Robert Kennedy, Jr. on behalf of the Children’s Health Defense charity (CHD), has sued Facebook alleging, inter alia, that Facebook has violated its First Amendment right to free speech. CHD provided information on Facebook revealing the dangers of vaccines. Facebook removed the CHD Facebook page and libeled CHD by claiming that it was removed because the information provided by CHD was false.
There were other legal claims, but I will focus on the First Amendment claim. The first hurdle that Kennedy faced was that he was suing a private party for a constitutional violation. The First Amendment to the U.S. Constitution is a limit only on government conduct, not private conduct. The only way to sue a private party under for a First Amendment violation is to establish that the private party is acting on behalf of the government. Kennedy did a masterful job of establishing those facts. In paragraph 172 and 175 of his complaint, Kennedy states:
172. Plaintiff seeks an implied private damages remedy against private defendants who act jointly or in concert with federal government agencies or actors to deny Plaintiff’s First Amendment speech and Fifth Amendment property rights. Davis v. Passman, 442 U.S. 228 (1979) (implied damages remedy under Fifth Amendment Due Process Clause); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (Fourth Amendment). The private cause of action is implied under 28 U.S.C. § 1331 to vindicate constitutional rights which would otherwise go unredressed. By analogy to 42 U.S.C. § 1983, Plaintiff must show both (1) the deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of [federal] law. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
175. Defendants’ deprivation of Plaintiff’s federal rights is “fairly attributable” to the government, Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982), as it was taken with significant encouragement from, and in close consultation with, governmental agencies and actors. Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002). Ultimately, joint action exists when the government has “‘so far insinuated itself into a position of interdependence with [the private entity] that it must be recognized as a joint participant in the challenged activity.’” Gorenc v. Salt River Project Agric. Improvement & Power Dist., 869 F.2d 503, 507 (9th Cir. 1989) (emphases added). Defendants’ misconduct is a far cry from “merely hosting speech by others.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019); Fed. Agency of News LLC v. Facebook, Inc. 2020 U.S. Dist. LEXIS 6159, *26 (N.D. Cal. 2020).
How did the government work in concert with Facebook? Kennedy summarizes the facts in paragraph 177, wherein Kennedy was able to establish that indeed Facebook was acting in concert with the government to limit the free speech of CHD.
177. Facebook willfully participated in joint action with Rep. Schiff, CDC and/or WHO officials or their agents to “police” CDC and WHO policies through Facebook’s signature algorithms and machine learning to define, identify, label as “false news” and/or censor Plaintiff’s speech with respect to vaccine-related speech. For Bivens purposes, the WHO must be recognized as a public entity, particularly when its charter requires official consent for its involvement with Facebook.
Kennedy reveals in “February 2019, Democratic Congressman Adam Schiff (D-CA) threatened to introduce legislation to remove Facebook’s immunity under Section 230 of the Communications Decency Act [CDA] unless Facebook implemented algorithms to ‘distinguish’ and suppress ‘vaccine misinformation’ and advertising.” On February 14, 2019, Rep. Schiff sent a letter to Facebook founder Mark Zuckerberg demanding to know “[w]hat action(s) do you currently take to address misinformation related to vaccines on your platforms? Are you considering or taking additional actions?” Kennedy explains in paragraph 181:
181. Rep. Schiff also acted “under color of federal law” in issuing his pointed request to Facebook to censor and remove “vaccine misinformation” from its platform. Thus, Rep. Schiff’s conditional notice to remove Facebook’s Section 230 immunity also constitutes “significant encouragement, either overt or covert, that the [private actor’s] choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
Kennedy explains that the CDA as it stands now should not offer any protection to Facebook. Recall that the CDA is the very statute that Rep. Schiff threatened he would seek to amend to remove coverage for Facebook if it did not censor anti-vaccination information. In paragraphs 219 and 220 of his complaint, Kennedy makes the persuasive argument against applying the CDA to Facebook as it presently sits.
219. The Communications Decency Act (CDA) states: “No provider or user of an interactive computer shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The affirmative defense of Section 230 immunity has been broadly construed as to information provided by third parties and hosted on Facebook. However, if an entity is “responsible, in whole or in part, for the creation or development of information” that forms the subject matter of the lawsuit, it is itself a content provider and is not protected. 47 U.S.C. § 230(f)(3).
