As you may have heard, last week Robert F. Kennedy Jr. and his anti-vax organization “Children’s Health Defense” filed a supremely stupid lawsuit against Facebook, Mark Zuckerberg, and fact checking organizations Poynter and Politifact among others. It was filed early last week and I’ve wanted to write it up since someone sent it to me a few hours after it was filed, but, honestly, this lawsuit is so incredibly stupid that every time I tried to read through it or write about it, my brain just shut down. I’ve been incredibly unproductive the last week almost entirely because of this silly, silly lawsuit and my brain’s unwillingness to believe that a lawsuit this stupid has been filed. And, as regular readers know, I write about a lot of stupid lawsuits. But this one is special.
The basis (if you can call it that) for this lawsuit is that Kennedy is mad that Facebook is blocking the medical disinformation he and his organization publish. Because it’s wrong. And dangerous. And stupid. They have every right to do this, of course, so the lawsuit has to come up with the dumbest possible reason to argue as a basis for a lawsuit. We’ve covered lots of other bad lawsuits about content moderation, but the knots Kennedy and his team tie themselves in to make this argument is truly special (and I don’t mean that in a positive way):
This is a case about how an officer and an agency within the U.S. Government “privatized” the First Amendment by teaming up with Facebook to censor speech which, under the Bill of Rights, the Government cannot censor. In February 2019, Democratic Congressman Adam Schiff (D-CA) threatened to introduce legislation to remove Facebook’s immunity under Section 230 of the Communications Decency Act unless Facebook implemented algorithms to “distinguish” and suppress “vaccine misinformation” and advertising. The Centers for Disease Control and Prevention (“CDC”) and, under its aegis, the World Health Organization (“WHO”) then collaborated at length with Facebook to suppress vaccine safety speech with a “warning label” and other notices that appear to flag disinformation, but in reality censor valid and truthful speech, including speech critical of those agencies and their policies. A judicial remedy is urgently required to redress that system of prior restraint which will otherwise go unredressed.
Try to read that without having your brain drip out of your ears. It’s really difficult. To reiterate, Kennedy is arguing that the 1st Amendment has been “privatized” (?!?) because one Congressman threatened to remove Facebook’s 230 protections if it didn’t deal with vaccine misinfo. Now, to be clear, I’ve complained for well over a decade that it’s totally inappropriate for elected officials to tell internet platforms how to moderate specific content. But, even if there were an issue here, the complaint would be with Adam Schiff, not Facebook.
I’m just as annoyed by Schiff threatening 230 over this as anyone, and I believe that pulling 230 would not help the situation at all. But it’s simply laughable to argue that Schiff’s demands turned Facebook into a government actor. Yet that’s what the lawsuit argues.
Facebook making the decision that it does not want to be the central source for spreading anti-vax nonsense is something that it is free to do on its own. There is no legitimate argument for suing Facebook over this decision.
Here, government actors actively partnered with one of today’s leading “printing presses” (Facebook) to censor Plaintiff’s speech critical of government policy. The framers were familiar with the English struggle and enacted the First Amendment to establish and preserve the right of the People to full information about the doings or misdoings of their government. Grosjean, 297 U.S. at 247-49. This case mirrors the framers’ concerns. The government cannot accomplish indirectly what the Constitution forbids it to do directly.
THEN SUE THE GOVERNMENT. But, he did not. He sued Facebook and Zuckerberg. Why? For [reasons].
This is also a case of corporate fraud against Facebook and its Chairman Mark Zuckerberg, inter alia, for their smear campaign against Plaintiff consisting of false content that Facebook itself created, as well as knowingly false suggestions, and other acts of fraud and deception on or concerning Plaintiff’s Facebook page. At a time when the social media platform and its creator claim to be exponents of free expression and the scientific method for discovering truth, this case reveals the opposite: that they are indeed censors, and opponents of real science and open debate.
Sir, this is a Wendy’s. A case of corporate fraud against Facebook? And that’s why you’re suing Facebook? What are you even talking about?
Children’s Health Defense (“CHD”) and its founder Robert F. Kennedy, Jr. (“RFK, Jr.”) have built CHD’s good name and reputation as a public health advocate for complete candor as to both the risks of environmental toxins, vaccines, 5G and wireless networks, and the conflicts of interest in government oversight of those products and services. Plaintiff’s online reputation is important to its standing as a preeminent leader in the health reform movement. CHD seeks $5 million or more in treble and punitive damages against the Facebook defendants for their deliberate use of the “known lie” to damage Plaintiff’s reputation and organization.
