Breaking: Landmark lawsuit slaps legacy media with antitrust, First Amendment claims for censoring COVID-related content

In a live interview this evening on Fox News’ “Tucker Carlson Tonight,” Robert F. Kennedy, Jr., chairman and chief litigation counsel for Children’s Health Defense (CHD), announced that he and several other plaintiffs filed a groundbreaking novel lawsuit making antitrust and constitutional claims against legacy media outlets.

(Article by Michael Nevradakis, Ph.D. republished from ChildrensHealthDefense.org)

The lawsuit targets the Trusted News Initiative (TNI), a self-described “industry partnership” launched in March 2020 by several of the world’s largest news organizations, including the BBC, The Associated Press (AP), Reuters and The Washington Post — all of which are named as defendants in the lawsuit.

Filed today in the U.S. District Court for the Northern District of Texas-Amarillo Division, the lawsuit alleges these outlets partnered with several Big Tech firms to “collectively censor online news,” including stories about COVID-19 and the 2020 U.S. presidential election that were not aligned with official narratives regarding those issues.

Plaintiffs in the lawsuit include CHD, Kennedy, Creative Destruction Media, Trial Site News, Ty and Charlene Bollinger (founders of The Truth About Cancer and The Truth About Vaccines), independent journalist Ben Swann, Erin Elizabeth Finn (publisher of Health Nut News), Jim Hoft (founder of The Gateway Pundit), Dr. Joseph Mercola and Ben Tapper, a chiropractor.

All of the plaintiffs allege they were censored, banned, de-platformed, shadow banned or otherwise penalized by the Big Tech firms partnering with the TNI, because the views and content they published were deemed “misinformation” or “disinformation.” This resulted in a major loss of visibility and revenue for the plaintiffs.

The lawsuit further alleges that Big Tech firms, having partnered with the TNI, based their decisions on determinations jointly made by TNI, which touted its “early warning system” by which each partner organization is “warned” about an individual or outlet that is disseminating purported “misinformation.”

The TNI’s legacy media and Big Tech firms then acted in concert — described in legal terms as a “group boycott” — to remove such voices and perspectives from their platforms. This forms the basis of the lawsuit’s antitrust and First Amendment claims.

Remarking on the lawsuit, Kennedy told The Defender:

“My uncle, President Kennedy, and my father, the attorney general, sought to prosecute antitrust laws that are still on the nation’s books, with vigor.

“As private enforcers of those laws, we are confident that the federal court in Texas will vindicate our bedrock freedom to compete with legacy media in the marketplace of ideas.”

Mary Holland, CHD president and general counsel, told The Defender:

“I’m glad that CHD is bringing this case. We are hopeful we will get a fair hearing, and I’m glad that we are together with other organizations that have also been harmed by these corporate and governmental censorship policies.

“To have a free society, you have to have free speech, you have to have a diversity of views. We don’t have the same views as all of the other plaintiffs by far … but we want to protect the marketplace of ideas.

“If in fact the government and the corporations they collaborate with can engage in censorship and propaganda nonstop, and there are no alternative voices, democracy is dead.”

Charlene Bollinger similarly remarked on the importance of preserving free speech. She said:

“This lawsuit is about preserving our free speech rights as Americans and holding those involved in violating antitrust laws accountable, like the TNI.

“My husband and I remain steadfast in our commitment to highlighting the well-documented risks of COVID-19 vaccines and the myriad of dangers to those who are not informed by their healthcare providers of the side effects of harsh pharmaceutical treatments for life-threatening illnesses.”

Mercola, in turn, focused on collusion between government agencies and media and Big Tech. He said:

“These are the twin evils of our day. Platforms partner with the alphabet soup of federal agencies to censor speech. Those same platforms and legacy media outlets conspire to boycott stories that don’t fit an official narrative about COVID and many other topics.

“Our nation’s founding fathers would be appalled and resolute in defense of maintaining an informed citizenry.”

Alleging per se and “rule of reason” violations of the Sherman Antitrust Act on the basis of direct and circumstantial evidence of horizontal agreement and economic collusion among the defendants and Big Tech firms, the plaintiffs are requesting a jury trial and treble damages.

They also are requesting orders declaring the defendants’ conduct unlawful and enjoining further such actions on their part.

TNI viewed organizations reporting non-establishment views as ‘an existential threat’

The lawsuit states, “There are two main categories of TNI members, playing different but often complementary roles in the online news market: (A) large legacy news organizations (hereafter the TNI’s ‘Legacy News Members’) and (B) Big Tech platform companies (hereafter the TNI’s ‘Big Tech Members’).”

