SAN FRANCISCO (CN) — An attorney for independent presidential candidate Robert F. Kennedy Jr. argued before a Ninth Circuit Court of Appeals panel Tuesday morning that a federal judge should have granted a preliminary injunction Kennedy requested against Google over the removal of some of the candidate's videos.
Kennedy sued Google in San Francisco federal court in August 2023, claiming that YouTube, which is owned by Google, violated his First Amendment rights by removing two videos in which Kennedy questioned the efficacy of the Covid-19 vaccine and pandemic-era lockdowns. He claims YouTube took the videos down at the request of the Biden administration and sought an order barring YouTube from removing his videos as long as he remains in the presidential race.
U.S. District Judge Trina Thomson denied Kennedy’s request, finding he was unlikely to succeed because Google is a private entity, and that even if it wasn’t, inaccurate speech about medical issues is not protected speech. Kennedy appealed the ruling.
On Tuesday morning, Scott Street, Kennedy’s attorney, told a Ninth Circuit panel that Kennedy was seeking “limited” relief that would last only through the November presidential election.
“This is an injunction that would promote speech, promote speech in a forum that is freely accessible to millions, in fact, billions of people worldwide, a place where many Americans go to debate the issues of the day to learn about the issues that they're going to vote upon,” Street said.
U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, was skeptical and said no case has ever proven that YouTube or any other social media platform was acting as an arm of the government.
“Let's face it, the platforms’ views might be aligned with the presidential administration,” she said.
U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, was more blunt, saying that he found Street’s argument “weak.” He noted Google’s policies to remove medical misinformation predated Kennedy’s videos by months, so it was a stretch to say the policies were specifically aimed at Kennedy.
“Explain to me what evidence you rely on in support of the notion that Google has been converted into this arm of the state in order to censor Mr. Kennedy,” Sanchez asked Street.
Street replied, “They were specifically identifying Mr. Kennedy as someone whose speech needed to be removed, curtailed on these platforms."
When Sanchez asked for proof, Street said that he had a partnership email between White House official Robert Flaherty and Google where Flaherty discussed the White House’s desire to remove viewpoints like Kennedy’s from YouTube. He also said he had statements from President Joe Biden and other administration officials.
“The surgeon general and the White House were specifically identifying Mr. Kennedy as somebody who they wanted to see the tech platforms remove speech of,” Street said.
Sanchez said it is not illegal for platforms to work hand-in-hand with the government on messaging if their interests align, and that a claim can only be raised if a platform loses its own agency.
“Google is not allowed to rely on government expertise to determine the accuracy of its videos?” Sanchez asked.
Street answered, “I would say that if Google is making a truly independent decision that certain information is dangerous, then yes, it could do that. But there's no evidence of that here."
Callahan asked Google attorney Ginger Anders how the court could possibly determine if a private entity like Google was acting on its own volition or was coerced.
Anders said there has to be a blatant, coercive element showing that Google made a decision based on the government’s position.
“I don’t think the evidence here comes anywhere close,” Anders said.
She said that Google has a First Amendment right to remove speech it doesn’t want to promote, and that there was no evidence that the government was communicating with Google to block Kennedy’s videos. She said hundreds of Kennedy’s videos remain on the platform, and only four were taken down for breaking the rules about medical misinformation.
“I think that establishes that Kennedy can't show irreparable harm and that the balance of equities heavily favors Google here,” Anders said.
The appeal is the latest legal action Kennedy has taken against a tech platform. He sued Meta on Monday, claiming the social media giant censored one of his campaign videos.
The panel took the matter under submission but did not say when it would rule.
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