Oh shut the fuck up. You spew misinformation, Facebook is getting hammered from every direction for being a key venue through which such bullshit is spewed. Facebook, for good reasons, decides it doesn’t want to host your nonsense. Don’t like it? Go somewhere else.
Also, a lawsuit is no place to spew more nonsense conspiracy theories, but that’s what we’ve got here:
This case arises in a pandemic when the need for public debate on health issues has never been greater. CHD’s vision is a world free of childhood chronic health conditions caused by environmental exposures. Plaintiff highlights harms associated with the current vaccine program, pesticides, and deployment of 5G and other wireless technologies. Zuckerberg’s professed “moon shot mission” is “to cure all disease on the planet within the Facebook chairman’s children’s lifetimes.” Yet, defendants’ first giant leap for humankind is to censor CHD’s viewpoint which competes with Facebook’s business plan for pharmaceutical ad revenue, vaccine development, and 5G and wireless networks. One may question on that basis the sincerity of their vision in this and all things.
First of all, fuck off with the 5G conspiracy nonsense. Don’t spread bullshit. Second, this paragraph stupidly conflates the efforts Mark Zuckerberg is working on privately from his own foundation with the mission of Facebook itself. And they’re not moderating your content because it “competes with Facebook’s business plan.” Because what the fuck, dude? It’s not all about you.
And, even if for some reason Facebook was worried that you would somehow cut into its ad revenue (and it does not), so what? Under what bizarre legal standard do you actually think that Facebook is somehow required to host your nonsense? Oh, of course. A misreading of Packingham. [smacks forehead]
In Packingham v. North Carolina, 137 S. Ct. 1730, 1735-36 (2017), Justice Kennedy wrote of the potential harm that users of social media sites like Facebook can do, but his words ring true of the “mastermind” of that platform:
In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” [. . .] While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. [. . .] the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium. [. . .] For centuries now, inventions heralded as advances in human progress have been exploited by the criminal mind. New technologies, all too soon, can become instruments used to commit serious crimes. [. . .] So it will be with the Internet and social media.
Id. at 1735-36 (emphases added). Now comes this case to fulfill Justice Kennedy’s prediction, but with an unexpected twist. One of the titans of the internet age has exploited that new technology as an instrument to commit fraud and censorship.
Packingham was about why the government cannot pass a law that bars people from social media. It has zero effect on whether or not a private platform can call out bullshit and moderate the content on its platform as it sees fit. And, of course, in relying on Packingham, this case ignores the much more on point (and recent) ruling in Halleck that made it clear that private companies get to moderate as they see fit, and aren’t state actors just because you want them to be.
The complaint goes on and on about how awful it is that Facebook’s actions against vaccine nonsense got support from the dreaded CDC and the WHO. Now, the CDC and the WHO have, at times, said dumb things. And they are not the be all, end all of health information. But this filing makes it out like whatever the CDC and the WHO say is the exact opposite of what people should pay attention to all the time. And seems to suggest that in Facebook setting up rules to follow CDC and WHO guidelines, that it is somehow evidence of nefarious intent.
Honestly, so much of this 115 page lawsuit is like a legalistic version of the utter nonsense that shows up in our comments any time we call out anti-vax nonsense. Idiots with way too much free time on their hands and way too little understanding of evidence, statistics, data, and science, who spew utter nonsense with links they don’t understand, studies they haven’t read, and medical mumbo jumbo they do not grasp. It’s bullshit.
At some point about halfway through the filing, the lawyers finally recognize that Section 230, which allows Facebook to moderate however they want, may be a problem, and they try to address that in the most laughable way possible: by citing the famous Roommates.com case. We’ve talked about that case for many, many years. It was the first ruling that punched a bit of a hole in CDA 230, but it also (mostly) upheld content moderation. All it said was that if the site was involved in creating content that itself violated the law, then it might be liable for that content alone. In the Roommates case, that was content regarding the preferred race of a roommate, which violated fair housing law. There is nothing in Roommates that helps Kennedy here, even if he claims otherwise:
Facebook has an undoubted right “to control its own product, and to establish the terms with which its users, application developers, and advertisers must comply in order to utilize this product.” Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1076 (S.D. Cal. 2016). But, here, even Facebook cannot avoid liability for provable injury to Plaintiff’s property rights and intangible assets based on fraud and misrepresentation. See, e.g., Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (en banc) (service provider may be liable where it makes answering discriminatory questions a condition for doing business on its site).
