Children's Health Defense v. Meta Platforms, Inc.

112 F.4th 742

CHILDREN'S HEALTH DEFENSE, a Georgia non-profit organization, Plaintiff-Appellant, v. META PLATFORMS, INC., a Delaware corporation; Mark Zuckerberg, a California resident; The Poynter Institute for Media Studies, Inc., a Florida corporation; Science Feedback, a French corporation, Defendants-Appellees.

No. 21-16210

United States Court of Appeals, Ninth Circuit

Argued and Submitted May 17, 2022 Pasadena, California

Filed August 9, 2024

Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding, D.C. No. 3:20-cv-05787-SI Jed Rubenfeld (argued), Yale Law School, New Haven, Connecticut; Robert F. Kennedy Jr. (argued) and Mary S. Holland, Children's Health Defense, Peachtree City, Georgia; Roger I. Teich, Roger Teich, San Francisco, California; for Plaintiff-Appellant.

Sonal N. Mehta (argued), Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California; Ari Holtzblatt, Molly M. Jennings, Allison Schultz, and Spencer Todd, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Mark R. Caramanica (argued), Daniela Abratt-Cohen, and Carol J. LoCicero, Thomas & LoCicero PL, Tampa, Florida; Elizabeth H. Baldridge, Jenner & Block LLP, Los Angeles, California; Kevin L. Vick, Jassy Vick Carolan LLP, Los Angeles, California; for Defendants-Appellees.

John W. Whitehead, The Rutherford Institute, Charlottesville, Virginia; for Amicus Curiae Rutherford Institute.

Before: Eric D. Miller and Daniel P. Collins, Circuit Judges, and Edward R. Korman,^* District Judge.

Opinion by Judge Miller;

Partial Concurrence and Partial Dissent by Judge Collins

OPINION

MILLER, Circuit Judge:

Children's Health Defense (CHD) is a nonprofit advocacy organization dedicated to educating the public about what it sees as the dangers of vaccines. The organization regularly shares articles and videos on its Facebook page, but since 2019, Meta Platforms, Inc., the operator of Facebook, has restricted CHD's ability to do so, including by adding warning labels to alert users that, in Meta's view, the information that CHD shares is not accurate.

Believing that Meta was censoring its speech at the direction of the federal government, CHD brought this action against Meta; Mark Zuckerberg, Meta's CEO; and the Poynter Institute and Science Feedback, both of which contract with Meta to evaluate the accuracy of some Facebook content. It asserted claims under the First and Fifth Amendments as well as the Lanham Act, 15 U.S.C. § 1125(a), and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962. The district court dismissed the complaint. We affirm.

I

Because this is an appeal from an order granting a motion to dismiss, we assume the truth of the facts alleged in the operative complaint—here, CHD's second amended complaint. Ellis v. Salt River Project Agric. Improvement & Power Dist., 24 F.4th 1262, 1266 (9th Cir. 2022). After filing that complaint, CHD moved to "supplement" it with additional allegations, filed a motion for judicial notice that contained further allegations, and then moved to "further supplement" the complaint. The district court denied CHD leave to amend the complaint but considered the allegations within CHD's motions "as a further proffer of how CHD would amend the complaint if given leave to do so." We have likewise considered those allegations, and they are reflected in the description of the facts set out below.

CHD describes itself as an organization that seeks "to provide the public with timely and accurate vaccine and 5G and wireless technology safety information." To that end, CHD publishes articles and opinion pieces on its eponymous website and on its Facebook page. Those writings often describe purported links between vaccinations and various illnesses. CHD has posted articles that it claims show that "[u]nvaccinated kids are healthier" than their vaccinated counterparts. Sometimes, CHD posts messages from its founder, Robert F. Kennedy, Jr., in which he criticizes Dr. Anthony Fauci and Bill Gates and their efforts to encourage vaccinations.

