Federal Judge: "Public Interest" Requires That Restrictions on "Medical Misinformation" Not Be Enjoined

In Kennedy v. Google, decided yesterday by Judge Trina Thompson (N.D. Cal.), plaintiff sued Google and YouTube claiming that they violated his First Amendment rights by removing videos in which he speaks about vaccines, and seeking a temporary restraining order:

On March 3, 2023, Kennedy spoke at Saint Anselm College's New Hampshire Institute of Politics. The speech centered around Kennedy's concerns about the merger of corporate and state power as related to the number of vaccines children take. He also spoke about his environmental and legal work fighting corporate polluters. On or about the same day, Manchester Public Television posted a video of the speech and YouTube removed it…. Plaintiff alleges that YouTube [also] removed … [the video] "RFK on Joe Rogan – Pfizer COVID Vaccine Trial." …

The court rejected Kennedy's First Amendment claim against Google, reasoning (correctly and unremarkably, I think) that Google isn't the government and thus isn't bound by the First Amendment, and any government interaction with Google urging it to remove certain speech about vaccines wasn't enough to make Google into a government actor.

But the court then went through the other preliminary injunction factors, and said the following (among other things):

Even if Plaintiff could establish that a Google was a state actor attributing its conduct to that of the governments, the rights guaranteed under the First Amendment are not unencumbered by any restrictions:

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Chaplinsky v. New Hampshire (1942). "The Ninth Circuit has consistently recognized the significant public interest in upholding First Amendment principles." However, there is also a strong public interest in protecting the community from an international public health crisis such as the COVID-19 pandemic…. The coronavirus still poses a health risk to certain individuals, and it would not serve the public interest to let medical misinformation proliferate on YouTube.

That strikes me as remarkable. It suggests either that

1. "medical misinformation" is constitutionally unprotected, period (since the Chaplinsky quote is about speech that the Court saw as permissibly subject even to criminal punishment), or that
2. even if a speaker has a solid First Amendment argument—e.g., if the speaker is suing a city to prevent it from blocking his speech in the park, or suing the Postal Service to prevent it from blocking his mailings—a court could refuse to issue a preliminary injunction when it concludes the speech contains "medical misinformation" (or, presumably, is harmful in other ways).

I think both options would be mistaken. I discuss here the general prohibition on punishing false statements about science and medicine generally (setting aside particular situations such as fraudulent commercial advertising, or bad advice by a doctor to a patient). And if I'm right that the speech is constitutionally protected against governmental restriction, I don't think that the judge can still allow the restriction to continue for supposedly harmful (but constitutionally protected) speech when the restriction would have to be enjoined as to other speech.

Again, I think the bottom-line result was correct, because there's no First Amendment violation here by Google and YouTube: They are private entities, and there likely isn't sufficient entanglement between them and the government to make them government actors in this situation. But the court's reasoning, which is that the injunction should have been denied "Even if Plaintiff could establish that … Google was a state actor," strikes me as mistaken.

Here, by the way, is Google's and YouTube's explanation for the removal:

In March 2023, Google removed a video of Kennedy speaking at Saint Anselm College's New Hampshire Institute of Politics (NHIOP), in which he "recount[ed] his suspicions regarding the expanded regime of childhood vaccines he suggests are linked to increased cases of autism in children." And in June 2023, Google removed a video in which Kennedy discussed the "Pfizer COVID Vaccine Trial" with podcast host Joe Rogan that included "claims about COVID19 vaccinations that contradict[ed] expert consensus." In each instance, Google "reviewed [the] content carefully, and … confirmed that it violate[d] [Google's] … policy." Google continues to allow other speeches and appearances by Kennedy to remain on YouTube.

UPDATE: My coblogger Sam Bray has a somewhat different perspective on this:

Here are the three relevant principles:

1. Protect speech, because equity follows the law. (Cardozo said "equity follows the law, but neither slavishly nor always," but that's not the main form of the maxim.) That would suggest not considering harmfulness.
2. The judge dispensing equity wants to make sure he or she does not become an instrument of injustice. This includes consideration of the conduct of the parties. Let's vary the facts a little, and say that the speaker wants a preliminary injunction about a video taken down by a state actor, and the video is protected speech but also seriously misleading. A court could say I'm not going to give you an injunction, because I think you're coming into equity with unclean hands—you have your damage remedy, but to give you an injunction would make the court complicit in your unjust scheme, etc.
3. In late-modern injunction tests there is explicit consideration of the public interest, but that's usually mediated through legal forms: e.g., the First Amendment expresses the public interest. But one could always vary that (pressing national security case, etc.).

The way I would put all this together is that I wouldn't say the harmfulness of the speech should prohibit the injunction, but I might consider it for other aspects of the drafting (e.g., two-week delay before it goes into effect, scope). But if it could be shown that this was a matter of unclean hands for the plaintiff, then all bets are off and it's fine in equity to deny or limit the injunction, even if he has a constitutional right to have unclean hands.

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