Thus, Facebook’s ownership of its platform does not give it free rein to develop, create, and publish false and misleading content on CHD’s page, or to create tags which mislead third-party users about the truthfulness of content on CHD’s pages, or to drive traffic from CHD’s page to the CDC, to advance Facebook’s adverse business interests. Facebook’s control over the manner in which its users view its website does not encompass the right to commit acts of censorship, false disparagement, and fraud.
That is… not what the Roommates case says or means. It’s also not what Facebook is doing.
Over the past fifteen months or longer, defendants have carried out a fraudulent scheme to misrepresent, censor, and exclude CHD’s viewpoint on vaccine and 5G network safety.
Lol. No. That’s not how any of this works.
Most of Kennedy’s anger is over what he considers to be a “falsely disparaging warning label.” Of course, out here, in the real world, that’s what’s known as protected opinion under the 1st Amendment.
As alleged supra, on September 4, 2019, after “several months of discussion” with the WHO (Vaccine Misinformation: Statement by WHO Director-General on Facebook and Instagram, supra, https://www.who.int/news-room/detail/04-09-2019-vaccinemisinformation- statement-by-who-director-general-on-facebook-and-instagram), Facebook published a Warning Label in bold black letters at the top of CHD’s Page, which states:
This Page posts about vaccines
When it comes to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC) has information that can help answer questions you may have about vaccines.
Go to CDC.gov
Remember: that warning is what Kennedy calls “falsely disparaging.” What is false in the statement? What is disparaging? All it does is add more information and recommend people visit the CDC website. That’s neither false, nor disparaging. We get that kooks like Kennedy think the CDC is a problem, but that doesn’t make the label either false or disparaging.
Hell, given that, in this very lawsuit, Kennedy whines that Facebook is against hearing all sides of an issue, it is totally laughable that their main complaint is that… Facebook suggests people research other viewpoints from those presented by Kennedy and his merry band of gullible idiots.
Facebook’s warning label conveys in clear terms to any user that what they see on CHD’s page is not reliable and not up-to-date, and it directs the user instead to “go to CDC.gov” for reliable and up-to-date “information” about vaccines. Any user visiting a webpage scans the immediately-visible content before scrolling down to view the remainder of the content. Consequently, the top banner space of any webpage is valuable “screen realestate” where prime content can be shown. Facebook’s intended effect is to deprive CHD of this screen space and to redirect users away from CHD’s page to the CDC website.
Yeah, well, if you don’t like it, don’t spread debunked nonsense. Also, it does not convey that at all. That’s your own paranoia speaking.
Next, Kennedy gets upset that Facebook blocked a video of him ranting nonsensically about pharma giant Merck after their fact checking partners (co-defendants in the lawsuit) pointed out that the video was not accurate.
Facebook’s warning label on RFK’s January 15, 2019 videotape critical of Merck, Inc. was materially deceptive, in that the videotape is accurate with respect to its assertions of fact and is otherwise an expression of RFK, Jr.’s opinions, and not “False Information” as Facebook claims. Facebook’s warning label also omits material facts by failing to disclose its advertising-client relationship with Merck, Inc. See T. Staton, The top 10 pharma companies in social media, FIERCEPHARMA, https://www.fiercepharma.com/specialreport/ top-10-pharma-companies-social-media-0 (last accessed Aug. 14, 2020). Merck, Inc. is one of the top 10 social media spenders among pharmaceutical companies and heavily leverages Facebook as an advertising platform.
Facebook wasn’t removing the video because Merck is an advertiser. It’s removing the video because it’s kook nonsense, debunked by actual scientists. And even if it wasn’t, Facebook has every right to host what content it wants and not whatever RFK wants.
The lawsuit goes on and on and on whining about each time fact checkers called out nonsense and Facebook blocked videos. Again, Facebook has every right to do so. And then it complains about Facebook shutting down Kennedy’s group’s fundraising page and rejecting its many attempts to appeal that decision.