Although public discussion of vaccines has taken on a new dimension as a result of the COVID-19 pandemic, some lawmakers have expressed concern about the proliferation of "vaccine misinformation" on social media platforms for several years. In February 2019, Representative Adam Schiff of California sent a public letter to Zuckerberg, asking (1) whether "medically inaccurate information" violated Facebook's terms of service; (2) what steps Facebook took to address "misinformation related to vaccines" and whether it planned to take additional steps; (3) whether Facebook allowed anti-vaccine activists and organizations to advertise on its platform; and (4) what steps Facebook took to prevent its algorithm from recommending anti-vaccine content to users. After COVID-19 vaccines became widely available, some lawmakers expressed renewed concern that social media companies like Meta were not doing enough to slow the spread of false information about the virus and vaccines. For example, Senator Amy Klobuchar of Minnesota wrote to Zuckerberg, stating that Facebook's "policies must be strictly enforced to limit users' exposure to misinformation" and urging him to "take action against people that are spreading content that can harm the health of Americans."

For its part, Meta announced in early 2019 that it had begun to "tackle vaccine misinformation" on Facebook by making that content less prominent in search results, rejecting ads that included it, and "exploring ways to share educational information about vaccines when people come across misinformation on this topic." It promised to "take action" against posts that shared "verifiable vaccine hoaxes," as defined by the World Health Organization (WHO) and the U.S. Centers for Disease Control and Prevention (CDC).

After those policies were announced, CHD noticed changes to the functionality and appearance of its Facebook page. A banner was placed at the top of its page, with a message that read:

This Page posts about vaccines

When it comes to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC) has information that can help answer questions you may have about vaccines. Go to CDC.gov

Around the same time, Meta began flagging CHD's posts as containing factual inaccuracies. To identify content posted on Facebook that it considers inaccurate, Meta contracts with the Poynter Institute (which operates a website known as "PolitiFact") and Science Feedback. Specifically, Meta directs those services to review and classify content that its algorithms have identified as potentially containing "misinformation." If the reviewers determine that the content contains false or misleading information, it may appear under a grey overlay that informs readers that the post has been labeled false and refers them to a link so that they can "See Why." The link leads users to a new window that contains a short explanation of the classification—for example, that independent fact-checkers have determined that the information shared in the post is "factually inaccurate." The contents of the flagged post remain accessible, but visitors must click a slightly less prominent link in order to view it. If Meta determines that the post violates Facebook's Community Standards, it may be removed entirely.

After identifying repeated factual inaccuracies in CHD's posts, Meta deactivated the "donate" button on CHD's page, telling the group that it had violated Facebook's "fundraising terms and conditions." Before this happened, CHD had received more than $40,000 in donations through its Facebook page in 2019. Meta also prohibited CHD, Kennedy, and an agency employed by the two from purchasing advertisements on Facebook because, it said, CHD had "repeatedly posted content that has been disputed by third-party fact-checkers [for] promoting false content."

As part of its response to the COVID-19 pandemic, Meta took further action against CHD. It updated Facebook's policies to prohibit users from sharing any "claims that COVID-19 vaccines are not effective in preventing COVID-19," and it created a "Coronavirus (COVID-19) Information Center," which links to the CDC's website and other "leading health organizations" for information on the pandemic. Meta then began displaying messages to CHD's followers encouraging them to unsubscribe from its posts and referring them to the WHO for facts about COVID-19.

CHD alleges that Meta has also limited the visibility of its content using processes known as "shadow-banning" and "sandboxing." With shadow-banning, Meta allows a post to remain visible to the poster, and in some cases the poster's Facebook "friends," while hiding the post from other users. With sandboxing, Meta shows CHD's posts about vaccines to like-minded users but not to those who do not already share its views. CHD says that, as a result, traffic to its website from its Facebook page has declined significantly. Although CHD once had the ability to dispute the actions Meta took with respect to its page, Meta disabled that functionality, and it has not been restored.

In August 2020, CHD brought this action in the Northern District of California. It alleged that Meta, Zuckerberg, the Poynter Institute, and Science Feedback were working in concert with or, alternatively, under compulsion from the federal government to censor CHD's speech, in violation of the First Amendment, and to deprive it of its property right to fundraise on Facebook, in violation of the Fifth Amendment. Based on those alleged constitutional violations, CHD sought damages under 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). It also sought injunctive and declaratory relief. CHD further claimed that the defendants violated the Lanham Act by labeling its posts as false, and that the defendants...