Another Anti-Vaxxer Jawboning Lawsuit Fails-ICAN v. YouTube – Technology & Marketing Law Blog

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This is another lawsuit by anti-vaxxers. The “Informed Consent Action Network,” and its founder Del Bigtree, ran afoul of the social media services’ COVID misinformation policies. YouTube and Facebook each repeatedly blocked ICAN’s content items before yanking ICAN’s accounts. ICAN claimed that the social media services took these actions due to government pressure and jawboning, especially pointing the finger at Rep. Schiff. (Other unsuccessful lawsuits triggered by Rep. Schiff’s jawboning: AAPS v. Schiff, Daniels v. Alphabet, Children’s Health Defense v. Facebook, and Doe v. Google). ICAN sued YouTube and Facebook for violating its First Amendment rights and sought must-carry relief “ordering Defendants to restore ICAN’s accounts and barring the social media platforms from restricting ICAN’s speech.” Like the 70+ similar cases preceding it, the case failed.

The court says the social media services aren’t state actors. Rep. Schiff’s jawboning didn’t create any “joint action” because “ICAN supplies only statements from elected and corporate officials reflecting little more than a shared interest in a problem of misinformation.” Also, there’s no allegation that “Defendants relied on formal governmental authority in developing and enforcing their content moderation protocols.”

Using government-produced information as the baseline sources of “truth” doesn’t change the analysis because the government didn’t “cause” the services to adopt these standards:

the guidelines that Defendants allegedly adopted as the basis for their rules stem from “medical information” promulgated by health officials to guide public behavior, not to moderate online conduct. By adopting a public health framework to guide decisions about content moderation, Defendants by definition maintained “independent professional judgment” to make decisions about the content on their platforms.

The social media services weren’t “coerced” into taking the actions they did, even though Rep. Schiff (imprudently) threatened Section 230 as part of his jawboning. The court cites the Daniels decision for the proposition that “[t]he publicly expressed views of individual members of Congress – regardless of how influential – do not constitute ‘action’ on the part of the federal government.” Plus, Schiff’s jawboning didn’t target ICAN’s content specifically.

The court gave ICAN a chance to file an amended complaint, so this case will fail one more time in district court before heading to the Ninth Circuit.

Case citation: Informed Consent Action Network v. YouTube LLC, 2022 WL 278386 (N.D. Cal. Jan. 31, 2022)

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