state actors – Techdirt (original) (raw)

Community Notes Is Great Until It Challenges Elon, And Then It’s Being ‘Manipulated’ By State Actors

from the amazing-that-state-actors-only-target-elon dept

Oh Elon. As we’ve discussed, Elon is infatuated with Community Notes as a sort of crowdsourced alternative to actually funding a trust & safety staff and tooling. And while we actually like Community Notes and think more social media should use similar tools, it’s simply not a full trust & safety replacement.

But, over the past year, we’ve seen that Elon loves to point out when Community Notes supports his priors, and repeatedly claims victory when Community Notes debunks (or even quibbles with) content that Musk doesn’t like. If you look, you can find him cheering on Community Notes time and time again.

Not too long ago, ExTwitter changed the terms of its creator payout system such that creators who regularly get fact-checked via Community Notes will no longer get payouts.

But… how does the man in charge feel about things when he gets fact checked via Community Notes? Well, it appears that his tune quickly changes. While there have been a few times he’s been Community Noted in the past, and he’ll sometimes brush it off with a “yes, even I’m open to having such notes placed on my account,” when it’s a higher profile thing he seems to freak out.

Over the weekend, Tucker Carlson started pushing a very misleading story regarding YouTube sensationalist Gonzalo Lira who made his name as one of those jackass “dating coaches,” (i.e., “pickup artists”) who became a pro-Russia propagandist once the invasion of Ukraine began. Carlson’s version of the story pitched Lira as a “journalist” who was “imprisoned in Ukraine” for “criticizing Zelensky.”

Lira was arrested earlier this year for violations of Ukraine’s criminal code. There are many legitimate questions that can be asked regarding the nature of Ukraine’s laws regarding propaganda and free speech. But, the underlying accusations against Lira seem more focused on how he was revealing the identity and location of both Ukrainian soldiers and western journalists covering the war.

Either way, Musk picked up on Carlson’s story, falsely claimed Lira had been imprisoned for 5 years, and trying to demand answers as to what was happening with him. Community Notes quickly stepped in to first point out that Carlson’s description of Lira’s situation was misleading, and then that Elon’s tweets were also misleading.

After discovering that his own posts were being Community Noted (will he lose access to monetization?), he started claiming that “state actors” were “gaming” Community Notes. And then, hilariously, claimed that this was really a “honey pot” to catch those gaming the system.

The Community Notes folks quickly hit back:

They pointed out that:

Community Notes requires agreement from contributors of differing perspectives, as such is highly resistant to gaming. The entire Community Notes algorithm and data is open source, and can be reviewed by anyone…

Community Notes ftw.

Soon after that, the Community Notes on Elon’s post disappeared. Funny that.

And… soon after that, a different Community Note appeared on Elon’s tweet again pushing back on the idea that Community Notes was easy to game:

So, yes, any such system of crowdsourcing things can be gamed, though ExTwitter’s implementation of Community Notes (a modification of the tool Polis) is done in a way that, at the very least, makes it resistant to such gaming. It’s not impossible to game, but it’s also not easy given the way it’s set up.

But, still, given how often Elon acts like Community Notes is an infallible system that solves most of his trust & safety issues, it’s interesting to note that apparently it’s only “gamed” by “state actors” when its calling out his own false tweets. The rest of the time Community Notes is so accurate that the company can base payment information on it. So, when Community Notes supports Elon’s views, it’s a key part of ExTwitter’s platform strategy. When it goes against Elon’s views, it’s being abused by state actors.

What an astounding coincidence.

Filed Under: community notes, crowdsourcing, elon musk, fact checking, gonzalo lira, state actors, tucker carlson
Companies: twitter, x

Judge Is Not At All Impressed By Trump’s Lawsuit Against Twitter; Dismisses It Easily

from the judge-to-trump:-this-is-not-how-any-of-this-works dept

As you probably recall, former President Donald Trump sued various social media companies for kicking him off their platforms, claiming (absolutely ridiculously) that private companies deplatforming the President of the United States violated his 1st Amendment rights, and claiming that Section 230 was unconstitutional. As we noted at the time, this is not how any of this works. The lawsuits have not gone very well. While they were filed in Florida, they were quickly transferred to the proper venue in California, and now Judge James Donato has tossed out the lawsuit against Twitter, and done so easily — though he does allow Trump to try again with an amended complaint (something that will almost certainly be coming).

