Rogalinski v. Meta Platforms, Inc.

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RICHARD ROGALINSKI, Plaintiff, v. META PLATFORMS, INC., Defendant.

No. 22-cv-02482-CRB

United States District Court, N.D. California

August 9, 2022

ORDER GRANTING MOTION TO DISMISS

CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE

Plaintiff Richard Rogalinski alleges that Defendant Meta Platforms Inc. (“Meta”) violated the First Amendment of the United States Constitution when it censoring his Facebook posts about COVID-19. See Compl. (dkt. 1). Purporting to represent a class of similarly situated Facebook users, Rogalinski alleges that Meta took this action in concert with the Biden Administration. Meta moves to dismiss, arguing that Rogalinsky has not pleaded state action. See MTD (dkt. 51). Finding oral argument unnecessary, the Court GRANTS the motion and denies leave to amend.

I. BACKGROUND

A. Parties

Rogalinski is a resident of Florida. Compl. ¶ 28.

The putative class members are individuals whose comments about COVID-19 were allegedly censored by Meta beginning on January 20, 2021. Id. ¶ 29. Rogalinski asserts that “[u]pon information and belief,” the putative class contains potentially millions of members, but that only Meta knows the true number. Id. ¶ 61.

Meta is a corporation with its principal place of business in Menlo Park, California. Id. ¶ 30. Meta operates Facebook, among other online services. MTD at 1. In operating Facebook, Meta deploys tools and resources to moderate content on the platform. Id.; Compl. ¶ 31.

B. Facts

1. Allegations Against Meta

Between April and June 2021, Meta appended warnings to or hid certain of Rogalinski's Facebook posts. Compl. ¶ 37. First, on or about April 6, 2021, Rogalinski posted a message doubting the efficacy of masks: “Some of that science stuff laying out how masks do nothing to prevent the spread of [COVID-19] and they're actually harmful to your health. Haven't seen any of that science stuff saying otherwise. Just talking heads who want to spread fear and control you.” Id. Meta responded by appending a warning to the post that it was “missing context,” and providing a link to a site with additional information. Id. Second, on May 6, 2021, Rogalinski posted another message critiquing the COVID-19 vaccine rollout, which he implied was part of Bill Gates' “depopulation agenda,” and linking to an article by Fox News talk show host Tucker Carlson. Id.; Ex. C (dkt. 1-3). Meta responded by appending the same missing context warning. Compl. ¶ 37. Third, on June 13, 2021, Rogalinski posted a screenshot of a Tweet from a urologist promoting hydroxychloroquine as a cure for COVID-19. Id. Meta again responded by appending a warning to the post, this time labeling it as “false information” and hiding it from public view. Id.

Although the complaint does not cite any other specific instances, Rogalinski asserts generally that “[t]he COVID-19 statements [on Facebook] of Putative Members of the Class were censored, or their statements made immediate subject of rebuke or discredit from the Defendant at the behest of the federal government.” Id. ¶¶ 38-39. In his opposition, Rogalinski asserts that that the administration “specifically acknowledge[d] identifying at least 12 persons who are members of the described Class, which it targeted for censorship.” Opp'n (dkt. 57) at 5.

2. Statements by Federal Officials

Rogalinski alleges that Meta's “efforts to censor information had come in communion with, if not at the behest of efforts by the Executive Branch of the Federal Government to restrict public statements and comments which clashed with the dogmatic narrative adopted by the new administration and Facebook.” Id. ¶ 22.

At a press conference on July 15, 2021-after Meta took action against Rogalinski's posts-White House Press Secretary Jen Psaki responded to a question about the administration's “request for tech companies to be more aggressive in policing misinformation” by stating: “we are in regular touch with these social media platforms,” and “[w]e're flagging problematic posts for Facebook that spread disinformation.” Id. Psaki continued by outlining the administration's four recommendations for social media platforms: (1) measure and publicly share information on the impact of misinformation; (2) create a robust enforcement strategy across platforms; (3) act faster to take down harmful posts; and (4) promote quality information sources in their algorithms. Compl. Ex. A (dkt. 1-1) at 16-17. In support of cross-platform enforcement strategy proposal, Psaki noted that “there's about 12 people who are producing 65 percent of anti-vaccine misinformation on social media platforms,” and that “[a]ll of them remain active on Facebook, despite some even being banned on other platforms, including . . . ones that Facebook owns.” Compl. Ex. A at 16.

C. Procedural History

On July 19, 2021, Rogalinski filed his complaint in the District Court for the Middle District of Florida. Compl. After early delays due to confusion over Meta's agent for service, on February 10, 2022, Meta moved to dismiss the complaint or to transfer the case to this district in light of the forum selection clause in Facebook's Terms of Service. Mot. to Dismiss or Transfer (dkt. 27). On April 22, the case was transferred to this district. Order Granting Mot. To Transfer (dkt. 31). Meta now moves to dismiss, which Rogalinski opposes. MTD; Opp'n.

II. LEGAL STANDARD

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be dismissed for failure to state a claim for which relief may be granted. Fed.R.Civ.P. 12(b)(6).

Rule 12(b)(6) applies when a complaint lacks either a “cognizable legal theory” or “sufficient facts alleged” under such a theory. Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019). Whether a complaint contains sufficient factual allegations depends on whether it pleads enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. When evaluating a motion to dismiss, the Court “must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, it is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986); Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

If a court dismisses a complaint for failure to state a claim, it should “freely give leave” to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2). A court has discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008).

III. DISCUSSION

Meta moves to dismiss, arguing that Rogalinski has failed to plausibly allege that Meta was a state actor. The Court agrees.

A. State Action

The Ninth Circuit recently reaffirmed that “a private entity hosting speech on the Internet is not a state actor” subject to the Constitution. See Prager Univ. v. Google LLC, 951 F.3d 991, 995 (9th Cir. 2020) (“Despite YouTube's ubiquity and its role as a publicfacing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.”). The Supreme Court explained that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019).

However, in rare cases, action by a private party can constitute state action. See Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (noting the four different tests that the Supreme Court has employed to determine if a private party engaged in state action). Rogalinski argues that Facebook engaged in state action under either of two theories: a “joint action” theory and a “nexus” theory. See Opp'n at 8-9.

1. Hart v. Facebook

Earlier this year, this Court heard Hart v. Facebook, in which the plaintiff also alleged that Meta (then Facebook) violated his First Amendment rights by flagging posts that allegedly contained COVID-19 misinformation. No. 22-CV-00737-CRB, 2022 WL 1427507 (N.D. Cal. May 5, 2022). Like Rogalinski, Hart relied on allegations about the July 15 press conference to show state action. Hart pointed to Psaki's statements, the Surgeon General's statements at the same press conference, and statements by President Biden encouraging companies to combat disinformation. See id. at 3.

The Court rejected Hart's arguments of joint action or government coercion and dismissed the claims against Facebook. Id. at 11. The Court based its order on at least four related but essentially independent grounds: (1) Facebook much more plausibly was enforcing its own misinformation policy; (2) the government's statements were phrased only as vague recommendations; (3) the government's supplying of information to Facebook did not plausibly suggest involvement in Facebook's decisions; and (4) there was no indication of government involvement in action specifically toward Hart. Id. at 10-14.

Rogalinski acknowledges Hart but argues for a different outcome on two grounds. See Opp'n at...