The Legal Beat

Jed Rubenfeld Using His Suspension From Yale Law School In Defense Of Anti-Vaxxers
Posted on Friday May 07, 2021

Jed Rubenfeld (Photo by Gareth Cattermole/Getty Images)

Oh dear. If there’s anything I am certain about as society tries to come out from under the scourge of a global pandemic, it’s that anti-vaxxers are the absolute worst. Experts now believe that the United States will never achieve COVID-19 herd immunity — not because of a failure of science, but because too many people are too thick headed to actually get vaccinated. It’s absolutely infuriating. But, here we are.

Anyway, speaking of pricks, I say all this as preface to the revelation that suspended Yale Law professor Jed Rubenfeld has decided to use his, ahem, time off in defense of anti-vaxxers. If you’ll recall, Rubenfeld was suspended from YLS for two years following a lengthy investigation into sexual harassment allegations. Now we’ve learned the celebrity law prof is representing Children’s Health Defense (CHD), a nonprofit founded by anti-vaxxer Robert F. Kennedy Jr., in a lawsuit against Facebook and fact checkers Poltifact.

As reported by Courthouse News:

In January 2019, Facebook started slapping warning labels on content posted on CHD’s Facebook page, including in September that year when the social media giant posted a message directing users to seek “reliable, up-to-date information” about vaccines from the U.S. Centers for Disease Control and Prevention. Facebook also started labeling some of CHD’s content as “false information” based on research by third-party fact checkers, including a link to an article claiming vaccinated children “are more likely to have adverse health outcomes” in May 2020.

CHD sued Facebook and its CEO Mark Zuckerberg this past August seeking at least $5 million in damages over the social network’s censoring practices and decision to disable a “donate” button on CHD’s Facebook page, which it says hobbled the group’s ability to raise money through the platform.

To get around the rather obvious government-actor-sized hole in their argument, CHD argues that the government coerced Facebook to restrict their speech, making it a First Amendment violation. As Rubenfeld reportedly argued in the motion to dismiss hearing:

“State action must be found whenever government officials are coercing, inducing or encouraging private parties to do what they themselves cannot constitutionally do,” CHD attorney Jed Rubenfeld said.

CHD also took umbrage with Facebook saying they were working with the CDC and WHO to stop the spread of misinformation. They pushed back on District Judge Susan Illston’s questions about false statements:

“And does it matter if what the CDC said is true,” Illston asked.

Rubenfeld replied by insisting the information his client has posted about vaccines is true, but even if the speech was false, “it would still be constitutionally protected.”

Defending vaccine misinformation… that’s a crappy way to use such a fancy legal pedigree. I wonder what else he’s planning to do during his suspension…  perhaps a lower hell-demon is in need of expert legal advice.

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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