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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Samuel Abram (profile), 11 May 2021 @ 9:25am

    "Disgraced Yale Law Professor"

    I'm disappointed that a techdirt post is about a Disgraced Ivy League Law Professor and the Professor is not Alan Dershowitz.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 11 May 2021 @ 10:36am

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 May 2021 @ 11:59am

      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)

      reply to this | link to this | view in chronology ]

  • icon
    Rico R. (profile), 11 May 2021 @ 11:59am

    Man, what a title!

    For a second, I thought I stumbled onto a parody of Techdirt by that title. It takes a very special person to make anti-vaxxers spreading misinformation on Facebook to NOT be the WORST bad guy(s) in the story!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2021 @ 12:02pm

    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.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 11 May 2021 @ 1:45pm

    '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.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 May 2021 @ 3:18pm

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

      It's obvious that even the freest of speech needs moderation, if only to avoid SPAM or other abuses, but that creates the necessary evil of abuse of power by moderators.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 May 2021 @ 6:44pm

      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!?"

      reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 11 May 2021 @ 6:54pm

      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.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 May 2021 @ 9:29pm

        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.

        reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 14 May 2021 @ 11:49pm

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 May 2021 @ 3:15pm

    Courts have very consistently ruled that private media are not state actors.

    They could very easily give everyone a page on the IRS website where they could say what they want as long as their taxes are current!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    restless94110 (profile), 12 May 2021 @ 12:54pm

    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.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 12 May 2021 @ 1:21pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 12 May 2021 @ 8:07pm

      Re: Dis and dis and dat

      Looks like he was MeToo'ed after talking positively about Kavanaugh's frame up. So then he was framed.

      [Asserts facts not in evidence]

      reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 14 May 2021 @ 7:54am

    A Funny Kind of Defense

    so wrong that I had difficulty writing it up. And that was before Rubenfeld joined the defense team

    Well, actually, I think that Rubenfeld is on the plaintiff's side in the case. Perhaps CHD should also be defending against a claim for criminial stupidity, but for the moment they are plaintiffs and not defendants.

    reply to this | link to this | view in chronology ]

  • icon
    Lostinlodos (profile), 15 May 2021 @ 4:54pm

    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.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.