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Children’s Health Defense (CHD) is likely to appeal last week’s adverse ruling in its free speech censorship case against Meta — the parent company of Facebook and Instagram — Mary Holland, CHD CEO said in an appearance on “The Defender In-Depth.”
“We weren’t shocked by the decision,” Holland said. “We’re unhappy with it, and for sure, the likelihood is that we will petition the U.S. Supreme Court on this case.”
During the interview, Holland discussed the implications of the recent ruling, the legal issues at hand in the case, the majority’s decision, which ignored recent evidence of government censorship against organizations like CHD and the dissenting opinion, which took into account this new evidence.
Describing it as a “David versus Goliath” battle, Holland discussed plans to appeal the verdict. She also discussed other ongoing legal cases challenging everything from government censorship to the liability shield for those manufacturing or administering vaccines — and some recent legal successes on these fronts.
‘We didn’t really have a choice … we had to get into this censorship battle’
According to Holland, CHD was thrust into efforts to challenge government and social media censorship after its own content was censored even before the onset of the COVID-19 pandemic.
“Back in 2019, 2018, we weren’t really looking to be in the business of challenging government censorship, but we really didn’t have a choice,” Holland said.
In 2018, Holland said Facebook had joined forces with the Centers for Disease Control and Prevention (CDC) and the World Health Organization, to put warning labels on CHD’s website. The labels directed social media users to go to the CDC “for truthful information.”
Later, Facebook removed CHD’s “donate” button, “and then shortly thereafter, they just deplatformed CHD and they also deplatformed Robert F. Kennedy Jr.” — then-chairman and chief litigation counsel of CHD (now chairman on leave).
CHD sued Facebook in August 2020, with an amended complaint filed in December 2020. The suit accused the 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.
“We filed this lawsuit directly against Facebook alleging that they were acting in collusion with or being coerced by the federal government,” Holland said.
CHD garnered no support for its case from traditional anti-censorship advocates.
“Sadly, the people that I would’ve expected to be really at the forefront of this, the American Civil Liberties Union, other groups that have really fought against censorship historically, they weren’t interested,” Holland said.
Majority opinion sought to protect Meta’s ‘First Amendment rights’
CHD’s lawsuit was dismissed in 2021, but on appeal, the 9th Circuit U.S. Court of Appeals heard oral arguments in May 2022. It took over two years for the court to issue a ruling.
“To wait two full years after oral arguments … is really not normal. It’s a really long time,” Holland said.
According to Holland, the 9th Circuit was likely awaiting decisions in other similar First Amendment censorship cases before issuing a ruling of its own. She said:
“We surmise that during those two years, the 9th Circuit Court of Appeals … was waiting to see what was going to happen in the Missouri v. Biden case, [which] became then Murthy v. Missouri.
“They wanted to understand what is the Supreme Court’s view of these arguments that the government is working hand-in-glove with social media to censor disfavored opinions, be it about election information or vaccine [or] COVID-related information.”
Holland said that during these two years, “incredible information” about the “censorship-industrial complex” came out of the discovery process.
This new evidence formed the basis for a series of briefs CHD sent the 9th Circuit.
“During the two years while the 9th Circuit was sitting on a decision, we sent them, I think, 10 different documents … and we requested that they take judicial notice,” Holland said. “They were really credibly sourced documents between the government and social media.”
The 9th Circuit wouldn’t respond to the question of whether they were going to take notice, Holland said. And the majority’s “relatively short” and “not really extensively reasoned” opinion in last week’s ruling didn’t address the new documents.
“The majority decision [found that] CHD has not met its burden to prove or to plausibly allege that the government was either coercing or jointly acting with Meta or with [Mark] Zuckerberg or with the fact-checkers,” Holland said.
According to Holland, they were able to reach that conclusion largely by claiming that they didn’t have an obligation to take into account the new evidence CHD sent them.
The majority also ruled that if they were to send the case back to the lower court and allow CHD to make its claim, they worried it would “infringe on Meta’s First Amendment rights,” Holland said.
Dissenting opinion: Meta a ‘quasi-governmental agency’
The majority and dissenting opinions in the Meta ruling referred to Section 230 of the Communications Decency Act, which Holland said grants “virtually complete liability protection to the social media platforms” for user content posted to those platforms.
While the majority opinion found that Meta acted independently of any government influence in censoring CHD’s content, Holland said the dissenting opinion found that “members of Congress and the Biden administration … were threatening social media” with the removal of Section 230 privileges if they didn’t align with the government’s COVID-19 narratives.
According to Holland, Judge Daniel P. Collins’ dissent “found that CHD had plausibly alleged that Meta had colluded with, had been a joint actor with the government and might even have been coerced by the government.”
According to Holland, he reached that conclusion “by taking account of everything we submitted for judicial notice.” She said Collins’ dissent included “a very, very detailed chronology of how Meta changed its discourse.”
Holland noted that under typical circumstances, it is “not in the commercial interest” of private social media platforms to censor content that attracts “viewers and readers,” such as the content that CHD and Kennedy were posting.
“That’s how they make their money … All things equal, what platforms want is for people to use their platform,” Holland said. Accordingly, when platforms like Meta begin censoring content, it’s “because they are under regulatory fire or they’re under political pressure to do that.”
In his dissent, Collins agreed, noting that, as a result of the Section 230 liability shield, Meta operates as “a quasi-governmental agency.”
Holland said:
“Judge Collins, I think in a very rigorous analytical decision, reaches the conclusion that … we have successfully plausibly alleged [our claims]. Now remember when he says we have plausibly alleged, all that means is that the case then goes to trial, it means that the case isn’t thrown out.”
According to Holland, the evidence showed “traceability” between “the government actor and the person being censored” — including White House communications specifically targeting CHD and Kennedy — and “veiled threats” toward the social media platforms.
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Supreme Court likely to consider dissenting opinion ‘very carefully’
Holland said that while CHD will face an uphill battle if it chooses to appeal to the Supreme Court, it is likely that the court will strongly consider Collins’ dissent.
“Collins is a very well-recognized, thoughtful appeals court judge, and the likelihood is that the Supreme Court will read his dissent with care,” Holland said.
Despite some other legal setbacks, including rulings in whistleblower lawsuits against Big Pharma giants Pfizer and Merck, Holland cited several recent victories and ongoing court cases relevant to health freedom and free speech.
These include CHD’s censorship lawsuit against the Biden administration — which was consolidated with Murthy v. Missouri — CHD’s ongoing antitrust lawsuit against the Trusted News Initiative, lawsuits challenging the liability shield for vaccine manufacturers and administrators, and victories in religious exemption cases.
“David’s up against Goliath,” Holland said. “David ultimately wins, and I take great comfort from that in the historical account, but it’s hard to go up against Goliath,” Holland said. “We’re still fighting the good fight … and we’re not going to stop.”
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‘The Defender In-Depth’ airs each Wednesday at 10 a.m. ET/9 a.m. CT on CHD.TV.
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.
