Children's Health Def. v. Facebook Inc.

546 F.Supp.3d 909

CHILDREN'S HEALTH DEFENSE, Plaintiff,

v.FACEBOOK INC., et al., Defendants.

Case No. 20-cv-05787-SI

United States District Court, N.D. California.

Signed June 29, 2021

Roger Ian Teich, San Francisco, CA, Jed Rubenfeld, Pro Hac Vice, New Haven, CT, Mary Susan Holland, Pro Hac Vice, Children's Health Defense, Peachtree, GA, Robert Francis Kennedy, Jr., Pro Hac Vice, Children's Health Defense, Peachtree City, GA, for Plaintiff.

Sonal N. Mehta, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, CA, Allison Schultz, Pro Hac Vice, Ari Holtzblatt, Pro Hac Vice, Molly Maureen Jennings, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, for Defendants Facebook Inc., Mark Zuckerberg.

Kevin Lester Vick, Elizabeth Holland Baldridge, Jassy Vick Carolan LLP, Los Angeles, CA, Carol Jean LoCicero, Pro Hac Vice, Mark Richard Caramanica, Pro Hac Vice, Thomas LoCicero PL, Tampa, FL, Daniela B. Abratt, Pro Hac Vice, Thomas LoCicero PL, Fort Lauderdale, FL, for Defendant The Poynter Institute for Media Studies, Inc.

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS SECOND AMENDED COMPLAINT, DENYING PLAINTIFF'S MOTION TO SUPPLEMENT AND DENYING LEAVE TO AMEND

Re: Dkt. Nos. 68, 69, 75, 76, 103

SUSAN ILLSTON, United States District Judge

On May 5, 2021, the Court held a hearing on defendants’ motions to dismiss the second amended complaint and plaintiff's motion to supplement the complaint. After the hearing, plaintiff filed a request for judicial notice and another motion to further supplement the second amended complaint and for in camera inspection under the All Writs Act.

For the reasons set forth below, the Court GRANTS the motions to dismiss without leave to amend, GRANTS the request for judicial notice, DENIES the motions to supplement the second amended complaint as futile and DENIES the motion for an in camera inspection.

INTRODUCTION

On August 17, 2020, plaintiff Children's Health Defense ("CHD") filed this lawsuit against defendants Facebook, Inc. ("Facebook"), Facebook CEO Mark Zuckerberg ("Zuckerberg"), The Poynter Institute for Media Studies, Inc. ("Poynter"), and Science Feedback¹ alleging four causes of action: (1) violation of the First and Fifth Amendments pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; (2) false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a) ; (3) violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c), 1964(c) ; and (4) declaratory relief.

CHD operates a social media page on Facebook's platform. CHD posts articles and opinion pieces about the harms of vaccines, including COVID-19 vaccines, as well as the dangers of pesticides and wireless technologies such as 5G. CHD alleges that the United States government — through Congressman Adam Schiff, the Centers for Disease Control ("CDC"), and the World Health Organization ("WHO"), as the CDC's "proxy" — has "privatized" the First Amendment by "teaming up" with Facebook to censor CHD's vaccine safety speech. Second Amended Compl. ("SAC") ¶ 1, Dkt. No. 65-1. CHD alleges that defendants have implemented this campaign by "purporting to flag misinformation" by identifying certain information on CHD's Facebook page as "false" or "misleading" when that information is, in fact, "valid and truthful," and through the posting of a Facebook advisory comment that is affixed to CHD's Facebook page which informs visitors that they can visit CDC.gov to obtain information about vaccines. Id. CHD alleges that Facebook, Zuckerberg, and the fact-checking organizations have engaged in a "smear campaign" and "multiple acts of fraud and deception in furtherance of their aggressive and heavy-handed campaign of censorship against Plaintiff's Facebook page" with the purpose of "stigmatizing CHD and its content regarding vaccines, and discouraging users from accessing this content." Id. ¶ 4.

CHD alleges it has suffered monetary and reputational harm, and CHD seeks damages and declaratory and injunctive relief, including an order directing Facebook to "remove its warning labels and misclassification of all content on [CHD's] Facebook page, and to desist from any further warnings or classifications" and an order "requiring defendants to make a public retraction of their false statements." Id. Prayer for Relief.

BACKGROUND

The following facts are drawn from the SAC.² Plaintiff CHD is a not-for-profit "child health protection and advocacy group" incorporated under the laws of the State of Georgia. Id. ¶¶ 14, 25. CHD is an "advocate for complete candor as to the risks of environmental toxins, vaccines, 5G and wireless networks, and the conflicts of interest that have compromised government oversight of those products and services." Id. ¶ 6. CHD operates the website, https://childrenshealthdefense.org, where it publishes research articles and opinion pieces. Id. ¶ 15. CHD receives all of its financial support from contributions, membership fees, and gross receipts from activities related to its tax-exempt functions. Id. Robert F. Kennedy, Jr. founded and leads CHD. Id. ¶ 14.

