from the it's-not-rico-or-state-action-or-trademark-infringement dept
As you may recall, last summer we wrote about what we referred to as an “insanely stupid” lawsuit that Robert F. Kennedy had filed against Facebook on behalf of his wacky anti-vax organization “Children’s Health Defense” (CHD). The issue, of course, is that Facebook blocked CHD from posting the usual conspiracy theories and medical disinformation that RFK Jr. has been known to spread. But the case tried out some “new” theories on why such moderation was against the law: specifically, it argued that Section 230 turned websites into state actors by “privatizing” censorship and also that because Rep. Adam Schiff had sent a letter to Facebook asking it to crack down on disinformation on vaccines, that this also made them a state actor.
A few months later, disgraced (and suspended) Yale law professor Jed Rubenfeld published a Wall St. Journal op-ed pushing the same dopey theory about 230 making private companies state actors. So it wasn’t all that surprising when it came time for a hearing on RFK’s dopey case, Rubenfeld showed up in court to push the idea on behalf of Children’s Health Defense.
It seems that the legal argument went over about as well as we expected: the court has dismissed the case. The dismissal of the case goes deep on a variety of arguments — not all of which we need to dig into here, but suffice it to say, Facebook (and Mark Zuckerberg) are not state actors. First, the fact that Facebook has “worked with” the CDC to gather information does not, in fact, make it a state actor:
… general statements by the CDC and Zuckerberg about ?working together? to reduce
the spread of health or vaccine misinformation, or to promote universal vaccination do not show
that the government was a ?joint participant in the challenged activity,? specifically the decision to
put the warning label on CHD?s Facebook page, the fact-checks, and Facebook?s ?demonetization?
and ?shadow-banning? of CHD?s content and page. For example, one of the allegations CHD relies
upon is contained in Paragraph 52 of the SAC, which alleges, ?Zuckerberg has stated publicly that
Facebook is working with both the CDC and the WHO: ?We work with the [Centers for Disease
Control and Prevention] and we work with [the World Health Organization] and trusted health
organizations to remove clear misinformation about health-related issues that could cause an
imminent risk of harm.??…. This statement (and similar general statements by Zuckerberg,
Facebook, the CDC, or other entities within the federal government about ?working to remove
misinformation?) does not support the inference that Facebook (or Zuckerberg) worked in concert
with the CDC to censor CHD?s speech, retaliate against CHD, or otherwise violate CHD?s
Schiff’s letter also fails to magically turn Facebook into a state actor:
Relying on Congressman Schiff?s February 2019 letter to
Zuckerberg, CHD contends that Congressman Schiff ?provided a substantive standard ? deference
to CDC/WHO pronouncements conclusively presumed to be ?authoritative? ? by which Facebook
should identify and censor vaccine ?misinformation? on its platform.? SAC ? 61. However,
nowhere in the letter does Rep. Schiff direct Facebook to adopt any specific standard to follow when
it determines what speech constitutes vaccine misinformation or whether particular posts are false
or misleading. Instead, Rep. Schiff?s letter expressed his concern about the existence of ?medically
inaccurate information about vaccines? on Facebook and other social media platforms, and he asked
Facebook for information about whether content that ?provides medically inaccurate information
about vaccines? violates Facebook?s terms of service and what actions Facebook ?currently take[s]
to address misinformation related to vaccines on your platforms? and whether Facebook was
?considering or taking additional actions?? …. None of the general
statements or questions in Representative Schiff?s letter can be interpreted as providing a specific
standard of decision that mandated the particular actions that Facebook took with regard to CHD?s
Facebook page. … Indeed, the Court notes that the SAC alleges that Facebook began censoring
its speech starting on January 15, 2019, which was prior to Rep. Schiff?s letter
And just because Facebook relies on the CDC to figure out what might be mis- or dis-info, doesn’t mean that Facebook magically is a state actor either. It just means that Facebook, of its own free will, relies on what it believes is a credible source of information regarding health information.
