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

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 constitutional rights.

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 disagrees.

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

Ninth Circuit Says Washington Man Can Continue To Sue CBP Agent For First, Fourth Amendment Violations

from the stock-up-on-the-redress-while-you-can! dept

The Ninth Circuit Court of Appeals continues to do what other circuits far too often won't: protect citizens from their government. The Ninth Circuit is the best place to bring allegations of rights violations. It only grants immunity in 42% of cases it handles, compared to the Fifth Circuit, where cops and their qualified immunity triumph 64% of the time.

This seems to irritate the Supreme Court, which often finds itself overturning decisions bubbling up from the Ninth. But every win for Americans is another chance to establish precedent making it easier for future victims to obtain redress from courts anywhere in the nation.

This recent decision [PDF] by the Ninth will probably once again raise the hackles of the Supreme Court. This one allows a plaintiff to sue federal officers for rights violations -- something the Supreme Court has repeatedly made more difficult to accomplish. In 2017, the Supreme Court said non-US persons couldn't sue federal officers for violating their rights. It reinforced this decision in 2019, rejecting a lawsuit brought by the family of a Mexican teen who was shot ten times by a Border Patrol agent in response to some alleged rock throwing. The Border Patrol agent was on the US side of the border. His bullets traveled across the border and into the Mexican teen, killing him in Mexico. The Supreme Court shrugged and said it was unfortunate the teen died where he did. If he had only managed to die on the US side of the border, he might have had a case.

This case doesn't end in death. But it does involve federal border security and violated rights. Here's the summary of the events leading to the lawsuit:

[Robert] Boule is a United States citizen. He owns, operates, and lives in a small bed and breakfast inn in Blaine, Washington. The back property line of the land on which the inn is located touches the United States-Canada border. On March 20, 2014, Customs and Border Patrol Agent Erik Egbert stopped Boule while he was running errands “in town” and asked him about guests staying at the inn. Boule told Egbert that he had a guest arriving that day from New York who had flown in from Turkey the day before. Boule told him that two of his employees were en route to pick up the guest at SeattleTacoma (“Sea-Tac”) International Airport, about 125 miles south of Blaine. Later that day, Egbert waited in his border patrol vehicle near the inn. The entrance to the inn is on a road at the front of the property. When the guest arrived, Egbert followed the car carrying the arriving guest into Boule’s driveway.

Egbert got out of his vehicle and approached the car. From the front porch of the inn, Boule asked Egbert to leave. When Egbert refused, Boule stepped between Egbert and the car and again asked him to leave. Boule recounts that Egbert then shoved him against the car. When Boule still did not move away from the car, Egbert grabbed him and pushed him aside and onto the ground.

Egbert then opened the car door and asked the guest about his immigration status. Boule made a 911 call to request a supervisor, which Egbert also relayed over dispatch. A supervisor and another agent arrived in response to the call. After concluding that the guest was lawfully in the country, the three officers departed. Boule later sought medical treatment for injuries to his back.

That's the Fourth Amendment violation. There's also a First Amendment violation.

After Boule complained to Egbert’s superiors about the incident, Egbert retaliated against Boule. Among other things, Egbert contacted the Internal Revenue Service, asking the agency to look into Boule’s tax status.

Bringing a Bivens case against a federal officer is tricky. Federal officers are given an extra level of protection from lawsuits. Qualified immunity is pretty tough to dodge, given the reliance on (ever-decreasing) precedential rulings declaring specific actions to be rights violations. In the federal context, the small crack in the immunity door disappears almost completely. More matching specifics are needed to move a case past the immunity roadblock and only certain rights violations are recognized in the Bivens context.

Here's how the Supreme Court sees it: allegations that fall into this broad set of variances may be considered "new" and an impermissible extension of Bivens.

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one . . . [:] A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Good luck with that, plaintiffs. But this plaintiff's case will move on, greatly aided by the fact that he's a US citizen. Unlike the cases cited by the government, Boule is a legal resident of the United States. There's only one factor that separates this from other successful Bivens lawsuits, the court points out.

The claim against Egbert is a conventional Fourth Amendment claim, indistinguishable from countless such claims brought against federal, state, and local law enforcement officials, except for the fact that Egbert is a border patrol agent.

The court says the fact that Egbert is a border patrol agent does not excuse him from this lawsuit, even if a comparable case involved an FBI agent. The plaintiff can continue suing Egbert over his Fourth Amendment violations.

But the court goes further, extending Bivens to cover both the Fourth Amendment violation and an alleged First Amendment violation.

Boule also alleges that Egbert retaliated against him for exercising his First Amendment right to complain to Egbert’s superiors about his conduct at the inn. We have previously recognized a Bivens claim in the First Amendment context, see Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986), but the Supreme Court has not yet done so.

[...]

However, we find no special factors that counsel hesitation in extending a Bivens remedy to this new context. There is even less reason to hesitate in extending Bivens here than in the context of Boule’s Fourth Amendment claim. Retaliation is a well-established First Amendment claim, available against governmental officers in general.

And, while Egbert may find a way to prevail on the Fourth Amendment allegations by discussing the latitude granted to him as a nominal securer of the nation, he's going to have to get really creative to explain why he decided to retaliate against a citizen's protected speech.

With respect to [the Fourth Amendment] claim, Egbert can legitimately argue that his actions at the inn were performed in connection with his official duties. He cannot say the same thing here, for his retaliation had no relation to, or justification based on, his duties as a border patrol agent.

This ruling increases the chances of success in lawsuits brought against federal agents and officers, and expands the minimal coverage to include rights violations that haven't previously been addressed in this circuit. But, because it does this, there's no chance this won't be appealed. The Supreme Court doesn't like lower courts expanding the narrow Bivens confines, so this has a good chance of getting overturned if the top court picks it up. Until then, it's still a win for Boule and other US citizens. And maybe this win will remain on the books if the Supreme Court feels it's been cutting the government way too much slack in cases like these.

Filed Under: 1st amendment, 4th amendment, 9th circuit, bivens claim, border patrol, cbp, erik egbert, qualified immunity, robert boule, washington