Judge Donato wastes little time in pointing out the problems with the claim that Twitter moderation violates anyone’s 1st Amendment rights:

Plaintiffs’ main claim is that defendants have “censor[ed]” plaintiffs’ Twitter accounts in violation of their right to free speech under the First Amendment to the United States Constitution… Plaintiffs are not starting from a position of strength. Twitter is a private company, and “the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies.”

You don’t say?

There’s this whole concept of the State Action Doctrine that Trump would need to overcome to make this a 1st Amendment issue, and guess what Trump’s lawyers did not do? Yeah, you guessed it. Because you’re smarter than a Trump lawyer.

Plaintiffs’ only hope of stating a First Amendment claim is to plausibly allege that Twitter was in effect operating as the government under the “state-action doctrine.” This doctrine provides that, in some situations, “governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints.”… This is not an easy claim to make, for good reasons. Private entities are presumed to act as such, and maintaining the line “between the private sphere and the public sphere, with all its attendant constitutional obligations,” is a matter of great importance, as “[o]ne great object of the Constitution is to permit citizens to structure their private relations as they choose subject only to the constraints of statutory or decisional law.” Edmonson, 500 U.S. at 619. “As a matter of substantive constitutional law the state-action requirement reflects judicial recognition of the fact that ‘most rights secured by the Constitution are protected only against infringement by governments.’” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 936 (1982) (citation omitted). “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.”

Plaintiffs say that the question of whether they have a First Amendment claim on the basis of the state action doctrine is a factual matter “ill-suited to a Rule 12(b)(6) motion.” …. Not so. It is certainly true that the ultimate determination of state action is a “necessarily fact-bound inquiry,” Lugar, 457 U.S. at 939, but that does not relieve plaintiffs of their obligation under Rule 8 and Rule 12(b)(6) to provide in the complaint enough facts to plausibly allege a claim against Twitter on the basis of state action. See, e.g., Heineke v. Santa Clara Univ., 965 F.3d 1009, 1015 n.5 (9th Cir. 2020) (“Heineke’s contention that it is inappropriate to dismiss his § 1983 constitutional claims at the motion to dismiss stage, is unpersuasive. We have accepted his allegations as true. Because he has failed to plead any allegations sufficient to support his argument that SCU acted under color of state law, however, his § 1983 claims must fail as a matter of law.”). To conclude otherwise, as plaintiffs urge, would fly in the face of the pleading requirements squarely stated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Here we need to break in, because those two cases, Twombly and Iqbal, are now considered pretty well accepted and fairly standard cases regarding what you need to plead in order to actually plead a claim that can survive a motion to dismiss. The two cases together, nicknamed Twiqbal, stand for the idea that you can’t just randomly plead nonsense and promise to bring actual claims down the road. You have to claim actual factual claims that, if true, would be legitimate. Twombly applied this to antitrust law, and then Iqbal applied the same standard broadly across all federal cases.

Since Iqbal in 2009 this has all been widely understood for anyone practicing in federal courts. Except, apparently, Trump’s lawyers. They tried to argue that Twiqbal only applied to antitrust. The judge dismissed that, well, dismissively, in a footnote:

Plaintiffs make the odd assertion that these pleading standards apply only in antitrust conspiracy actions. Dkt. No. 145 at 6 n.7. Twombly and Iqbal expressed no such limitation, and their standards have been applied to a myriad of Rule 12(b)(6) motions in non-antitrust actions in every federal district and circuit court. A scant minute of online research makes this abundantly clear. See, e.g., Mendoza v. Amalgamated Transit Union Int’l, 30 F.4th 879, 886 n.1 (9th Cir. 2022) (labor and employment case); Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (Bivens claims)

Ouch.

Anyway, back to the substance. Is this a state action? Well, duh, no.