220. In publishing its false “warning label” and “fact-checks,” Facebook has acted, and continues to act, both as an interactive computer service provider and as “content provider.” Section 230(f)(3) defines an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Under Ninth Circuit law, as to content that a website service provider creates itself, or is responsible in whole or in part for creating or developing, the website is also a content provider. Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (en banc); Fraley v. Facebook, 830 F. Supp. 2d at 801-02. Under the CDA, 47 U.S.C. § 230(f)(3), Facebook’s warning label and its other affirmative content-creation far exceed “a publisher’s traditional editorial functions,” Batzel v. Smith, 333 F.3d 1018, 1031 n.18 (9th Cir. 2003), and far exceed that content-creation of question-and-answer-sets which the Ninth Circuit found sufficient in the Roommates.com case. See, e.g., Roommates.com, 521 F.3d at 1163 (Congress did not seek to immunize “the creation of content.”) (emphasis added). Facebook has no immunity from liability for actionable harms arising from its fraudulent course of conduct.
Thus, Kenndey argues persuasively that the libelous statements by Facebook about CHD is affirmative information provided by Facebook and thus Facebook is an information provider who should be held liable for the false and libelous information posted by Facebook on Facebook. Such libelous and false statements about another that materially injures him as he engages in interstate commerce is a violation of a federal law known as the Lanham Act. See 15 U.S.C. § 1125(a)(1)(B). Kennedy alleged that Facebook libeled CHD’s in order to deter CHD’s “followers and other consumers from listening to, trusting, and relying on Plaintiff’s content, and donating or contributing to” CHD in violation of the Lanham Act. In paragraph 207 of his complaint, Kennedy argues the following:
207. Facebook’s warning label on CHD’s page states a classic imputation of CHD’s dishonesty in dealing with its users, and a lack of integrity about its trade in the sphere in which it operates. That is how third-party readers understand it and, as such, it is falsely disparaging under the Lanham Act. Defendants are liable for what is insinuated, as well as for what is stated explicitly. MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 547 (1959). Further, the determinative question is whether the ‘gist or sting’ of the statement is true or false, benign or defamatory, in substance. Ringler Associates, Inc. v. Maryland Casualty Co., 80 Cal. App.4th 1165, 1182 (2000). A statement is deemed false if it “would have a different effect on the mind of the reader (or viewer) from that which the pleaded truth would have produced.” Metabolife Int’l Inc. v. Wornick, 264 F.3d 832, 849 (9th Cir. 2001) (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. at 517). Facebook’s warning label is “reasonably susceptible of an interpretation which implies a provably false assertion of fact,” Couch v. San Juan Unified Sch. Dist., 33 Cal. App. 4th 1491 (1995); Dodds v. Am. Broad. Co., 145 F.3d 1053, 1063-64 (9th Cir. 1998). Here, the conclusion that CHD’s vaccine-related information is “unreliable and out-of-date” is sufficiently factual to be verifiable as true or false, Milkovich v. Lorain Journal Co., 497 U.S. at 19, and indeed, it is false. See also Manufactured Home Communities, Inc. v. County of San Diego, 544 F.3d 959, 964 (9th Cir. 2008) (defendant’s statements that accused Plaintiff of lying without expressly disclosing a factual basis for the statements could be defamatory).
Facebook forwards those visiting the former CHD Facebook page to the CDC. Accompanying the forwarding information is the defamatory assertion that the CHD information is false. A little known fact that Kennedy reveals in his complaint is that “[i]n 2019 alone, the CDC entered into contracts to purchase and distribute up to $5.1 billion of the three leading manufacturers’ vaccine products.” The CDC is hardly an objective arbiter of vaccine safety. Kennedy quotes a Washington Poster article that reveals “[s]pending on Facebook mobile ads alone by pharmaceutical and health-care brands reached nearly a billion dollars in 2019.” Indeed, advertising is how Facebook makes money; 98% of Facebook’s revenue is generated through advertising. What we find is that both the CDC and Facebook have a financial interest in suppressing information about the harmful effects of vaccines.