RFK Jr.'s Claim That YouTube Engaged in State Action Is Barred by Section 230: Google

In his freedom of speech suit, Kennedy attempts to hold Google, a “private entity,” liable as a state actor for “exercising its discretion to remove videos conveying COVID-19 and vaccine misinformation” from its YouTube platform, Google said. After failing to convince the court of the likelihood of success on claims in the original complaint, "the first amended complaint proceeds under the state action doctrine of the First Amendment" and the free speech clause of the California constitution. "Neither passes muster,” said the motion, citing an “unbroken string of federal decisions from the 9th Circuit” and decisions by courts in the district that have dismissed complaints similar to Kennedy’s.

If the court reaches Kennedy’s free speech claim under the California constitution, “and it need not if it dismisses the federal First Amendment claim,” then the plaintiff faces two “insurmountable hurdles,” the motion said. The state law claim is preempted by Section 230 of the Communications Decency Act because “it seeks to hold Google liable for decisions protected by the statute: whether to remove or decline to publish certain content,” it said, citing Prager University v. Google. Also, the claim fails because courts have repeatedly rejected “such a dramatic expansion of California’s constitutional free speech clause, holding that private companies (including Google) do not become public fora subject to the free speech clause by hosting an Internet forum,” it said, citing Divino Group v. Google.

Both of Kennedy’s claims are independently barred because the relief he seeks violates Google’s First Amendment rights by telling the company “what content-moderation policies to adopt and how to enforce those policies,” said the motion, citing O’Handley v. Padilla.

The court already recognized that Kennedy’s First Amendment claim “is unlikely to succeed on the merits,” said Google, referencing comments by U.S. District Judge Trina Thompson in August (see 2309140030) denying Kennedy’s motion for a temporary restraining order against Google to prevent it from enforcing its medical misinformation policies. YouTube removed a video posted by Manchester Public Television in March in which Kennedy, a 2024 Democratic presidential candidate, 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.

Thompson said then there’s a “strong public interest in protecting the community from an international public health crisis such as the COVID-19 pandemic,” which is the underlying or contributing cause of the deaths of 1.1 million Americans. “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.”