Nor does the fact that Facebook directs users to the CDC website for information about
vaccines mean that the CDC has supplied the ?standard of decision? for Facebook?s regulation of
content on its platform. Similarly, simply alleging that Facebook and the CDC are ?working
together? or ?partnering? to curb the spread of ?vaccine misinformation? does not allege that the
specific acts challenged in this lawsuit were made pursuant to a CDC policy. Instead, what CHD has plausibly alleged is that Facebook created its own algorithms and standards for detecting
?vaccine misinformation,? and that in doing so, Facebook may have relied on CDC information
about vaccines to determine what information is ?misinformation.? That is not enough to show that
Facebook?s actions were ?compelled? by any particular CDC ?standard of decision.?
The Rubenfeld-style argument that 230 magically makes Facebook a state actor falls flat on its face. CHD relied on Skinner v. Railway Labor Executives Association, a case that involved railroad regulations that forced private railroad companies to administer blood and urine tests to employees involved in accidents. The “forced” part is kind of key here, as nothing in 230 forces anything. And, unlike CHD’s lawyers, the court actually understood that:
Skinner does not aid CHD. ?Unlike the regulations in Skinner, Section 230 does not require
private entities to do anything, nor does it give the government a right to supervise or obtain
information about private activity.? Divino Grp. LLC v. Google LLC, No. 19-CV-04749-VKD,
2021 WL 51715, at *6 (N.D. Cal. Jan. 6, 2021). In Divino Group, the plaintiffs asserted that the
?the availability of protections under Section 230 of the CDA amounts to government endorsement
of defendants? alleged discrimination,? and thus that YouTube should be considered a state actor.
Judge DeMarchi rejected that contention, stating, ?nothing about Section 230 is coercive? and
?Section 230 reflects a deliberate absence of government involvement in regulating online speech:
?Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and
accordingly, to keep government interference in the medium to a minimum.?? Id. (quoting Batzel
v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003)); see also 47 U.S.C. ? 230(b)(2) (?It is the policy of
the United States . . . to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State regulation.?).
The court held, ?[a]t most, Section 230 provides protection from civil liability for interactive
computer service providers who elect to host information provided by another content provider, or
who in good faith act to restrict materials that the provider or user considers ?obscene, lewd,
lascivious, filthy, excessively violent, harassing, or otherwise objectionable,? regardless of whether
that material is constitutionally protected.? Id. at *7 (quoting 47 U.S.C. ? 230(c)(2)(A)). The Court
agrees with Judge DeMarchi?s analysis and concludes that the immunity provided by Section 230
does not provide sufficient ?encouragement? to convert Facebook?s private acts into state action.
There was also an equally silly trademark claim (Prager U tried this nonsense in its failed case against YouTube). To make this work, CHD argued that Facebook was a “commercial competitor” to itself (what?!?) and that it’s was “promoting competitive products” in pushing people away from CHD’s anti-vax nonsense and towards actual scientific medical information. The court is not buying it.
However, the warning label and fact-checks are not disparaging CHD?s ?goods or services,?
nor are they promoting the ?goods or services? of Facebook, the CDC, or the fact-checking
organizations such as Poynter. In addition, the warning label and fact-checks do not encourage
Facebook users to donate to the CDC, the fact-checking organizations, or any other organization.
Instead, the warning label informs visitors to CHD?s Facebook page that they can visit the CDC
website to obtain ?reliable up-to-date information? about vaccines, and the fact-checks identify that
a post has been fact-checked, with a link to an explanation of why the post/article has been identified
as false or misleading. For example, the Poynter fact-check identified in the SAC consisted of an
explanation of why the title of an article written by third party Collective Evolution and posted to
CHD?s Facebook page was ?false.? Thus, all of the alleged misrepresentations ? the warning label
and the fact-checks ? are simply providing information, albeit information with which CHD
Indeed, CHD expressly equates ?goods? and ?services? with information: CHD argues, ?In
particular, false fact-check labels expressly tout Poynter?s putatively superior information, thus
competing with CHD for donation revenue by actively ?promoting? their competing ?products and
services.?? CHDs Opp?n to Poynter?s Mtn. at 17 (emphasis added). Under CHD?s expansive and
novel theory of false advertising, any Facebook warning label identifying an alternative source of
information and any fact-check with an explanation would constitute false advertising under the
Lanham Act because of an injury to ?messaging.?
