from the that's-not-how-any-of-this-works dept
Back in January, we wrote about a bizarrely bad Wall Street Journal op-ed co-written by disgraced and suspended Yale Law professor Jed Rubenfeld, arguing that Section 230 somehow magically makes social media companies state actors, controlled by the 1st Amendment. This is, to put it mildly, wrong. His argument is convoluted and not at all convincing. He takes the correct idea that government officials threatening private companies with government retaliation if they do not remove speech creates 1st Amendment issues, and then tries to extend it by saying that because 230 gives companies more freedom to remove content, that magically makes them state actors.
As we noted at the time, that's not how any of this works. Companies' ability to moderate content is itself protected by the 1st Amendment. Section 230 gives them procedural benefits in court to get dumb cases kicked out earlier, but it most certainly does not magically make them an arm of the government. This wacky idea that social media is magically a state actor was rightly shut down by Supreme Court Justice Brett Kavanaugh (who, ironically, is part of another scandal involving Rubenfeld) in the Halleck case, in which the Court stated clearly that you don't just magically make companies state actors. There are rules, man. From the ruling written by Kavanaugh:
By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”
However, it appears that not only is Rubenfeld making these arguments in laughably wrong WSJ pieces, but he's now trying to do so in court as well, as he's now representing some anti-vaxxers, who are trying to insist that Facebook's decision to put warning labels on the bogus information the anti-vaxxers were posting somehow violated their 1st Amendment rights.
We had written about this case last summer, noting that it was so stupid and so wrong that I had difficulty writing it up. And that was before Rubenfeld joined the defense team. At issue was that Robert F. Kennedy's blatant misinformation anti-vax propaganda shop, "Children's Health Defense" sued Facebook, claiming that it had "teamed up" with the US government to censor their speech. The reasoning was that Rep. Adam Schiff had (stupidly) threatened to remove Facebook's 230 protections if the company didn't do a better job dealing with misinformation.
As we noted at the time, there is perhaps a weak case they might have against Schiff, but not against Facebook.
Yet, the case goes on. Facebook has rightly moved to have the case dismissed, and that motion is worth a read if only because the exasperation of Facebook's lawyers at Wilmer Hale can be heard quite clearly. There's a lot in there, but the summary covers it pretty thoroughly:
CHD claims that Facebook’s fact-checking program violated its First Amendment rights,
restrained it from competing in the marketplace of vaccine “messages,” ... and constituted
a RICO enterprise. Those claims turn the First Amendment on its head. The First Amendment is a
shield from government action—not a sword to be used in private litigation. It is therefore
unsurprising that the SAC contains numerous independent and incurable defects.
First, the SAC does not state a Bivens claim because it does not allege federal action.
Facebook and Mr. Zuckerberg are private actors. Facebook exercised its own editorial discretion to
reduce the visibility of posts identified by independent fact-checkers as containing false or partially
false information. None of the challenged conduct is attributable to the federal government.
Second, far from violating the First Amendment, Facebook’s decisions to label and limit the
visibility of CHD’s content are themselves protected by the First Amendment. This Court may not
hold Facebook or Mr. Zuckerberg liable for exercising editorial discretion with respect to matters
of public concern. And even if the First Amendment did not fully bar CHD’s claims, it requires that
CHD, at minimum, plausibly allege that Facebook acted with actual malice. The SAC fails to do so,
even though Defendants’ motions to dismiss unquestionably put CHD on notice of this defect.
Third, Section 230 of the Communications Decency Act (“CDA”) shields Facebook from
liability for publishing third-party fact checks or restricting access to CHD’s content. None of the
SAC’s allegations concerning the relationship between Facebook and third-party fact-checkers strip
Facebook or Mr. Zuckerberg of that protection.
Fourth, the Lanham Act claim fails because CHD has not identified a commercial injury that
gives it standing under the Act. The Lanham Act protects those engaged in commerce against unfair
competition. Because CHD’s alleged injuries are to its interests as a consumer of Facebook’s free
service, not as a competitor, they are not cognizable under the Act. And CHD’s allegations do not
establish that the purportedly false statements are “promotional statements” covered by the Act.