To start, the amended complaint does not plausibly show that plaintiffs’ ostensible First Amendment injury was caused by “a rule of conduct imposed by the government.” id. at 835 (cleaned up); see also Mathis v. Pacific Gas and Elec. Co., 891 F.2d 1429, 1432 (9th Cir. 1989) (“no state, or federal, action unless” a private entity’s decision is “made on the basis of some rule of decision for which the State is responsible.”) (quotations and citation omitted). The amended complaint merely offers a grab-bag of allegations to the effect that some Democratic members of Congress wanted Mr. Trump, and “the views he espoused,” to be banned from Twitter because such “content and views” were “contrary to those legislators’ preferred points of view.” See, e.g., AC ¶¶ 53, 55, 60, 61. But the comments of a handful of elected officials are a far cry from a “rule of decision for which the State is responsible.” Legislators are perfectly free to express opinions without being deemed the official voice of “the State.” Government in our republic of elected representatives would be impossible otherwise. It is also not plausible to conclude that Twitter or any other listener could discern a clear state rule in such remarks, or even determine what a legislator’s “preferred views” might be.

The weakness of the state action theory in the amended complaint is further demonstrated by plaintiffs’ own explanation of why their accounts were closed. Twitter is said to have closed Mr. Trump’s account because of “the risk of further incitement of violence” and “threats to physical safety.” Id. ¶¶ 114-15. Twitter closed plaintiff Cuadros’s account “due to a post about vaccines,” id. ¶ 124, and Dr. Wolf’s account for “vaccine misinformation,” id. ¶ 162. Plaintiff Barboza’s account was closed “after retweeting President Trump and other conservatives on January 6, 2021,” id. ¶ 137; plaintiff Latella after he “post[ed] positive messages about Republican candidates and President Trump,” id. ¶ 142; and plaintiff Root for “messages he posted related to COVID-19 and the 2020 election results,” id. ¶ 152.

If anything, these explanations indicate that Twitter acted in response to factors specific to each account, and not pursuant to a state rule of decision. These circumstances are not at all comparable to those in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), as plaintiffs urge. In that case, which is discussed infra in more detail, a state commission was empowered to compel a private book distributor from selling or supplying certain books. The amended complaint does not allege anything like this type of state dictate to Twitter.

Also, the ruling notes that just because some legislators were whining about social media moderation choices, that does not magically turn those websites into state actors:

Paragraph 55 is said to offer “examples of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230 immunity for Defendants and other social media platforms if Twitter did not censor views and content with which these Members of Congress disagreed.” … The actual quotes do not live up to that billing. The statements attributed to “Bruce Reed, Biden’s Top Tech Advisor,” and Michelle Obama are of no moment because Reed and Obama were not legislators…. Other statements in Paragraph 55 pertain only to Facebook, and not Twitter. … (Senator Markey’s question and Mark Zuckerberg’s answer regarding Facebook’s algorithms and policies; Rep. Adam Schiff’s Tweet that “Facebook must ban” Trump). Then-Senator Kamala Harris is quoted three times for calling for “Trump’s Twitter account [to be] suspended” and calling on Dorsey to “do something about this Tweet” from Trump, but conspicuously missing is any threatening remark directed to Twitter….

Also, randomly complaining about Section 230 does not change things either:

Five statements are nothing more than general comments about Section 230 (e.g., “We can and should have a conversation about Section 230”) untethered to any substance that might have conveyed any threat or punishment tied to any specific action by Twitter

The judge then distinguishes the various cases where state action was found, noting that in all of those, the connection to the state, and the clear threats, are much more obvious.

These cases, which are the centerpieces of plaintiffs’ state action argument, are strikingly different from the allegations in the amended complaint. In each of the cases, a concrete and specific government action, or threatened action, was identified. Here, plaintiffs offer only ambiguous and open-ended statements to the effect that “we may legislate” something unfavorable to Twitter or the social media sector. This is a world away from: (1) a state commission sending local police officers for drop-in visits and threatening prosecution by the state attorney general (Bantam Books); (2) a city mayor and police superintendent threatening law enforcement action to crack down on sit-in demonstrations (Lombard); (3) a deputy county attorney threatening prosecution against a private company under a specific law (Carlin); and (4) a federal administrative commission threatening the suspension of licenses or formal rulemaking if its specified elements for an anti-drug program were not followed voluntarily (Mathis).

