Robert F. Kennedy Jr. testifies during a Senate Committee on Health, Education, Labor and Pensions hearing regarding his confirmation to become secretary of Health and Human Services on Jan. 30. Rod Lamkey Jr./Associated Press

A Cape Elizabeth man is asking Maine’s highest court to dismiss a libel lawsuit filed by Robert F. Kennedy Jr., who accuses the man of making defamatory statements in social media posts during Kennedy’s recent run for president.

David Vickrey’s request that the lawsuit be dismissed was denied in late January by Cumberland County Superior Court Justice Thomas McKeon. Vickrey and his attorney have since filed an appeal of that ruling with the Maine Supreme Judicial Court.

Kennedy eventually dropped out of the presidential race and was confirmed last week as the Trump administration’s secretary of Health and Human Services, an appointment that was controversial because of Kennedy’s past criticisms of vaccines and his false claim that some vaccines cause autism.

Kennedy’s suit accuses Vickrey of making false claims on X and “in statements to third parties and the public” that Kennedy opposes all vaccines, that he helped cause a measles outbreak in Samoa and that he wanted to cause the death of Black people.

It says Vickrey also republished falsehoods in a 2020 blog post he wrote for the progressive website Daily Kos about Kennedy’s speech at a rally in Germany. Vickrey wrote that the rally was organized by right-wing extremists, including a neo-Nazi group.

Kennedy said Vickrey attributed the claim to a German article, but the article had actually reported the rally was organized by a democratic movement that opposes fascism and extremism and excluded the neo-Nazi group.

“Defendant knew … that the German article he was translating never said Mr. Kennedy joined, associated, supported or spoke on behalf of the neo-Nazi (National Democratic Party of Germany),” Kennedy’s complaint says. “Despite knowing this … defendant published the lie all over repeatedly, with more flamboyant falsehoods.”

Vickrey, meanwhile, has argued that the “alleged defamatory statements almost entirely consist of his sharing of articles and videos from other content providers,” including his sharing of a YouTube video about Kennedy’s role in the Samoa measles outbreak on X and his sharing of a link to an article about Kennedy’s anti-vaccine stances harming Black people.

In his motion to dismiss, Vickrey said the suit violates Maine’s anti-SLAPP statute, which protects people from retaliatory lawsuits that target free speech. In addition, Vickrey said the blog post and some of the posts on X fall outside of a two-year statute of limitations on defamation. Kennedy also is a public figure who failed to show any actual damages or injury from the posts, Vickrey said.

“For over one year, plaintiff, a well-known public figure from a prominent American political family, a former candidate for the United States presidency, and now a potential member of the administration of President-elect Trump, has threatened and harassed David Vickrey, a citizen of Maine who happens to share political beliefs that differ from those of the plaintiff,” Vickrey’s attorney wrote in the motion to dismiss the case filed in November.

Attorneys for Kennedy did not respond to emails or voicemail messages seeking an interview about the case. Brian Suslak, a New Hampshire-based attorney for Vickrey, said that Vickrey is not commenting on the case at the moment.

“We have filed an appeal of the order on the motion to dismiss and we await the Law Court’s decision on the appeal,” Suslak said in an email. 

In a statement to The Defender, a publication of the nonprofit Children’s Health Defense founded by Kennedy, Kennedy’s attorney Robert Barnes called the denial of the motion to dismiss “a big win.”

“The court found that repeating lies about Robert F. Kennedy Jr. that have been proven false by prior lawsuits is clear evidence of actual malice toward Kennedy,” Barnes said.

In the ruling against dismissal of the case, McKeon said the anti-SLAPP law is intended to apply to cases involving a government response to free speech, not the response of a candidate such as Kennedy.

ARGUMENTS REJECTED

McKeon said he could not say “beyond a reasonable doubt” that Kennedy would not be entitled to relief, and that it wasn’t immediately clear that Vickrey was simply expressing his own opinion as opposed to making defamatory statements.

McKeon also rejected Vickrey’s argument that a statute of limitations would apply, saying that the republication of past statements can lead to new harms.

And he said the Communications Decency Act cited by Vickrey protects internet users but not “information content providers” who contribute to, develop or create content, either in whole or in part.

“The complaint does not suggest the tweets that reposted links to third-party sources are the sole instances of alleged defamation, but rather that defendant defamed plaintiff on multiple social media platforms and on multiple occasions,” McKeon wrote.

Vickery said in court documents that this is the third time Kennedy has threatened to or has actually filed a lawsuit against him, including a 2023 defamation suit filed in New Hampshire that was dismissed because of a lack of connection between the case and the state. The judge also denied an appeal after Kennedy’s lawyer filed a motion a day late.