A friend-of-the-court brief filed late last week backs non-profit Children’s Health Defense (CHD) in an appeal to the Ninth Circuit over the dismissal of its censorship complaint against Facebook Inc., its CEO, the Poynter Institute for Media Studies Inc., and Science Feedback. The Rutherford Institute, a constitutional rights advocacy organization that provides pro-bono services, argues that the district court erred in dismissing CHD’s freedom of expression and takings clause claims.
The case originated in August 2020 when CHD, chaired by anti-vaccine advocate Robert F. Kennedy Jr., filed suit over the alleged censorship of its posts about vaccines and 5G networks. As previously reported, Facebook and co-defendant Poynter, a third-party fact-checker, allegedly added a label to CHD’s page identifying it as one that posts about vaccines, and there with, a link to the Centers for Disease Control and Prevention’s (CDC) website.
In addition, the social media platform reportedly blocked the group from fundraising online, and overlaid a warning on the preview of its page stating that it contained false information per the fact checkers’ review. According to the complaint, this reduced traffic to CHD’s webpage by 95%.
The trial court granted the defendants’ motion to dismiss, ruling that CHD’s constitutional allegations were inapplicable to private entities and that the complaint also failed to show that the defendants’ conduct constituted state action. Judge Susan Illston also dismissed the plaintiff’s Lanham Act claim contesting Facebook’s advisory labels as false advertising and its Racketeer Influenced and Corrupt Organizations Act claim.
CHD appealed and on October 28, submitted its opening brief. Therein, CHD argues that “Facebook has adopted a policy of censoring all speech challenging governmental orthodoxy on COVID and vaccine safety.”
For its part, the Rutherford Institute argues that the district court misapplied the dismissal standard as to CHD’s constitutional claims. Whether Facebook’s actions constituted state action “is a fact-bound inquiry,” that CHD proved under Rule 12(b)(6), the filing says. Facts in the complaint sufficiently allege that actions Facebook took to suppress content casting doubt on the efficacy of vaccines due to congressional pressure were de facto state acts.
“The gravamen, and indeed the literal pleading of CHD’s Second Amended Complaint is that the federal government, through multiple government officials and actors, including but not limited to Congressman Adam Schiff, directed, instructed, encouraged and compelled Facebook to censor the content of CHD expressly because the government did not want any viewpoints contrary to its own on the efficacy of vaccinations in general and COVID-19 vaccinations in particular,” the brief said. As such, the amicus alleged that under the applicable totality of the circumstances test, the pleading should survive dismissal.
The Rutherford Institute is represented by its own counsel, as is CHD. Poynter is represented by Jassy Vick Carolan LLP and Thomas & Locicero PL, and Facebook by Wilmer Cutler Pickering Hale and Dorr.