by Michael Nevradakis, Ph.D., Childrens Health Defense:

Judge Daniel P. Collins argued that additional motions submitted by Children’s Health Defense supported allegations that Facebook’s parent company worked with the U.S. government to censor COVID-19 vaccine-related counternarratives and that the case deserved to be heard by the lower court.

A federal appeals court ruling late last week dismissing Children’s Health Defense’s (CHD) censorship lawsuit against Facebook included a dissenting opinion by a judge who said the courts should have considered additional evidence CHD submitted since it filed the suit in late 2020.

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In his dissenting opinion, 9th Circuit U.S. Court of Appeals Judge Daniel P. Collins argued that the additional motions CHD submitted supported allegations that Meta worked with the U.S. government to censor COVID-19 vaccine-related counternarratives and that the case deserved to be heard by the lower court.

Collins wrote:

“Under the unique circumstances of this case, I agree with CHD that we should take judicial notice of the existence of certain new, highly relevant documents that have only recently become available and that, like the materials submitted by CHD to the district court effectively reflect specific additional factual allegations that CHD proposes to plead if it is given leave to amend on a remand.”

Collins’ dissenting opinion also noted that “Meta’s interactions with the Government with respect to the suppression of specific categories of vaccine-related speech, and in particular the speech of CHD and its founder and chairman, Robert F. Kennedy, Jr., sufficed to implicate the First Amendment.”

According to Collins, government pressure on Meta was backed up by the plausible threat of action against the platform — namely, stripping Meta of the immunity shield it and other social media platforms enjoy under Section 230 of the Communications Decency Act.

CHD’s lawsuit — filed in August 2020 and amended in December 2020 — accused the Centers for Disease Control and Prevention (CDC) and other federal agencies of First Amendment violations — namely, colluding with Meta to censor vaccine-related content. CHD argued that the federal government engaged in “privatizing” the First Amendment by teaming up with Facebook to censor speech.

The District Court dismissed the lawsuit in June 2021, but CHD appealed to the 9th Circuit, where oral arguments took place in May 2022.

CHD subsequently submitted a series of motions to the 9th Circuit, many of which pertained to evidence obtained as part of the discovery process in Missouri et al. v. Biden et al. — now Murthy et al. v. Biden et al. — indicating similar First Amendment violations on the part of the U.S. government and collusion with social media platforms to censor content.

This evidence formed a substantial portion of Collins’ dissenting opinion. However, the majority ruled that CHD failed to prove “state action” influenced Meta’s decisions to censor content by CHD and Kennedy, CHD’s then-chairman and chief litigation counsel (now chairman on leave).

“CHD failed to meet the first requirement for state action because the source of CHD’s alleged harm was Meta’s own policy of censoring, not any provision of federal law. The evidence suggested that Meta had independent incentives to moderate content and exercised its own judgment in so doing,” the majority wrote in its ruling.

The majority opinion appears not to have considered the new motions CHD filed, referencing evidence from Murthy et al. v. Biden et al. and other legal cases, showing government interference or collusion with social media platforms like Meta to censor vaccine-related counternarratives.

CHD CEO Mary Holland told The Defender she was “pleased” that the decision was not unanimous. She said CHD is “considering our legal options” — including petitioning the U.S. Supreme Court to hear the case, potentially on the basis that CHD’s new evidence was excluded from the majority opinion.

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