The court calls out that this “novel” legal theory of CHD’s is so novel that it can’t cite any precedent to support it:
Unsurprisingly, CHD does not cite any authority for the proposition that its ?messaging?
constitutes ?goods? or ?services? for purposes of the Lanham Act. Nor does CHD cite any support
for its assertion that a defendant can be held liable under the Lanham Act based on speech that is
untethered to the sale of goods or services. To the contrary, courts have held that ?[t]he mere fact
that the parties may compete in the marketplace of ideas is not sufficient to invoke the Lanham Act.?
Farah v. Esquire Mag., 736 F.3d 528, 541 (D.C. Cir. 2013) (emphasis in original). In Farah, the
D.C. Circuit dismissed a Lanham Act claim brought by a book publisher based on a satirical article
posted on Esquire?s politics blog. The court noted that ?Farah and Corsi do not allege that Esquire
is selling or promoting a competing book. Instead, they assert that ?generally? Esquire is their
competitor, and maintain that they too ?write frequently about the birth certificate and ?natural born
citizen? issues,? and that ?readers frequently  read publications that contain ?points? and
?counterpoints.?? Id. The court held these allegations were insufficient to state a claim because they
did not involve commercial speech actionable under the Lanham Act. Id.; see also Bosley, 403 F.3d
at 679 (holding there was no liability under the Lanham Act where an unsatisfied hair transplant
customer used Bosley?s marks for criticism because the customer?s ?use of the Bosley mark [was]
not in connection with a sale of goods or services?it [was] in connection with the expression of his
opinion about Bosley?s goods and services.?); Edward Lewis Tobinick, MD v. Novella, 848 F.3d
935, 950-52 (11th Cir. 2017) (holding author?s blog posts, which contained allegedly false and
defamatory statements about physician?s medical practice, did not constitute commercial speech
subject to the Lanham Act where posts did not propose commercial transactions and where stated
purpose of the blog was to provide objective analysis of questionable or controversial medical
claims); Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1054
(10th Cir. 2008) (dismissing Lanham Act claims against the creators of a parody website that
criticized religious bookstore?s views because ?[u]nless there is a competing good or service labeled
or associated with the plaintiff?s trademark, the concerns of the Lanham Act are not invoked.?)
Also, if you remember my post about the original lawsuit, you’ll remember that there’s a Popehat’s Favorite RICO claim included. Anyway, the judge here does the judicial equivalent of Ken White’s “IT’S NOT RICO, DAMMIT.”
The Court concludes that CHD?s allegations of wire fraud ? both those actually plead in the
SAC and those unpled but asserted in CHD?s opposition briefs ? do not constitute wire fraud because
CHD has not alleged any facts showing that defendants engaged in a fraudulent scheme to obtain
money or property from Facebook visitors to CHD?s page (or anyone else, including CHD)
Assuming arguendo that the various alleged misrepresentations, omissions and acts could constitute
a fraudulent ?scheme,? neither the SAC nor CHD?s oppositions asserts that any Facebook users
actually donated to any other organization, much less donated to another organization because they
were deceived by defendants? scheme. Instead, CHD advances a speculative theory that defendants
engaged in wire fraud by deceiving visitors to CHD?s Facebook page through the ?false? fact-check
labels, diverting those visitors to the websites of other organizations, and that those individuals,
once diverted, may have donated to CHD?s competitors as a result of defendants? deception. CHD?s
theory of wire fraud is unsupported by any factual allegations that ?defendant[s] used the . . . wires
to obtain money or property from the plaintiff or a non-party.? Sugarman, 2020 WL 633596, at *3.
?Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.? Iqbal, 556 U.S. at 678.
The court clearly is not buying the argument’s RFK Jr cooked up:
The cases upon which CHD relies are inapposite and unavailing. CHD argues that a person
could still be guilty of wire fraud even if the money fraudulently obtained went to ?third parties? or
?associates.? See United States v. Sorich, 523 F.3d 702, 709 (7th Cir. 2008) (holding that the
?private gain? criterion of ?honest services mail fraud? ?simply mean[s] illegitimate gain,? which
does not necessarily have to go to defendant, but may instead go to another party); United States v.
