In a lawsuit that seems determined to ignore that Section 230 exists, Robert F. Kennedy Jr. has sued Meta for allegedly shadowbanning his million-dollar documentary, Who Is Bobby Kennedy? and preventing his supporters from advocating for his presidential campaign.
According to Kennedy, Meta is colluding with the Biden administration to sway the 2024 presidential election by suppressing Kennedy's documentary and making it harder to support Kennedy's candidacy. This allegedly has caused "substantial donation losses," while also violating the free speech rights of Kennedy, his supporters, and his film's production company, AV24.
Meta had initially restricted the documentary on Facebook and Instagram but later fixed the issue after discovering that the film was mistakenly flagged by the platforms' automated spam filters.
But Kennedy's complaint claimed that Meta is still "brazenly censoring speech" by "continuing to throttle, de-boost, demote, and shadowban the film." In an exhibit, Kennedy's lawyers attached screenshots representing "hundreds" of Facebook and Instagram users whom Meta allegedly sent threats, intimidated, and sanctioned after they shared the documentary.
AdvertisementSome of these users remain suspended on Meta platforms, the complaint alleged. Others whose temporary suspensions have been lifted claimed that their posts are still being throttled, though, and Kennedy's lawyers earnestly insisted that an exchange with Meta's chatbot proves it.
Two days after the documentary's release, Kennedy's team apparently asked the Meta AI assistant, "When users post the link whoisbobbykennedy.com, can their followers see the post in their feeds?"
"I can tell you that the link is currently restricted by Meta," the chatbot answered.
Chatbots, of course, are notoriously inaccurate sources of information, and Meta AI's terms of service note this. In a section labeled "accuracy," Meta warns that chatbot responses "may not reflect accurate, complete, or current information" and should always be verified.
Perhaps more significantly, there is little reason to think that Meta's chatbot would have access to information about internal content moderation decisions.
Techdirt's Mike Masnick mocked Kennedy's reliance on the chatbot in the case. He noted that Kennedy seemed to have no evidence of the alleged shadow-banning, while there's plenty of evidence that Meta's spam filters accidentally remove non-violative content all the time.
Meta's chatbot is "just a probabilistic stochastic parrot, repeating a probable sounding answer to users’ questions," Masnick wrote. "And these idiots think it’s meaningful evidence. This is beyond embarrassing."
Neither Meta nor Kennedy's lawyer, Jed Rubenfeld, responded to Ars' request to comment.
Citing Ku Klux Klan law to defend Kennedy supporters
This isn't the first time that Kennedy has sued Meta. In 2020, Kennedy's group, the Children's Health Defense, took Meta to court, alleging that the Biden administration had colluded with Meta to censor the group's COVID-related anti-vaccine ads. That lawsuit argued that lawmakers passing Section 230 incentivized or "encouraged" Meta to censor posts as directed by the US government, which could threaten to revoke Section 230 if Meta did not moderate platforms as officials wished.
That lawsuit was dismissed last June, partly because US district judge Susan Illston agreed with a previous ruling that Section 230 "reflects a deliberate absence of government involvement in regulating online speech."
"The immunity provided by Section 230 does not provide sufficient 'encouragement' to convert Facebook’s private acts into state action," Illston wrote.
In this latest lawsuit, Kennedy's lawyers are pushing a similar theory that Meta is censoring Kennedy at the behest of the US government, but this time, there is no discussion of Section 230 potentially barring their complaint. It seems unlikely that ignoring Section 230 will stop Meta from erecting a strong Section 230 defense in response, though.
Instead of discussing Section 230, the complaint focused on criticizing content moderation decisions as violating a Civil Rights Act clause originally enacted to stop Ku Klux Klan from attacking and silencing emancipated slaves. The clause protects "the right to participate freely in federal elections" and prohibits "private actors from conspiring to interfere in those elections by 'threatening,' 'intimidating,' or 'injuring' citizens."
In this case, Meta and the Biden administration are claimed to be co-conspirators colluding to block citizens from promoting their favorite presidential candidate.
Meta allegedly "acted on this conspiracy by sending users messages falsely stating that Who Is Bobby Kennedy? violated Facebook’s or Instagram’s 'community standards,' by falsely representing that the film was 'spam,' contained 'violent' or 'sexual' content, or contained inaccurate COVID- or vaccine-related information, by threatening users with suspension and/or other punitive action if they continued trying to watch, post, share or link to the film, and by inflicting such punishment on users who did so," the complaint said.
AdvertisementFurther, the complaint alleged that "Meta's famously hands-on CEO" Mark Zuckerberg is liable because he "must have known and did know that Meta was censoring Who Is Bobby Kennedy."
Kennedy is seeking punitive damages, as well as an injunction that would stop Meta from censoring the documentary, taking punitive actions against Kennedy's supporters, or colluding with federal officials to censor speech. He also wants accounts reinstated for all supporters who are still suspended on Facebook or Instagram.
On X (formerly Twitter), where Kennedy's documentary was never censored, AV24's co-founder Tony Lyons said the lawsuit was about protecting the "sanctity of public discourse." The documentary was made, the complaint said, to dispel "falsehoods" about Kennedy "repeatedly asserted by major news outlets and social media platforms."
"When social media companies censor a presidential candidate, the public can’t learn what that candidate actually believes and what policies they would pursue if elected," Lyons said. "We are left with the propaganda and lies from the most powerful and most corrupt groups and individuals."
But Techdirt's Masnick pointed out that the Supreme Court 50 years ago ruled that "media cannot be compelled to host anyone’s speech (including politicians), because that would violate the First Amendment."
"All that really matters is that Facebook can refuse to share any content it wants as a private entity with full editorial rights under the First Amendment," Masnick wrote.
On X, the documentary has been viewed more than 100 million times, Kennedy's complaint said, but Facebook is where the Baby Boomers are, and they're "a critical voting and donating demographic" six to seven times less active on X. Kennedy's complaint estimated that Meta "prevented the film from reaching tens of millions of Facebook and Instagram users," with a Kennedy supporter in one screenshot calling out Meta for "unbelievable censorship."
Currently, the top comment under AV24's X post announcing the lawsuit, though, comes from a critic joining Masnick and others mocking the lawsuit as nonsense and suggesting that Kennedy's film is propaganda, not media reports on his activism.
"Nothing says freedom like trying to force private companies to show your propaganda film," the user wrote.