Then there’s the part about Section 230. That takes all of two paragraphs to dismiss and only one actually matters (the first one just discusses the nature of the claim about 230 supposedly being unconstitutional):

To establish an injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (cleaned up). These facts are entirely absent from the amended complaint with respect to Section 230. Plaintiffs offer only the vague and speculative allegation that “[u]pon information and belief, defendants would not have deplatformed the plaintiff or similarly situated putative class members but for the immunity purportedly offered by Section 230(c).”… Why this might be plausible is left unsaid. The Court declines to accept such speculative and conclusory allegations as grounds for a declaratory judgment claim.

Florida’s Deceptive and Unfair Trade Practices claim also doesn’t do well at all. Twitter’s terms say they can remove you for any reason at all, so there’s nothing deceptive going on here:

A good argument can be made that plaintiffs did not plausibly allege deceptive conduct by Twitter for purposes of either the FDUTPA or the UCL. The TOS expressly states that Twitter may suspend or terminate an account “at any time for any or no reason.” … It also states that Twitter may remove or refuse to distribute any content…. There is nothing cagey or misleading about these provisions, and plaintiffs’ suggestion that Twitter may have applied them inconsistently,…, or at the government’s behest, does not change that. The TOS gave Twitter contractual permission to act as it saw fit with respect to any account or content for any or no reason, which makes its ostensible motives irrelevant for a deceptive practices claim.

Trump also tried to use Florida’s already-declared unconstitutional social media law, and, well, you know how that went. It also fails because only one plaintiff was actually a Florida resident, and the Twitter actions all took place before that law would have come into effect anyway (and, oh yeah, the court blocked it from coming into effect, because it’s unconstitutional):

An initial problem for plaintiffs is that only one named plaintiff (Dominick Latella) was a Florida resident with any active Twitter account at the time the statute took effect on July 1, 2021, … and so he is the only plaintiff who might conceivably have a SSMCA claim. See Fla. Stat. § 501.2041(1)(h) (“user” is “a person who resides or is domiciled in [Florida] and who has an account on a social media platform.”). The amended complaint alleges that all of the other plaintiffs were domiciled outside of Florida, or had their Twitter accounts closed prior to July 1, 2021.

Another problem is that plaintiffs say they are challenging only conduct that occurred after the SSMCA effective date…. But the amended complaint focuses on actions affecting plaintiffs’ accounts prior to July 1, 2021. … Consequently, it is unclear what plaintiffs allege to be the potential application of the statute to their case.

There is also a major concern about the enforceability of the SSMCA. Florida government officials were enjoined from enforcing the SSMCA on June 30, 2021, the day before the law was to take effect, in a well-reasoned decision issued by the Northern District of Florida. NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082 (N.D. Fla. 2021), appeal pending sub nom, NetChoice LLC v. Attorney Gen., State of Fla., No. 21-12355 (11th Cir.). The court concluded that the statute violated the First Amendment and was preempted by 47 U.S.C. § 230; it also expressed strong concerns that the statute was impermissibly vague. The Court declines plaintiffs’ invitation to disregard this decision, particularly while an appeal is pending, and dismisses the SSMCA claim without prejudice.

Still, the judge allows Trump and the other plaintiffs a chance to amend the complaint, but makes it pretty clear he doesn’t find it likely that they’ll get past any of these hurdles.

All in all this is a nice clean win, exactly as expected. I look forward to the trolls in our comments who were so sure the original case was a winner rationalizing away this ruling, and how the amended complaint or the appeal will magically make this case a winner rather than the obviously frivolous lawsuit it has been from the second it was filed.

Filed Under: 1st amendment, california, content moderation, donald trump, florida, free speech, social media, state action doctrine, state actors, unfair and deceptive
Companies: twitter

from the stop-it dept

Over the last few years we’ve heard a lot of nonsense claiming that Section 230 somehow magically turns social media into state actors. This idea, pushed heavily by disgraced law professor Jed Rubenfeld has not fared well in court. As law professor Eric Goldman highlights, multiple courts have been easily rejecting these claims. Notably, they’re mostly citing the failed lawsuit from PragerU that insisted that a very light touch moderation (filtering out a very small percentage of their videos from the even smaller percentage of users who turn on “restricted mode”) was a form of censorship. The 9th Circuit pointed out that the 1st Amendment says otherwise (which is amusing since Prager himself pretends to be a big supporter of the 1st Amendment).

