In The Politics of Autism, I analyze the myth that vaccines cause autism. This bogus idea can hurt people by allowing diseases to spread. Examples include measles, COVID, flu, and polio.
A number of posts discussed Trump's support for the discredited notion.
Another leading anti-vaxxer is presidential candidate Robert F. Kennedy, Jr. He has repeatedly compared vaccine mandates to the Holocaust. Rolling Stone and Salon retracted an RFK article linking vaccines to autism.
The panel affirmed the district court’s dismissal of a complaint brought by the nonprofit advocacy organization Children’s Health Defense (CHD) against Meta Platforms, Mark Zuckerberg, and others challenging Meta’s policy of censoring Facebook posts conveying what CHD describes as accurate information challenging current government orthodoxy on vaccine safety and efficacy.
The panel noted that although Meta is a private corporation, in certain exceptional circumstances, a private party will be treated as a state actor for constitutional purposes. To do so, the private party must meet two distinct requirements: (1) the “state policy” requirement, which is satisfied when a private institution enforces a state-imposed rule instead of the terms of its own rules; and (2) the “state actor” requirement, which can be met by showing, among other things, willful participation in joint activity with the government or government coercion.
The panel held that CHD 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. Moreover, CHD failed to allege any facts that would suggest an agreement between the government and Meta that required Meta to take a particular action in response to misinformation about vaccines or that the government coerced Meta into implementing a specific policy.
The panel held that CHD’s inability to establish state action was fatal to all of its First Amendment claims—for damages under Bivens, for declaratory relief, and for an injunction. To the extent that CHD argued on appeal that Meta’s disabling of its donation button was a “taking” under the Fifth Amendment, that claim failed for the same reason. The panel further rejected CHD’s claim that the warning label and fact-checks Meta placed on its posts violated the Lanham Act, as well as CHD’s civil RICO claim.
Concurring in part, concurring in the judgment in part, and dissenting in part, Judge Collins stated that CHD could plausibly allege a First Amendment claim for injunctive relief against Meta and he therefore dissented from the majority’s contrary conclusion. However, he agreed that all of CHD’s other claims were properly dismissed, and he therefore concurred in the judgment as to those remaining claims and in Parts III, IV, and V of the majority opinion. In Judge Collins’s view, CHD can adequately plead state action under the test articulated in Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989). Judge Collins would hold that given all the circumstances, Meta’s interactions with the Government with respect to the suppression of specific categories of vaccine-related speech, and in particular the speech of CHD and its founder and chairman, Robert F. Kennedy, Jr., sufficed to implicate the First Amendment. Because CHD could amend its complaint in a manner that states a cause of action for injunctive and declaratory relief, he would reverse the district court’s judgment in favor of Meta to the extent it held to the contrary.