Defendant Facebook, Inc. is a Delaware corporation with its principal place of business in Menlo Park, California. Id. ¶ 16. Facebook operates an online social media and social networking platform on which users like CHD can gather, advocate, and fundraise. Id. Facebook users’ utilization of Facebook is governed by Facebook's Terms of Service that, if violated, may result in the deletion of users’ Facebook account and pages. Id. ¶¶ 36-39. Facebook's Terms of Service "permit it to ‘detect misuse of [its] Products, harmful conduct towards others and situations where [it] may be able to help support or protect [its] community.’ Facebook retains limited rights, e.g., ‘offering help, removing content, blocking access to certain features, disabling an account or contacting law enforcement[.] [and] shar[ing] data with other Facebook companies when [it] detect[s] misuse or harmful conduct[.]’ " Id. ¶ 37 (citing Terms ¶¶ 1, 3(2)(3)).

Defendant Mark Zuckerberg is a co-founder of Facebook and serves as Facebook's chairman, CEO, and controlling shareholder. Id. ¶ 17. In December 2015, Zuckerberg and his wife, Dr. Priscilla Chan, co-founded the Chan Zuckerberg Initiative ("CZI") to "donate" 99 percent of their Facebook shares in an effort to "develop new drugs, diagnostic tests and vaccines." Id. ¶ 281. Plaintiff alleges that both Zuckerberg and Facebook have significant financial interests in the vaccines programs that CHD warns against. Id. ¶¶ 274-91.

Defendant The Poynter Institute for Media Studies, Inc. ("Poynter") is a Florida non-profit organization. Id. ¶ 21. Poynter also operates a branded news fact-checking service, PolitiFact. Id. PolitiFact contracts with social media companies, such as Facebook, to fact-check content shared on social media platforms. Id. The SAC also alleges that International Fact-Checking Network ("IFCN"), a unit of Poynter, certifies Facebook's fact-checking "partners," including Science Feedback. Id. ¶¶ 105-06, 109.

On February 14, 2019, Congressman Adam Schiff, identifying himself as "a Member of Congress who is deeply concerned about declining vaccination rates around the nation," wrote a public letter addressed to Zuckerberg. Id. ¶ 60. In that letter, Rep. Schiff "urge[ ] that Facebook implement specific algorithms to identify, censor and remove all so-called ‘vaccine misinformation.’ " Id. Because the SAC repeatedly quotes portions of this letter, the Court has reproduced the entirety of the letter here:

February 14, 2019

Mark ZuckerbergChairman and Chief Executive OfficerFacebook Inc.1 Hacker WayMenlo Park, CA 94025

Dear, Mr. Zuckerberg:

As more Americans use the Internet and social media platforms as their primary source of information, it is important that we explore the quality of the information that they receive, particularly on issues that directly impact the health and well-being of Americans, as well as the billions who use your site around the world. Accordingly, I am writing out of my concern that Facebook and Instagram are surfacing and recommending messages that discourage parents from vaccinating their children, a direct threat to public health, and reversing progress made in tackling vaccine-preventable diseases.

The scientific and medical communities are in overwhelming consensus that vaccines are both effective and safe. There is no evidence to suggest that vaccines cause life-threatening or disabling diseases, and the dissemination of unfounded and debunked theories about the dangers of vaccinations pose a great risk to public health. In fact, the World Health Organization listed vaccine hesitancy – the reluctance or refusal to vaccinate despite the availability of vaccines – as one of the top threats to global health in 2019. In a dramatic demonstration of the dangers, Washington state declared a public health emergency due to a measles epidemic in Clark County, signaling the resurgence of a potentially fatal disease that was effectively eliminated from the United States decades ago by vaccines.

There is strong evidence to suggest that at least part of the source of this trend is the degree to which medically inaccurate information about vaccines surface on the websites where many Americans get their information, among them Facebook and Instagram. As I have discussed with you in other contexts, and as you have acknowledged, the algorithms which power these services are not designed to distinguish quality information from misinformation or misleading information, and the consequences of that are particularly troubling for public health issues. I acknowledge that it may not always be a simple matter to determine when information is medically accurate, nor do we ask that your platform engage in the practice of medicine, but if a concerned parent consistently sees information in their Newsfeed that casts doubt on

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