Either way, three recent cases claiming that social media were state actors all clearly and easily rejected those claims. The first two of these were pro se lawsuits that were mad about social media sites in semi-coherent complaints that the courts construed as liberally as possible to try to find any sort of legitimate claim, and the courts (rightly) found that those claims were barred because the social media sites (YouTube and LinkedIn) were clearly not state actors.

First up, a district court in the Eastern District of Pennsylvania, which made short work of a lawsuit against YouTube filed by a pro-se plaintiff with a variety of different claims about harassment and hacking (that were somehow YouTube’s fault?) leading to the suggestion (the complaint is not particularly clear) of a civil rights violation. The court points out that YouTube is not a state actor and thus there’s no possible claim here:

Based on the Complaint?s allegations, it appears the named Defendants ? a private social media company and its legal department ? are not subject to liability under Section 1983. Cf. Prager Univ. v. Google LLC, 951 F.3d 991, 999 (9th Cir. 2020) (affirming the dismissal of a First Amendment claim because YouTube was a private entity and not a state actor); see also Rutenburg v. Twitter, Inc., No. 21-0548, 2021 WL 1338958, at *2 (N.D. Cal. Apr. 9, 2021) (?Federal courts have uniformly rejected attempts to treat similar social media companies [such as Twitter, Facebook, YouTube, and Google] as state actors under Section 1983.?) (collecting cases). Sescey does not allege Defendants are state actors or that they had any connection to a state, county, or local governmental entity. Her Complaint does not allege any facts to show a ?close nexus? between the private behavior of YouTube and its legal department and the state itself such that the challenged action here can fairly be treated as an action of the state. Leshko, 423 F.3d at 339. None of Sescey?s allegations support an inference that Defendants are anything other than a privately-run social media company and its internal legal department.

The next one, filed against LinkedIn, requires barely more than a page to dismiss:

The district court properly dismissed Perez?s action because Perez failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to state a plausible claim); see also Prager U. v. Google LLC, 951 F.3d 991, 996-97 (9th Cir. 2020) (internet media websites are not government actors under the First Amendment);

The other case, also highlighted by Eric Goldman, isn’t a pro-se filing like the other two, but at least marginally (in the most marginal of senses) more serious. It was filed on behalf of Cameron Atkinson against Facebook (though the caption is now updated to Meta!) who claims that Facebook broke the law in “censoring” him. The details of the complaint are… really something.

Like many of his fellow citizens and students of the law, the Plaintiff, Cameron L. Atkinson is a thinker who, regardless of whether he is right or wrong, loves to share his thoughts and hear the thoughts of others. He regularly posts on Facebook about political and legal developments with the same civility that he would use in the courtroom or the classroom, seeking to engage in debate with the community of fellow law students and other friends whose respect he has gained.

The Plaintiff, Cameron L. Atkinson, is also an inquiring man who rarely rushes to judgment, often choosing to find out for himself before condemning someone.

Consequently, when Cameron L. Atkinson learned from friends that Facebook was censoring conservatives’ posts that mentioned the name of Eric Ciaramella, the alleged Ukranian whistleblower who has provided the impetus for the pending impeachment proceedings against President Donald Trump, he decided to test the scope of Facebook’s censorship himself.

Cameron L. Atkinson’s first post occurred on the morning of November 11, 2019. He published a post on Facebook that read “Test post: Eric Ciaramella is a hero for blowing the whistle on the Trump administration’s treason with Ukraine.” See Exhibit 1

Approximately four minutes later, Cameron L. Atkinson published a second test post on Facebook that read “Test post 2: Eric Ciaramella is a dirty lying rat for trying to take down the Trump administration.” See Exhibit 1.

Cameron L. Atkinson’s object in publishing these posts was to see if Facebook would censor one post, but not the other.

Within 5 hours, Facebook removed both of Cameron L. Atkinson’s posts with no warning or notification.

After learning of Facebook’s censorship, Cameron L. Atkinson published a third post that read as follows:

> I have conflicting thoughts about the naming of Eric Ciaramella, the alleged Ukraine whistleblower. Tattling in the dark shadows destroys public confidence in a matter of serious public interest. On the other hand, the vitriolic nature of our society may very well raise concerns for his safety. However, it may also end up protecting his well-being. Regardless, I think that people should be open to debating the merits of this serious public question.

See Exhibit 2.

