Federal appeals court rules in favor of PolitiFact and Meta against Children’s Health Defense

The 9th Circuit Court of Appeals in California ruled in favor of PolitiFact and its parent organization in a lawsuit filed by Children’s Health Defense, a legal advocacy group founded by Robert F. Kennedy Jr.

The Aug. 9 ruling affirmed the district court’s dismissal of a complaint brought by the Children’s Health Defense against Meta Platforms and Meta CEO Mark Zuckerberg. The lawsuit also named the Poynter Institute for Media Studies, PolitiFact’s owner and publisher, and Science Feedback, another Meta fact-checker.

The lawsuit alleged that PolitiFact blocked the group from displaying an article on its Facebook page, and more generally that it collaborated with Facebook and government and international entities — including the World Health Organization, the White House and the Centers for Disease Control and Prevention — "to suppress vaccine safety speech with a ‘warning label’ and other similar types of notices which, while purporting to flag misinformation, in reality censor valid and truthful speech, including content posted by (Children’s Health Defense) on its Facebook page regarding vaccines."

The appellate court majority held that Children’s Health Defense "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."

Children’s Health Defense "failed to allege any facts" that showed an agreement between the federal government and Meta on addressing misinformation about vaccines, the court said. 

Circuit Judge Eric D. Miller, who was nominated by then-President Donald Trump, wrote the majority opinion.

"Meta evidently believes that vaccines are safe and effective and that their use should be encouraged," Miller wrote. "It does not lose the right to promote those views simply because they happen to be shared by the government."

The panel’s decision was 2-1, with U.S. Circuit Judge Daniel P. Collins issuing a partial concurrence, and partial dissent. Collins wrote that Children’s Health Defense had shown it could plausibly allege a First Amendment claim against Meta for non-monetary relief but agreed that all of the other claims against defendants were properly dismissed. 

In August 2020, Kennedy’s Children’s Health Defense sued the Poynter Institute in federal court accusing PolitiFact of wrongly ruling false another website’s claim that the flu vaccine was "significantly associated" with an increased risk of coronavirus. 

Susan Illston, a judge sitting in the U.S. District Court for California’s Northern District, dismissed those claims in June 2021.

Children’s Health Defense CEO Mary Holland said in a statement that the organization was "extremely disappointed" with the 9th Circuit decision: "If we cannot stop the government’s joint action with Big Tech to censor unwanted information, our First Amendment is a pyrrhic victory — it means almost nothing in our real world of social media."

Holland said plaintiffs are "considering our legal options," including petitioning the U.S. Supreme Court.

Mark Caramanica, who argued the case on behalf of Poynter in the appellate court, praised the decision.

"The Ninth Circuit rightfully recognized that CHD’s claims of coordination between government and independent fact-checking journalism outfits like PolitiFact simply held no water," Caramanica said. "The decision is a win for journalism and the marketplace of ideas to combat the spread of misinformation online."

PolitiFact’s 2020 fact-check examined a claim that the flu vaccine was significantly associated with an increased risk of coronavirus infection. The claim tracks back to an April 2020 story from the website collective-evolution.com. That story in turn cites research from the U.S. Armed Forces Health Surveillance Branch. PolitiFact’s reporting, which relied on expert interviews, found that the Armed Forces study did not support the conclusion and headline of the collective-evolution.com article. The study on respiratory viruses predated COVID-19’s arrival in the United States. 

Collective-evolution.com changed the headline and article after PolitiFact’s fact-check. The story has since been removed from the Collective-evolution.com website. 

PolitiFact is an independent member of Meta’s Third-Party Fact-Checking Program. Meta contracts with fact-checking organizations such as PolitiFact to fact-check false content on Meta’s platforms. 

Kennedy is running as an independent for president in 2024. Children’s Health Defense, which he founded in 2018 lists Kennedy as its chairman on leave.

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