And then, of course, you get to the conspiracy theories. Because what else would you expect from a group deeply mired in spreading nonsense conspiracy theories, other than a lawsuit that spreads conspiracy theories. And so it is with Facebook supposedly “shadow banning” Kennedy’s group. Shadowbanning is the bogeyman of idiots online who insist there must be some grand conspiracy against them online when people don’t want to hear their nonsense. Shadowbanning, as a technique, is something that was tested relatively early on by Reddit, but which basically every online site that has experimented with it has found doesn’t do much and isn’t that useful. Idiots love to scream about how they were “shadowbanned” because it makes them seem like a victim when they can’t prove anything real happened. The “proof” here is that Facebook got a patent for moderating content.
On or about May 1, 2019, Facebook began covertly to demote and/or ban content (“shadow-ban”) that CHD posted to its Facebook page, effectively limiting its visibility and reach, and secondarily reducing ad revenue to CHD. Facebook owns a patent on social media shadowbanning. See United States Patent No. 10,356,024, Kanter et al. (Moderating content in an online forum), USPTO Patent Full-Text and Image Database, UNITED STATES PATENT AND TRADEMARK OFFICE (Jul 16, 2019), http://patft.uspto.gov/netacgi/nph- Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/searchbool. html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024 (last accessed Aug. 15, 2020). The patent describes the mechanism by which shadowbanning is accomplished: In one embodiment, the social networking system blocks banned comments by analyzing the text of the comments. For example, if a comment includes a profane word, as provided in a list of banned words, the social networking system will not display the comment to other users of the social networking system.
Additionally, in one embodiment, Facebook also performs a “sentiment analysis” to identify whether a comment includes sentiment that is banned under Facebook’s community standards, e.g., derogatory racial epithets. Finally, Facebook’s patent permits it to train a machine learning classifier to block comments based on Facebook content moderators’ actions of manually deleting comments or unblocking comments in the online forum. In one embodiment, the blocked comments are not displayed to the wider community of Facebook users. However, the blocked comments are displayed to the commenting user and his or her friends within the social networking system. As such, Facebook’s software creates a simulacrum in which the “offending” user — here CHD — is not aware that their comment or content is not displayed to other users of the forum. Since May 2019, Facebook has utilized this deceptive scheme in order to covertly limit or block CHD’s content while misrepresenting the visibility and reach of that content to CHD itself, and misrepresenting the totality of CHD’s content to all third-party users.
Newsflash: just because a company got a patent, it doesn’t mean that it’s being used. And certainly not in the way that you think.
Then, hilariously, Kennedy points to a document revealed by a “whistleblower” (and, it should be noted that this “whistleblower” info came from… the less than trustworthy Project Veritas organization, which has a long history of totally misrepresenting things) that proves Facebook is (*gasp*) experimenting with methods to limit the spread of undesirable information. Why is this a surprise? Why do you need a whistleblower. I’ll tell you straight up that every such website is experimenting with such methods because that’s part of what they do. Yet here, Kennedy reveals two internal slides from a low level Facebook employee suggesting ways to deal with trolls by making things annoying for them. Let’s be clear, this is the kind of thing that every single internet website thinks about at one point or another, because dealing with trolls is a fucking nuisance.
There is no evidence that this was ever actually implemented. But discussing and brainstorming around these kinds of techniques happens all the time. But it really says something when Robert Kennedy Jr. looks at these actions explicitly targeting trolls and assumes “yup, that’s what’s happening to me.” It seems he’s admitting that he knows he’s a troll.
From there, the lawsuit attacks various fact checkers. It claims that because the French organization Science Feedback is paid by Facebook to designate certain pages as having “false” or “partly false” info, that the site has incentive to categorize sites like that… in order to generate content to their own sites. That is… again… not how any of this works. Do fact checkers sometimes make mistakes? Absolutely. But they’re not doing it to generate clicks.
Under this arrangement, Facebook pays Science Feedback to classify content, and Facebook flags content for Science Feedback to evaluate and classify as part of their partnership. Science Feedback is paid by Facebook to find false stories, and here willfully marked Plaintiff’s content as “false” or “partly false” in order to generate traffic to its website through the warning and link, and to further its contractual partnership with Facebook. The “fact-checking” system Facebook created encourages this type of mislabeling. The Science Feedback fact-checkers have an obvious incentive to categorize a post as “False” rather than an accurate but less damaging classification of “Opinion,” because that is the only way Facebook will insert the clear warning with a prominent link to Science Feedback’s oppositional article. Facebook deceives its users by materially misrepresenting that its “fact-checkers” are “independent,” contractually or editorially. Significantly, the arrangement also permits Facebook and Science Feedback to create categorical exemptions from “fact-checking” where it suits Zuckerberg’s political or other biases, e.g., the “opinion” exemption for climate science deniers.
