Robert F. Kennedy Jr. Ridiculous Lawsuit Against Facebook Gets Tossed Out Of Court

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 reducethe spread of health or vaccine misinformation, or to promote universal vaccination do not showthat the government was a joint participant in the challenged activity," specifically the decision toput 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 reliesupon is contained in Paragraph 52 of the SAC, which alleges, Zuckerberg has stated publicly thatFacebook is working with both the CDC and the WHO: We work with the [Centers for DiseaseControl and Prevention] and we work with [the World Health Organization] and trusted healthorganizations to remove clear misinformation about health-related issues that could cause animminent risk of harm.'".... This statement (and similar general statements by Zuckerberg,Facebook, the CDC, or other entities within the federal government about working to removemisinformation") does not support the inference that Facebook (or Zuckerberg) worked in concertwith the CDC to censor CHD's speech, retaliate against CHD, or otherwise violate CHD'sconstitutional rights.

Schiff's letter also fails to magically turn Facebook into a state actor:

Relying on Congressman Schiff's February 2019 letter toZuckerberg, CHD contends that Congressman Schiff provided a substantive standard - deferenceto CDC/WHO pronouncements conclusively presumed to be authoritative' - by which Facebookshould 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 whenit determines what speech constitutes vaccine misinformation or whether particular posts are falseor misleading. Instead, Rep. Schiff's letter expressed his concern about the existence of medicallyinaccurate information about vaccines" on Facebook and other social media platforms, and he askedFacebook for information about whether content that provides medically inaccurate informationabout 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 wasconsidering or taking additional actions?" .... None of the generalstatements or questions in Representative Schiff's letter can be interpreted as providing a specificstandard of decision that mandated the particular actions that Facebook took with regard to CHD'sFacebook page. ... Indeed, the Court notes that the SAC alleges that Facebook began censoringits 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 aboutvaccines mean that the CDC has supplied the standard of decision" for Facebook's regulation ofcontent on its platform. Similarly, simply alleging that Facebook and the CDC are workingtogether" or partnering" to curb the spread of vaccine misinformation" does not allege that thespecific 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 detectingvaccine misinformation," and that in doing so, Facebook may have relied on CDC informationabout vaccines to determine what information is misinformation." That is not enough to show thatFacebook'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 requireprivate entities to do anything, nor does it give the government a right to supervise or obtaininformation 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 thethe availability of protections under Section 230 of the CDA amounts to government endorsementof 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" andSection 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, andaccordingly, to keep government interference in the medium to a minimum.'" Id. (quoting Batzelv. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003)); see also 47 U.S.C. 230(b)(2) (It is the policy ofthe United States . . . to preserve the vibrant and competitive free market that presently exists forthe 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 interactivecomputer service providers who elect to host information provided by another content provider, orwho 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 whetherthat material is constitutionally protected." Id. at *7 (quoting 47 U.S.C. 230(c)(2)(A)). The Courtagrees with Judge DeMarchi's analysis and concludes that the immunity provided by Section 230does 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-checkingorganizations such as Poynter. In addition, the warning label and fact-checks do not encourageFacebook 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 CDCwebsite to obtain reliable up-to-date information" about vaccines, and the fact-checks identify thata post has been fact-checked, with a link to an explanation of why the post/article has been identifiedas false or misleading. For example, the Poynter fact-check identified in the SAC consisted of anexplanation of why the title of an article written by third party Collective Evolution and posted toCHD's Facebook page was false." Thus, all of the alleged misrepresentations - the warning labeland the fact-checks - are simply providing information, albeit information with which CHDdisagrees.

