown that this was a matter of unclean hands for the plaintiff, then all bets are off and it's fine in equity to deny or limit the injunction, even if he has a constitutional right to have unclean hands."

This is literally "I don't like how you are exercising your constitutional rights, so I can stop you from exercising them." Terrible.

[David Nieporent]

The first sentences of Sections I and II of the opinion suggest the judge should've spent less time on its bizarre digression on medical misinformation, and more time on proofreading.