Spano, 421 F.3d 599, 603 (7th Cir. 2005) (holding that ?[a] participant in a scheme to defraud is
guilty [of honest services mail fraud] even if he is an altruist and all the benefits of the fraud accrue
to other participants?); United States v. Rezko, No. 05 CR 691, 2007 WL 2904014, at *5 (N.D. Ill.
Oct. 2, 2007) (rejecting the defendant?s argument that indictment for mail and wire fraud was
insufficient because it did not allege defendant personally gained where indictment alleged
defendant?s associates benefitted from fraud). However, CHD has not alleged any facts to establish
that defendants, their associates, or any third party obtained money or property from deceived
Facebook users or from CHD.
IT’S NOT RICO, DAMMIT.
Then the court responds to CHD’s desire to pile on more claims and more evidence, including (I kid you not), wanting to submit evidence from Project Veritas, that bastion of ethical reporting techniques. The court points out that none of the additional information CHD wants to submit would cure the fundamental problem: Facebook gets to decide how to moderate its own damn site and it’s not the government.
As relevant to the Bivens claim against Zuckerberg, none of the proposed new allegations
show that Zuckerberg was personally involved in any decisions regarding CHD?s Facebook page.
Nor do any of the supplemental allegations show any joint action with the federal government with
regard to CHD?s Facebook page. Instead, some of the new allegations mention Robert F. Kennedy,
Jr.?s Instagram account, but Mr. Kennedy is not a plaintiff in this litigation. E-mails between
Zuckerberg and Dr. Fauci about a COVID information ?hub? on Facebook do not relate to any
actions taken regarding CHD?s Facebook page. The allegations about other members of Congress
making statements about the need for social media companies to remove harmful or dangerous
content from their platforms, including ?vaccine misinformation,? or about the possibility of
legislation to remove Section 230 immunity are too general to support a claim of governmental
coercion, as there are no allegations that any public official pressured Facebook to take any specific
actions regarding CHD?s page.
Similarly, none of the proposed supplemental allegations would enable CHD to state claims
under the Lanham Act or RICO. The supplemental allegations do not show that CHD has suffered
an injury within the Lanham Act?s ?zone of interests? or that defendants have engaged in
commercial speech actionable under that statute. Nor do any of the proposed supplemental
allegations establish the elements of wire fraud as is necessary for the RICO claim.
Thus, even if it were true that Facebook ?embarked on a campaign to block speech and
information according to a COVID ?vaccine hesitancy? algorithm regardless of the truth or falsity
of that speech,? CHD?s Mtn. to Further Supplement at 2, those allegations do not address the
necessary elements of any of CHD?s causes of action.
CHD also gets a bit of a benchslap in response to its demands to be able to go on fishing expeditions through Mark Zuckerberg’s communications using (again, I kid you not) the infamous All Writs Act to do so:
CHD argues that its allegations are sufficient at the pleadings stage, and that it should be
permitted to engage in discovery to explore issues such as Zuckerberg?s personal involvement, government contact with Facebook, and whether Facebook users were deceived by the warning label and fact-checks… Similarly,
invoking the All Writs Act, CHD asserts that this is an ?extraordinary? situation where the Court
should lift the stay on discovery and order Facebook to produce unredacted emails between
Zuckerberg and Dr. Fauci about Zuckerberg?s ?offer? to determine if there is any factual support
for CHD?s allegations. However, that is not how federal litigation operates. A plaintiff must
plausibly allege a claim at the pleadings stage in order for the case to proceed
And thus, the case is dismissed without leave to amend. There is still one tiny part of the case that kinda sorta lives on — which is that Science Feedback, a French company that Facebook employs to do some fact-checking, was named as a defendant, but never served. The case against it is also dismissed, but without prejudice, so in theory CHD could try to reinstate that part of the case, but that seems unlikely to (1) work or (2) achieve anything even remotely useful.
Filed Under: 1st amendment, adam schiff, bivens claim, content moderation, jed rubenfeld, rico, robert f. kennedy jr., section 230, state actors, vaccinations
Companies: children's health defense, facebook