Disgraced Yale Law Professor Now Defending Anti-Vaxxers In Court With His Nonsense Section 230 Ideas

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.

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Companies: children's health defense, facebook

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Comments on “Disgraced Yale Law Professor Now Defending Anti-Vaxxers In Court With His Nonsense Section 230 Ideas”

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24 Comments
This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

Something something stop making stupid people famous.

We really need to stop pretending that there is any question about if vaccines are good or not.
Its been a very long time & they still can’t prove anything they claim.
Hell a majority of what they "believe" from mercury to aborted tissue has been false for decades but to keep them happy laws & rules are bent to appease wackjobs.

Groups who are so pro-life are perfectly okay with parents exposing their unvaccinated children to a disease that can kill or leave long term damage for the sake of pretending their rights to be dumbasses trumps everyone elses rights to not have to be exposed to a preventable disease.

I guess the deeper problem here is we don’t force people to live in reality.
They imagine the 1st Amendment applies to anyone they think is against them, that 230 says your kids can be stolen by FB and sold to a pizza place…
We have elected leaders who repeat debunked bullshit as fact & no one will take them to task about it because party matters more than truth.

Anonymous Coward says:

Re: Re:

They imagine the 1st Amendment applies to anyone they think is against them, that 230 says your kids can be stolen by FB and sold to a pizza place…

To be fair: some pizza places (in the US) would be better at raising the children than some of these parents.

(/s: also note: the author does not endorse non-voluntary separation of children and parents without due process)

Anonymous Coward says:

Yale Disgraced

If that shit is coming out of the mouth of their law professor that doesn’t bode well even without him being a serial sexual harasser. How goddamn bad is the quality of their education if nobody else exposed him. I guess that is what Yale is all about, coasting by the name of your predecessors so you don’t have to be good to get hired.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

'It's our first amendment right to tell people to drink bleach!'

If the government pressures someone to pull speech that’s certainly worthy of concern, however the proper target for a lawsuit would be the government agency/actor who applied the pressure not the platform, so the fact that they are going after the platform is rather telling as it suggests that they’re simply using the first amendment to try to force their plague cultists garbage back on because apparently covid’s bodycount just isn’t high enough yet for some people.

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.”

Ah the ultimate concession when it comes to arguments, when you know you can’t actually defend your speech on the merits fall back to pointing out that it’s not illegal to say.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: 'It's our first amendment right to tell people to drink blea

Ah the ultimate concession when it comes to arguments, when you know you can’t actually defend your speech on the merits fall back to pointing out that it’s not illegal to say.

It’d be hysterical if the case goes on to develop in a Sydney Powell direction. "It’s not illegal to say what we have to say, but who could have possibly predicted that someone would take us seriously after we tried so hard to scream at other people to take us seriously!?"

Patty says:

Re: Re: Fact checking Trump bleach remark

https://www.statesman.com/story/news/politics/elections/2020/07/13/fact-check-did-trump-tell-people-to-drink-bleach-to-kill-coronavirus/113754708/

Trump NEVER said this. BIDEN said he said this, and you Trump haters and media lackeys repeat it as fact. Same for calling Jan 6th an “insugency” and claims of 2020 election fraud “The Big Lie.” You arrogant little pricks now finding yourself scrambling to defend the mess you made by allowing a climate alarmist, a sociopathic faux scientist and a cognitively deficient Obama/DNC bootlicker to run amok (admittedly with little resistance from establishment GOP). You’re finished. A joke perfectly exemplified by the dumbest press secretary in history. Nobody laughing.

That Anonymous Coward (profile) says:

Re: 'It's our first amendment right to tell people to drink blea

stares in immortal

This will not be the first or the last time I point out we need to stop thwarting Darwin.
If they want to drink bleach, more power to them.
The problem can solve itself, that bleach will really clean up the genepool.
And yes I understand they might manage to harm their own children but that might be the only thing that finally snaps some of them back into reality.

I mean government sacrificed 500K+ people for 1 assholes ego, whats a few kids?

In my defense, as always… Sociopath.

Besides imagine the soundbites that will come from the elected trump faithful trying to avoid looking like they are responsible for any of these deaths while we show videos of them supporting the wackjobs theories.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re: 'It's our first amendment right to tell people to drink

I’d don’t lose much sleep from people removing themselves from the gene-pool thanks to their own stupidity normally, where the problem kicks in is when their stupidity is such that they’re likely to take others with them.

It’s one thing for someone to think that diseases don’t exist or that the proven medical science to combat them is witchcraft and have them die from a preventable disease as a result, but when their stupidity can result in a cascade of deaths from those who’s only ‘crime’ was being in the general vicinity of the plague cultist that’s a bit more of a problem and just leaving them to off themselves opens up serious risks to everyone around them.

Tanner Andrews (profile) says:

Re: 'It's our first amendment right to tell people to drink blea

ultimate concession when it comes to arguments, when you know you can’t actually defend your speech on the merits fall back to pointing out that it’s not illegal to say

Actually, that is a plausible argument. In NY Times v. Lester B. Sullivan, 376 U.S. 254 the Court observed several falsehoods in the offending ad. Id. at 259. Minor, perhaps, but still false. And they neither required nor discussed defense of the speech on its merits.

What they said was that the First Amendment needed “breathing space”. Id. at 271. Some falsehood is inevitable.

So, in an appropriate case, an atty for the bleach-drinking advocates might well argue that, even if bleach-drinking were ultimately deemed harmful, they have a right to express their support of the practice. Is this the appropriate case? No, of course not.

This case is not a defense of hypoclorite consumption. This is an attack on someone’s freedom to denounce the practice. And for that, we really do not care whether it is legal to advocate for unsound practices. We care whether Facebook can be required to provide a forum for such advocacy, and also be required to keep silent as to its own views regarding the subject.

This comment has been flagged by the community. Click here to show it.

restless94110 (profile) says:

Dis and dis and dat

So this prof was discredited and disgraced, eh? Looks like he was MeToo’ed after talking positively about Kavanaugh’s frame up. So then he was framed.

Since when is he disgraced? How is he discredited? Looks like he may have hit on a student. So what? Who cares? Why is this the framing for a story on Big Tech monopoly and censorship?

The issue is the totalitarianism, not if some hetero dude said something to some people about some things.

This comment has been deemed insightful by the community.
Rocky says:

Re: Dis and dis and dat

So this prof was discredited and disgraced, eh? Looks like he was MeToo’ed after talking positively about Kavanaugh’s frame up. So then he was framed.

It’s amazing that you can’t even get basic facts right. It wasn’t the professor who talked positively about Kavanaugh.

Since when is he disgraced? How is he discredited?

He was suspended for 2 years from Yale for sexual misconduct.

Looks like he may have hit on a student. So what? Who cares?

That you don’t think it’s wrong for a teacher to hit on a student is quite telling. You also managed to answer your first 2 questions yourself which tells us that your reasoning skills are lacking.

Why is this the framing for a story on Big Tech monopoly and censorship?

It’s not the framing of the story, but one can easily come to that conclusion if one lacks basic skills in reading comprehension.

Now, I don’t expect an answer to this post since your MO is to come here and shit-post after which you take off like the dishonest coward you are.

Lostinlodos (profile) says:

I’m just glad they left it up!

Facebook shouldn’t be attacked for leaving things up. It’s clearly not censorship here.

Generally these people don’t communicate much outside their church or the “school” attached to it. You know, god will protect them if they are worthy and all that.

Hopefully Facebook can claim legal fees when they win such cases.

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