This morning, August 18, 2020, Bobby Kennedy/CHD filed a federal lawsuit against Facebook and its outside fact-checkers on a variety of grounds, including First and Fifth Amendment violations, RICO and a claim under the Lanham Act. The heart of the case seems to be that Facebook is restricting his organization’s right and ability to present published scientific studies which show that picture of vaccine safety put out by the CDC and the WHO is false and that Facebook has deep and basically undisclosed ties to Pharma and is acting as Pharma’s shill to sell known unsafe and dangerous products. The main financial conduit is through advertising revenues which Pharma pays to Facebook. Of course, the same could be said about most TV media, and it not widely appreciated that the US is only one of two developed nations that permit direct-to-consumer advertising.
Here is a link to the CHD website page about the lawsuit.
There is a link to a downloadable pdf of the complaint.
My one-word description of it I guess would be “WOW.” It is 95 pages and has a table of contents (well deserved) and a table of authorities, which is something you don’t see every day, and says to me that they are going straight at these guys, hard and are not hiding the ball and that they are letting world know that they think they have legal authority on their side.
The core issue in the case is complicated, nuanced, multidimensional, and involves important issues involving the balancing of differing and sometimes opposing constitutional rights, as well as some novel issues involving statutes and in particular the federal communication act’s protection of internet service providers. Basically, republishers are immune from lawsuits, but entities that post content are not. The main fact/legal issue will be whether by posting advisories and referring readers of CHD content to the CDC for accurate information about vaccines, does Facebook transform itself into a content provider which is not immune from suit under the communications act?
This may sound familiar to some because the argument has one big proponent: President Donald Trump. That is the argument he was making against Twitter when it put an advisory about a few of his tweets or even removed one (or a few, I don’t recall which). But since he runs the government, he can do other things than sue, like trying to remove federal immunity from providers who think they can censor him and get away with it.But if you’re anyone other than the President, you have to do things the old fashion way and sue, and that is what RFK, Jr. has done.
The countervailing point is that many feel that social media has been derelict in its duty to stem the flow of misinformation, hate speech, false information, and crazy conspiracy theories. It is the reaction to that knock on social media that has ensnared Bobby’s group (and many other groups who are against vaccine mandates) in this boondoggle.
It is also known that foreign powers, notably Russia, China, and Iran are using social media as “useful idiots” to spread false facts and conspiracy theories to sow dissension and weaken the country. And regrettably, it is working all too well.
Congress held hearings about this warned Facebook and the other big social media players that if they didn’t get this false information under control, including what was claimed to be the false information spread by the “anti-vaxxers,” Congress would do it by regulation. The lawsuit ties those Congressional threats into the story the Complaint tells.
On a technical level, the complaint is a very impressive piece of legal work. And it certainly raises some timely and very important questions. I also think that this suit will be widely applauded by many different communities, mostly good (in my view anyway) but some not so good. The right-wing wingnuts who spew crazy racist hate and conspiracy theories who have been banned from social media will love the complaint, but I guess that’s sometimes the cost of doing business. The ACLU defended the American Nazi’s right to march in Skokie because there were important First Amendment issues. This lawsuit, if successful, might benefit some very unsavory characters and groups, (like the Alex Jones types), but there is no question that the lawsuit raises very important questions which need to be aired publicly and not just in the halls of Congress.
Beyond that, there is one thing I am very certain of.
I don’t want Mark Zuckenberg and a few of his billionaire Silicon Valley confreres deciding what I can see or post on their platforms, mostly because there are so few of them and they are in effect a monopoly. That may mean breaking them up like they did with AT&T, (and I am in favor of that big-time), or it may mean something else.
But to the extent that this lawsuit furthers the conversation about taking away the power of a very, very few rich white guys to decide what Americans see on social media, I’m for it, and it is happening none too soon.
Rick Jaffe, Esq.