Indeed, CHD expressly equates goods" and services" with information: CHD argues, Inparticular, false fact-check labels expressly tout Poynter's putatively superior information, thuscompeting with CHD for donation revenue by actively promoting' their competing products andservices.'" CHDs Opp'n to Poynter's Mtn. at 17 (emphasis added). Under CHD's expansive andnovel theory of false advertising, any Facebook warning label identifying an alternative source ofinformation and any fact-check with an explanation would constitute false advertising under theLanham 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 supportfor its assertion that a defendant can be held liable under the Lanham Act based on speech that isuntethered to the sale of goods or services. To the contrary, courts have held that [t]he mere factthat 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, theD.C. Circuit dismissed a Lanham Act claim brought by a book publisher based on a satirical articleposted on Esquire's politics blog. The court noted that Farah and Corsi do not allege that Esquireis selling or promoting a competing book. Instead, they assert that generally' Esquire is theircompetitor, and maintain that they too write frequently about the birth certificate and natural borncitizen' issues,' and that readers frequently [] read publications that contain points' andcounterpoints.'" Id. The court held these allegations were insufficient to state a claim because theydid not involve commercial speech actionable under the Lanham Act. Id.; see also Bosley, 403 F.3dat 679 (holding there was no liability under the Lanham Act where an unsatisfied hair transplantcustomer 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 hisopinion about Bosley's goods and services."); Edward Lewis Tobinick, MD v. Novella, 848 F.3d935, 950-52 (11th Cir. 2017) (holding author's blog posts, which contained allegedly false anddefamatory statements about physician's medical practice, did not constitute commercial speechsubject to the Lanham Act where posts did not propose commercial transactions and where statedpurpose of the blog was to provide objective analysis of questionable or controversial medicalclaims); 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 thatcriticized religious bookstore's views because [u]nless there is a competing good or service labeledor 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 theSAC and those unpled but asserted in CHD's opposition briefs - do not constitute wire fraud becauseCHD has not alleged any facts showing that defendants engaged in a fraudulent scheme to obtainmoney 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 constitutea fraudulent scheme," neither the SAC nor CHD's oppositions asserts that any Facebook usersactually donated to any other organization, much less donated to another organization because theywere deceived by defendants' scheme. Instead, CHD advances a speculative theory that defendantsengaged in wire fraud by deceiving visitors to CHD's Facebook page through the false" fact-checklabels, 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'stheory of wire fraud is unsupported by any factual allegations that defendant[s] used the . . . wiresto 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 personcould still be guilty of wire fraud even if the money fraudulently obtained went to third parties" orassociates." 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," whichdoes 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 isguilty [of honest services mail fraud] even if he is an altruist and all the benefits of the fraud accrueto 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 wasinsufficient because it did not allege defendant personally gained where indictment allegeddefendant's associates benefitted from fraud). However, CHD has not alleged any facts to establishthat defendants, their associates, or any third party obtained money or property from deceivedFacebook 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 allegationsshow 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 withregard 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 betweenZuckerberg and Dr. Fauci about a COVID information hub" on Facebook do not relate to anyactions taken regarding CHD's Facebook page. The allegations about other members of Congressmaking statements about the need for social media companies to remove harmful or dangerouscontent from their platforms, including vaccine misinformation," or about the possibility oflegislation to remove Section 230 immunity are too general to support a claim of governmentalcoercion, as there are no allegations that any public official pressured Facebook to take any specificactions regarding CHD's page.

Similarly, none of the proposed supplemental allegations would enable CHD to state claimsunder the Lanham Act or RICO. The supplemental allegations do not show that CHD has sufferedan injury within the Lanham Act's zone of interests" or that defendants have engaged incommercial speech actionable under that statute. Nor do any of the proposed supplementalallegations 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 andinformation according to a COVID vaccine hesitancy' algorithm regardless of the truth or falsityof that speech," CHD's Mtn. to Further Supplement at 2, those allegations do not address thenecessary 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 bepermitted 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 Courtshould lift the stay on discovery and order Facebook to produce unredacted emails betweenZuckerberg and Dr. Fauci about Zuckerberg's offer" to determine if there is any factual supportfor CHD's allegations. However, that is not how federal litigation operates. A plaintiff mustplausibly 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.