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.

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.

Liability shield for social media platforms ‘a government-granted privilege’

Collins’ dissent noted that while it is not standard practice for a plaintiff to submit new documents to an appeals court, this case was different. He said:

“CHD does not purport to add wholly new legal theories or claims, but rather only additional factual allegations in support of its existing claims.

“Moreover, its newly suggested amendments are limited to factual allegations based on documents that were concededly unavailable to CHD at the time of the district court proceedings and that have only become subsequently available through compulsory processes employed in other litigation or in legislative investigations or through Freedom of Information Act requests.”

According to the dissent, this evidence was important for the court to consider, in light of the significant constitutional questions at hand in this case.

Collins wrote:

“In my view, given the weighty First Amendment interests at stake in this case and the considerable difficulties inherent in attempting to uncover facts concerning alleged behind-the-scenes interactions between Meta and Government personnel, we should exercise our discretion in favor of considering the significance of the additional allegations CHD could make in light of these newly available documents.”

Much of Collins’ dissent focused on the legal immunity that Section 230 affords social media platforms for hosting, moderating and removing most types of user content.

For Collins, conferring such immunity on platforms like Meta amounts to a “vast practical power that Meta exercises over the speech of millions of others [that] ultimately rests on a government-granted privilege to which Meta is not constitutionally entitled.”

“Meta’s truly gargantuan platforms simply could not exist in anything resembling their current form without the legal immunity that the Federal Government has afforded to internet platforms under [Section] 230,” Collins wrote, noting that social media platforms like Meta are distinct from traditional “publishers” due to their massive size.

Collins wrote:

“[Section] 230 confers a statutory immunity without which Meta could not practicably operate gigantic platforms such as Facebook and Instagram. The potential liability for defamatory content alone — not to mention other theories of platform host liability — would be so crushing as to preclude the operation of these platforms in anything resembling their current form.

“And, importantly, the immunity granted by [Section] 230 is purely an act of congressional grace, because Meta has no plausible claim to a constitutional entitlement to full immunity for publishing or distributing constitutionally unprotected defamatory content.”

Section 230 of the 1996 Communications Decency Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

It shields companies like Facebook and other social media platforms that may host trillions of messages from being sued by anyone who claims to be wronged by someone else’s post, whether or not the complaint is legitimate.

Without government-conferred Section 230 immunity, social media platforms like Facebook would likely not exist in their current form, Collins wrote, noting that these legal protections enable “the very ability of Meta to exercise such unrestrained power to censor the speech of so many tens of millions of other people.”

According to Collins, “It is, by its very design, an immunity created precisely to give its beneficiaries the practical ability to censor the speech of large numbers of other persons. … Whenever Meta selectively censors the speech of third parties on its massive platforms, it is quite literally exercising a government-conferred special power over the speech of millions of others.”

This government-conferred power distinguishes CHD’s “state action” lawsuit from other similar cases, Collins argued:

“This key fact … that Meta is effectively exercising a distinctive government-conferred power over others’ speech when it decides whether and how to censor third-party speech on its vast platforms — makes a crucial difference in the state-action analysis. …

“Meta’s alleged interactions with the Government here are sufficient to implicate the First Amendment rights of CHD and those it represents, including Kennedy.”

Federal government enjoyed ‘direct benefit’ from Meta censorship

Collins also questioned whether the federal government had a “governmental interest in, and direct benefit from, specific exercises” of its power over Meta.

For Collins, the evidence CHD submitted, including new findings from the discovery process and Freedom of Information Act documents in other legal cases, was enough to show that the government “plainly” crossed this threshold in three distinct ways, and “strongly confirm[s] the Government’s interest in, and benefit from, many of the particular challenged exercises of that power.”

Collins referred to “targeted requests” made by “high-level Government officials … both publicly and privately, for Meta to take action specifically against the speech of CHD and Kennedy.”

Collins cited a private email sent by Rob Flaherty, former White House director of digital strategy, in which Flaherty “pointedly complained that Meta was not doing enough to ‘stop[] the disinfo dozen,’ which was a clear reference to CHD and Kennedy.”

“The disinfo dozen” refers to “The Disinformation Dozen,” a list of people who opposed the government’s COVID-19 narrative and vaccine-related policies. Internal White House communications revealed that the White House used this list, developed by the Center for Countering Digital Hate, to target organizations and individuals like CHD and Kennedy.

According to Collins’ dissent, the allegations CHD submitted also showed that “Meta worked extensively with Executive Branch officials to adjust and refine its criteria and practices with respect to limiting or suppressing vaccine-related speech.”

“These were not simply informational exchanges in which Meta passed along its internal criteria for addressing such speech,” Collins wrote. “Rather, Meta engaged in a dialogue with Executive Branch officials to develop and ‘begin enforcing’ new policies with respect to Covid-vaccine-related speech.”

Collins said the government was “hardly a passive participant in these discussions.”

A third example Collins cited in CHD’s favor was the finding that “Meta went so far as to create an actual portal in which pre-selected Government officials could log in and then submit targeted requests for specific Covid-vaccine-related posts to be taken down” — a system that “extended to truthful speech” that discouraged vaccination.

Actions by Meta, federal government ‘implicate’ the First Amendment

According to Collins, the federal government and Biden administration backed up these actions with coercive threats toward Meta. He wrote:

“It is also important to note that all of these actions took place against a backdrop of continuous legislative threats, at multiple levels, to limit or abolish the [Section] 230 immunity upon which Meta’s very ability to operate its mega-platforms critically depends.

“These included congressional hearings in both houses, at which Zuckerberg and other social media CEOs were called to testify, as well as statements from high-ranking officials including the House Speaker and relevant committee chairs in both houses.”

Examples Collins cited included congressional hearings in both houses, at which Zuckerberg and other social media CEOs were called to testify, and statements threatening to strip Meta of Section 230 immunity.

“Taking these considerations together, the government ‘made plain’ its ‘strong preference’ for particular exercises of Meta’s [Section] 230-immunized power over third-party speech on its mega-platforms,” Collins wrote.

This “strong preference” directly affected Meta’s decision-making, according to Collins, who wrote:

“With awareness of that focused interest, and of the benefits that the Government hoped to obtain if such speech were suppressed, Meta then affirmatively worked with the Government to refine Meta’s policies and practices concerning such speech in a way that would be satisfactory to the Government, and it repeatedly touted to the Government its specific actions directly targeted against CHD and Kennedy.”

As a result, Collins wrote 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 Kennedy, ‘suffice to implicate the [First] Amendment.’”

Collins suggested that CHD could amend its complaint on this basis.

The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy, who is on leave from CHD and is running as an independent for president of the U.S.