Legacy news organizations are publishers of original news content and include the defendants named in the lawsuit.

“By contrast,” the lawsuit states, “the TNI’s Big Tech members — Facebook, Google, Twitter, and Microsoft — are first and foremost Internet companies, each of which is, owns or controls one or more behemoth Internet platforms, including social media platforms and search engines.”

“Core partners” of the TNI include the AP, Agence France Press, the BBC, CBC/Radio-Canada, the European Broadcasting Union (EBU), the Financial Times, First Draft, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Reuters, the Reuters Institute for the Study of Journalism, Twitter and The Washington Post.

The lawsuit’s executive summary states:

“The TNI exists to, in its own words, ‘choke off’ and ‘stamp out’ online news reporting that the TNI or any of its members peremptorily deems ‘misinformation.’

“TNI members have targeted and suppressed completely accurate online reporting by non-mainstream news publishers concerning both COVID-19 (on matters including treatments, immunity, lab leak, vax injury, and lockdowns/mandates) and U.S. elections (such as the Hunter Biden laptop story).”

The lawsuit also alleges:

“By their own admission, members of the [TNI] have agreed to work together, and have in fact worked together, to exclude from the world’s dominant Internet platforms rival news publishers who engage in reporting that challenges and competes with TNI members’ reporting on certain issues relating to COVID-19 and U.S. politics.

“While the ‘Trusted News Initiative’ publicly purports to be a self-appointed ‘truth police’ extirpating online ‘misinformation,’ in fact it has suppressed wholly accurate and legitimate reporting in furtherance of the economic self-interest of its members.”

According to the lawsuit, “this is an antitrust action,” and specifically, “Federal antitrust law has its own name for this kind of ‘industry partnership’: it’s called a ‘group boycott’ and is a per se violation of the Sherman Act.”

Legal precedent holds that a “group boycott” is “a concerted attempt by a group of competitors” to “disadvantage [other] competitors” by “cut[ting] off access” to a “facility or market necessary to enable the boycotted firm[s] to compete.”

As evidence of this allegation, the lawsuit references multiple public statements by TNI partners, including a March 2022 statement by Jamie Angus, then-senior news controller for BBC News, who explained TNI’s “strategy to beat disinformation”:

“Of course, the members of the Trusted News Initiative are … rivals …  But in a crisis situation like this, absolutely, organizations have to focus on the things they have in common, rather than … their commercial … rivalries. … [I]t’s important that trusted news providers club together.

“Because actually the real rivalry now is not between for example the BBC and CNN globally, it’s actually between all trusted news providers and a tidal wave of unchecked [reporting] that’s being piped out mainly through digital platforms . … That’s the real competition now in the digital media world.

“Of course, organizations will always compete against one another for audiences. But the existential threat I think is that overall breakdown in trust, so that trusted news organizations lose in the long term if audiences just abandon the idea of a relationship of trust with news organizations. So actually we’ve got a lot more to hold us together than we have to work in competition with one another.”

The lawsuit alleges the above quote admitting the “existential threat” members of the TNI believed smaller news organizations posed to their news and informational primacy is evidence of anti-competitive collusion and of TNI members’ economic motivation to stifle this “threat”: “a paradigmatic antitrust violation … to cut off from the market upstart rivals threatening their business model.”

Angus has since left the BBC to take a position with Saudi Arabia’s state-owned television broadcaster, according to the lawsuit.

“Plaintiffs are among the many victims of the TNI’s agreement and its group boycott,” states the lawsuit. “Plaintiffs are online news publishers who, as a result of the TNI’s group boycott, have been censored, de-monetized, demoted, throttled, shadow-banned, and/or excluded entirely from platforms like Facebook, YouTube, Twitter and Instagram.”

As a result of this “group boycott,” the lawsuit states:

“The TNI did not only prevent Internet users from making these claims; it shut down online news publishers who simply reported that such claims were being made by potentially credible sources, such as scientists and physicians.

“Thus TNI members not only suppressed competition in the online news market but deprived the public of important information on matters of the highest public concern.”

The plaintiffs referenced Supreme Court precedent — specifically, a 1945 ruling involving the AP — to support their First Amendment claims against TNI, noting that contrary to popular belief, First Amendment violations do not exclusively refer to the censorship of speech by the government.

The lawsuit states that in the 1945 case, Associated Press v. United States, a news industry partnership (the AP) “prevented non-members from publishing certain stories.”

These non-members sued under the Sherman Act, but the AP claimed its actions were protected by the First Amendment.

However, the Supreme Court sided with the plaintiffs. In the majority opinion, Justice Felix Frankfurter wrote that the First Amendment:

“… rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.

“Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom.

“Freedom to publish means freedom for all, and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”

Holland commented on the significance of the Supreme Court precedent, telling The Defender:

“The lawsuit is resting on a really strong Supreme Court precedent that basically says whether it is government censorship or it is collusive anti-competitive illegal suppression by the private sector, it’s illegal. You can’t do that.

“The AP, in its day, was very much a kind of precursor of the TNI, and it’s a very strong decision, very strong language against the Associated Press that was essentially doing the same thing back in the day.”

Noting the enormous market share held by Big Tech firms such as Facebook, Google, Microsoft and Twitter, the lawsuit states, “The TNI’s Big Tech members are ‘platform gatekeepers’ in the online news market, with the power to cripple or destroy publishers by excluding them from their platforms.”

TNI’s legacy news partners took advantage of their cooperation with each other and with Big Tech, to “choke off” inconvenient narratives, the plaintiffs allege.

The lawsuit notes, for instance, that “TNI members agreed in early 2020 that their ‘ground-breaking collaboration’ would target online news relating to COVID-19 and that TNI members would ‘work together to … ensure [that] harmful disinformation myths are stopped in their tracks’” and “jointly [combat] fraud and misinformation about the virus.”

In July 2020, the lawsuit states, “TNI ‘extended’ its collaboration to cover so-called ‘disinformation’ about the United States presidential election,” stating it was “committed to a shared early warning system of rapid alerts to combat the spread of disinformation during the U.S. presidential election.”

And in 2020 and 2021, according to the lawsuit, the BBC’s Jessica Cecil, then-head of the TNI, made a series of statements, including a claim that TNI was “the only place in the world where disinformation is discussed in real time” and that its partners sought to find “practical ways to choke off” stories and topics TNI deemed “misinformation.”

TNI’s Big Tech partnerships were imperative in these efforts, according to the lawsuit, which included as evidence several public quotes from Cecil. In 2021 for instance, Cecil stated:

“The BBC convened partners across the world in an urgent challenge: at times of highest jeopardy, when elections or lives are at stake, we asked, is there a way that the world’s biggest tech platforms from Google, YouTube, Facebook and Instagram to Twitter and Microsoft and major news organisations and others … can alert each other to the most dangerous false stories, and stop them spreading fast across the internet, preventing them from doing real world harm?”

The lawsuit also noted that Cecil admitted that TNI’s members, at “closed-door” meetings and in inter-firm communications, “signed up to a clear set of expectations on how to act” regarding such “misinformation” and “disinformation.”

According to Holland, only legacy news organizations are specifically targeted as defendants in this lawsuit, explaining that Big Tech firms typically have “very serious, very binding arbitration provisions” that require legal challenges against them to be filed in the courts of northern California.

“Northern California is Silicon Valley. It’s their turf,” said Holland. “And so, we decided, in order to be able to file in a jurisdiction that we believe will be more neutral on these issues … we elected to file in Texas just against the legacy media.”

But Big Tech could still be held liable, Holland said, “because the conspiracy between legacy media and Big Tech will incorporate all of them, if there is a conspiracy [found], they’re all liable, not just those who were named as defendants.”

Here are the emails that show the White House colluded with Twitter to censor my tweets.https://t.co/6xD9MvfwLe

— Robert F. Kennedy Jr (@RobertKennedyJr) January 9, 2023

TNI, in concert with Big Tech, censored COVID and 2020 election narratives

According to the lawsuit, TNI’s legacy news members acted in concert with their Big Tech partners to censor a wide range of non-establishment narratives pertaining to COVID-19 and to the U.S. presidential election of 2020, stating:

“TNI members have deemed the following to be ‘misinformation’ that could not be published on the world’s dominant Internet platforms: (A) reporting that COVID may have originated in a laboratory in Wuhan, China; (B) reporting that the COVID vaccines do not prevent infection; (C) reporting that vaccinated persons can transmit COVID to others; and (D) reporting that compromising emails and videos were found on a laptop belonging to Hunter Biden.”

“All of the above was and is either true or, at a minimum, well within the ambit of legitimate reporting,” according to the lawsuit.

“The TNI did not only prevent Internet users from making these claims; it shut down online news publishers who simply reported that such claims were being made by potentially credible sources, such as scientists and physicians.”

“Thus,” the lawsuit states, “TNI members not only suppressed competition in the online news market but deprived the public of important information on matters of the highest public concern.”

The lawsuit also alleges TNI members often knowingly removed or otherwise blocked content they knew was not false.