Fifth, CHD has not stated a civil RICO claim because it has failed, even on its third bite at
the pleading apple, to identify any predicate acts of wire fraud. And CHD has alleged neither a
sufficiently “direct” injury to confer statutory standing nor a cognizable civil RICO “pattern.”
Sixth, the SAC additionally does not state a claim against Mr. Zuckerberg because it does not
allege that he was personally involved in any of the allegedly unlawful conduct. Nor has CHD
pleaded the necessary prerequisites for any theory of agency liability.
Seventh, though the SAC contains many paragraphs describing CHD’s views on 5G, CHD
nowhere connects those views to an actionable theory of liability
Apparently, Rubenfeld has joined forces with RFK Jr. and showed up in court to defend this idiocy to what would appear to be an appropriately skeptical judge, alongside lawyer Roger Teich (who originally filed the complaint with RFK Jr.).
In a virtual hearing on Facebook’s motion to dismiss the lawsuit Wednesday, Judge Illston asked if the government can ever take steps to counter misinformation without running afoul of the First Amendment.
“Let’s say there was something on the internet that says, ‘If you take a Covid vaccine, you’re going to grow a third head.’ That’s clearly not true. Is it OK to not let that be published?” Illston asked.
CHD attorney Roger Teich replied, “I don’t think it’s OK if the government is calling the shot.”
Illston pressed: “You think it’s inappropriate for the government to say generally, ‘We’d really like it if all these private social media outlets didn’t publish lies about the Covid vaccine?’ That’s not alright to say that?”
Teich answered that it was the CDC’s “underhandedness” in using Facebook to restrict speech that violates the Constitution.
That, of course, is not how any of this works. And someone with Rubenfeld's pedigree should know that. But, instead, he's out there defending this utter and complete nonsense:
“State action must be found whenever government officials are coercing, inducing or encouraging private parties to do what they themselves cannot constitutionally do,” CHD attorney Jed Rubenfeld said.
Sure, if there's actual coercion, then a discussion can be had. But CHD has no evidence of any of that. And it seems to ignore Facebook's own 1st Amendment rights. And when the judge pointed all this out to Rubenfeld, he tries to cook up a wacky theory that because members of Congress or the CDC said something, and then Facebook took action, that magically makes Facebook a state actor.
CHD argued that U.S. Magistrate Judge Virginia DeMarchi in San Jose got it wrong when she dismissed Daniels v. Alphabet Inc. on March 31. The plaintiff in that suit argued Schiff and House Speaker Nancy Pelosi had coerced YouTube, owned by Google’s parent Alphabet, into removing objectionable content. DeMarchi dismissed the suit with leave to amend, finding the plaintiff did “not plead any facts suggesting that Speaker Pelosi or Rep. Schiff were personally involved in or directed the removal” of videos.
CHD attorney Jed Rubenfeld said DeMarchi “was not informed of the precedent” when she issued that ruling.
“What matters is if they gave the private party the standard of decision,” Rubenfeld said. “The CDC gives Facebook the standard of decision.”
“And does it matter if what the CDC said is true,” Illston asked.
Rubenfeld replied by insisting the information his client has posted about vaccines is true, but even if the speech was false, “it would still be constitutionally protected.”
Um. Again, even if this were true (and it's making a lot out of an incredibly weak chain of events), wouldn't CHD's actual cause of action be against the government officials and not Facebook, which retains its own 1st Amendment rights to label nonsense nonsense, or to take down content?
Everything about this case is dumb, and the fact that the disgraced and suspended Rubenfeld is using it to further his nutty legal theories is just the icing on the nonsense cake. Hopefully the judge does the expected thing and dismisses the case with a thorough benchslap for wasting the court's time.
Filed Under: 1st amendment, anti-vax, content moderation, jed rubenfeld, rfk jr, robert f. kennedy jr., section 230, state action doctrine, state actor
Companies: children's health defense, facebook