Again, less than 5 hours later, Facebook removed Cameron L. Atkinson’s third post without notifying him or warning him

The complaint alleged a bunch of violations of things that do not exist:

The Plaintiff claims a violation of his rights under the First Amendment to the United States Constitution, violations of the Communications Decency Act, statutory fraud, theft, a breach of the implied warranty of fair dealing, and violations of the Connecticut Unfair Trade Practices Act (CUPTA)

The case was transferred from Connecticut to California under ~~Facebook’s~~ Meta’s terms of service, and then tossed out easily by the district court. The appeals court upholds the lower court ruling, but as Goldman notes, the ruling is a bit sloppy (and also they did it as non-precedential for unclear reasons).

But, as the court points out, the 1st Amendment claims are ridiculous because Facebook (shut up, it’s not “Meta”) is not a state actor:

The district court properly dismissed Atkinson?s First Amendment claim because he did not allege sufficient facts to infer that Meta Platforms is a government actor. Unless certain exceptions apply, the First Amendment only restricts government action. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (enumerating exceptions). Dismissal is proper when a complaint lacks ?a cognizable legal theory? or ?sufficient well-pleaded, nonconclusory factual allegations? to state a plausible claim for relief….

Atkinson does not allege plausibly that the federal government ?compel[led] [Meta Platforms] to take a particular action,? Halleck, 139 S. Ct. at 1928, or ?exercised coercive power,? Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Allegations of federal coercion do not support the deprivation under color of state law that Atkinson pleaded. See 42 U.S.C. ? 1983; Heineke v. Santa Clara Univ., 965 F.3d 1009, 1013 n.3 (9th Cir. 2020) (finding that private actors are only subject to ? 1983 liability under a state action theory). Even if such facts could support his claim, Atkinson does not allege federal coercion sufficiently. Instead, his allegations cast Meta Platforms? decision to adopt community standards as a self-interested business decision.

Atkinson also does not plead sufficient facts to infer that Meta Platforms acted jointly with state governments. Halleck, 139 S. Ct. at 1928. We need not accept as true factual allegations that Atkinson?s submitted exhibit contradicts. Gonzalez v. Planned Parenthood of L.A., 759 F.3d 1112, 1115 (9th Cir. 2014). To the extent that Atkinson?s allegations are not contradicted, they still do not reflect joint action. Absent more, the fact that state officials responded to Meta Platforms? unsolicited inquiries does not plausibly allege such a degree of ?interdependence . . . that [the state] must be recognized as a joint participant? in Meta Platforms? editorial decisions. Tsao v. Desert Place, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012) (citation omitted). Atkinson does not offer other facts that would make a joint action claim plausible, such as an agreement between state governments and Meta Platforms; state participation in Meta Platforms? corporate governance; financial ties between state governments and Meta Platforms; or Meta Platforms? regulation of state activities. Cf. Brentwood v. Tenn. Secondary Sch. Athletic Ass?n, 531 U.S. 288, 298?302 (2001) (explaining state action existed under such circumstances). We cannot infer that state officials ?dominate[d]? Meta Platforms? decision making from Atkinson?s allegations.

Then there’s the question, pushed by Rubenfeld and other very foolish people, that Section 230 magically turns websites into state actors. The court says “nuh uh” without much elaboration:

Finally, Section 230 of the Communications Decency Act does not independently transform Meta Platforms into a government actor for First Amendment purposes

Basically, that line of argument is so dumb it doesn’t even require any analysis other than saying “no, that’s not true.”

As for “violating Section 230,” well, that’s not a thing.

Section 230 does not explicitly create a private right to sue, see 47 U.S.C. ? 230, nor do its ?language, structure, context, [or] legislative history? implicitly reflect any congressional intent to establish one. Lil? Man in the Boat, Inc. v. City and County of San Francisco, 5 F.4th 952, 958 (9th Cir. 2021). Section 230 is not ?phrased in terms of [individual] persons benefited.? …

It’s somewhat telling how easily and quickly courts are dumping these claims, at the same time that the usual grifters and nonsense-peddlers continue to insist that there’s a reasonable legal argument that social media are somehow state actors. They are not and no one should take seriously anyone who claims otherwise.

Filed Under: 1st amendment, section 230, social media, state actors
Companies: facebook, linkedin, youtube

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