At a March 2022 TNI presentation, “Big Tech’s Part in the Fight,” a senior Facebook information moderation officer said “it was a mistake to think of ‘misinformation’ as consisting solely of ‘false claims,’ because a great deal of it is ‘not provably false.’”

Nevertheless, he “further emphasized the importance not only of targeting specific items of misinformation, but of ‘banning’ the sources thereof,” and stated that “Facebook works together with its ‘industry partners’ to combat ‘disinformation.’”

In emails revealed Jan. 6 as part of an ongoing lawsuit against President Biden and members of his administration alleging censorship, a memo by Meta (Facebook’s parent company) revealed efforts to reduce the visibility of CHD content, while a White House email asked for one of Kennedy’s COVID-19-related tweets to be “removed ASAP.”

The lawsuit contained a comprehensive list of “claims deemed ‘misinformation’ by one or more TNI members,” including:

• Claims that COVID-19 was manmade.
• Claims that COVID-19 was manufactured or bioengineered.
• Claims that COVID-19 was created by a government or country.
• Claims that “contradict” WHO or U.S. health officials’ guidance on the treatment, prevention, or transmission of COVID-19.
• Claims about the COVID vaccines that contradict “expert consensus” from U.S. health authorities or the WHO.
• Claims that Hydroxychloroquine (“HCQ”) is an effective treatment for COVID.
• Claims that Ivermectin (“IVM”) is an effective treatment for COVID.
• Claims that HCQ or IVM is safe to use as a treatment for COVID.
• Recommendations of the use of HCQ or IVM against COVID.
• Claims that COVID is no more dangerous to some populations than the seasonal flu.
• Claims that the mortality rate of COVID is for some populations the same or lower than that of the seasonal flu.
• Claims suggesting that the number of deaths caused by COVID is lower than official figures assert.
• Claims that face masks or mask mandates do not prevent the spread of COVID.
• Claims that wearing a face mask can make the wearer sick.
• Claims that COVID vaccines have not been approved.
• Claims that social distancing does not help prevent the spread of COVID.
• Claims that COVID-19 vaccines can kill or seriously harm people.
• Claims that the immunity from getting COVID is more effective than vaccination.
• Claims that the COVID vaccines are not effective in preventing infection.
• Claims that people who have been vaccinated against COVID can still spread the disease to others.
• Claims that the COVID vaccines are toxic or harmful or contain toxic or harmful ingredients.
• Claims that fetal cells were used in the manufacture or production of any of the COVID vaccines.
• Claims that a laptop belonging to Hunter Biden was found at a computer repair store in or around October 2020 or that the contents reportedly found on that laptop, including potentially compromising emails, videos, and photographs, were authentic.

“Moreover,” states the lawsuit, TNI members “publicly declared — categorically, as if it were established fact — that the lab-leak hypothesis of COVID’s origins was ‘false.’”

The lawsuit also alleges “TNI members confer and coordinate in making their censorship decisions,” noting that “TNI members’ parallel treatment of prohibited claims further evidences concerted action” by “engaging in strikingly similar viewpoint-based censorship of plausible, legitimate news reporting relating to COVID-19.”

Moreover, according to the lawsuit, “the temporal proximity” of these sanctions, including shadow bans and outright suspensions and bans, “plausibly suggests inter-firm communication and concerted action.”

The lawsuit notes that the recently released “Twitter files” provide further indication of such inter-firm communication and coordination, including “regular meetings” and “standing weekly call[s]” to “discuss censorship policies and decisions.”

According to the lawsuit, YouTube de-platformed Mercola on Sept. 29, 2021. Mercola learned about this action via a Washington Post article published that morning, although YouTube did not inform him of the decision until after the article was published.

In the lawsuit, all plaintiffs allege similar coordinated efforts at censoring their content and their social media accounts and subsequent financial damages due to being de-platformed and sustaining significant reductions to their audience size.

For instance, providing evidence of coordination ranging beyond the TNI’s members and partners, the lawsuit alleges that online payment platforms and processors such as PayPal and Stripe banned multiple plaintiffs, including CHD and Creative Destruction Media, within the same “temporal proximity” as their social media bans.

As summarized by Holland, TNI acts as “a global media monopoly”:

“They couch what they’re doing, their conspiracy to suppress independent media, i.e. the voices of dissent about election information and COVID information, as a ‘need to preserve the trust of the people’ and ‘upgrade the trust.’

“By censoring independent voices, what they’re doing is economic suppression. Antitrust is against trusts, it’s against monopolies, and what the TNI has done is essentially create a global media monopoly in the English language.”

Read more at: ChildrensHealthDefense.org

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