After this there’s a long section repeating a bunch of debunked nonsense about both vaccines and 5G. And if you’re going to be one of those idiots in the comments arguing about this, just go away. You’re too stupid and ignorant to be on this site.
Finally, at page 87, we get to the actual claims. The first claim is that there are 1st and 5th Amendment violations… by the private company defendants (Facebook and the fact checkers). Again, that’s not how any of this works. They’re arguing that these are Bivens violations, which is a reference to the famous Bivens case that established a cause of action against the federal government. You might notice an immediate problem. Facebook and the fact checkers are not the government. Here, Kennedy completely tries to muddy the waters with an insanely confusing claim, arguing that it really is the government because of Schiff’s comments. But he’s not suing the government. This… is really bad lawyering.
The second claim is… Lanham Act violations. What the fuck…? They’re claiming that the anodyne messages on the top of Kennedy’s page suggesting people also look to the CDC website is “false promotion.” Really. I wish I were joking. Let’s just say, this is utter nonsense:
The Lanham Act is not strictly limited to conduct that is unfair to a direct competitor, if defendant is affiliated with a competitor. Here, it suffices that defendants have actively cooperated with the CDC and WHO, with whom Plaintiff competes in the marketplace of ideas concerning genuine scientific inquiry into vaccine safety, and that Plaintiff competes with defendants in that same marketplace with respect to 5G network safety. Facebook is engaged in promoting competitive products through its pharmaceutical manufacturer advertisers, and competitive services through its affiliation with the CDC and WHO.
I feel bad that a judge has to actually read this shit.
The complaint then argues that CDA 230 doesn’t protect Facebook… because of reasons that do not match what any court has ever said about 230:
In publishing its false “warning label” and “fact-checks,” Facebook has acted, and continues to act, both as an interactive computer service provider and as “content provider.” Section 230(f)(3) defines an information content provider as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Under Ninth Circuit law, as to content that a website service provider creates itself, or is responsible in whole or in part for creating or developing, the website is also a content provider. Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (en banc); Fraley v. Facebook, 830 F. Supp. 2d at 801-02. Under the CDA, 47 U.S.C. § 230(f)(3), Facebook’s warning label and its other affirmative content-creation far exceed “a publisher’s traditional editorial functions,” Batzel v. Smith, 333 F.3d 1018, 1031 n.18 (9th Cir. 2003), and far exceed that content-creation of question-and-answer-sets which the Ninth Circuit found sufficient in the Roommates.com case. See, e.g., Roommates.com, 521 F.3d at 1163 (Congress did not seek to immunize “the creation of content.”) (emphasis added). Facebook has no immunity from liability for actionable harms arising from its fraudulent course of conduct.
And, there is a subtle point here that I will grant Kennedy. Section 230 does not protect the specific content of the warning label that Facebook applied to Kennedy’s page. It protects all of the moderation decisions, including the decision to put such a label on their page. But, what does protect the content is the 1st Amendment. There is nothing that violates any law for Facebook to recommend people visit the CDC’s website.
Kennedy then cites the President’s nonsense Executive Order on social media — which does not change the law in any way — as supporting this case.
Next up, Kennedy argues (you guessed it) RICO violations. And to that we’ll just respond with the necessary response from Ken “Popehat” White: IT’S NOT RICO, DAMMIT. It’s not. It’s not even close. There’s no conspiracy. There’s no enterprise. There’s no racketeering activity. The complaint argues that Facebook and Zuckerberg were trying to engage in a scheme to defraud through false or fraudulent pretense, but the only false or fraudulent pretenses seem to be coming from the plaintiff in this case.
The whole thing is insane. The lawyers (including Robert F. Kenney Jr., Mary Holland, and Roger Teich) should feel bad. This is not good lawyering. This is garbage. And, as filed in California, stupidly, it might even subject Kennedy and his group to California’s anti-SLAPP law, since they explicitly claim their complaint is with Facebook’s constitutionally protected speech suggesting people visit the CDC’s website. This case is likely to be thrown out, and it’s even possible that Kennedy will end up paying Facebook’s expensive legal bills.
(Check it out on the next page…)
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