On Monday, August 17, 2020, Children’s Health Defense filed a lawsuit against Facebook, Inc. in the U.S. District Court, Northern District of California. The lawsuit alleges that Facebook acted jointly or in concert with federal government agencies or actors to deny Children’s Health Defense’s First Amendment speech and Fifth Amendment property rights. At issue in the case is Facebook’s use of fact-checking warning labels and Facebook’s disabling of the fundraising feature on Children’s Health Defense’s Facebook page.
Children’s Health Defense is an anti-vaccination group founded by Robert F. Kennedy, Jr. The group bills itself 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.” The group’s Facebook page has approximately 122,830 followers. From January 2019 to May 2019, the Facebook page in question generated $41,241 in user donations.
The facts around the lawsuit center around Congressman Adam Schiff’s threat to “introduce legislation to remove Facebook’s immunity under Section 230 of the Communications Decency Act” unless Facebook acted to “‘distinguish’ and suppress ‘vaccine misinformation’ and advertising.” The lawsuit alleges that the Centers for Disease Control and Prevention collaborated with Facebook to “suppress vaccine safety speech with a ‘warning label’ and other notices that appear to flag disinformation.” Since September 2019, Facebook has applied a warning label to Children’s Health Defense’s Facebook page. This warning label states that “this page posts about vaccines” and links to the Centers for Disease Control and Prevention’s website. On May 2, 2019, Facebook deactivated the fundraising feature on the group’s Facebook page for violating Facebook’s fundraising terms and conditions. Further, Facebook blocked the group’s ability to purchase online ads promoting the group.
Children’s Health Defense’s first cause of action is based on Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), implied under 28 U.S.C. § 1331. The complaint “seeks an implied private damages remedy against private defendants who act jointly or in concert with federal government agencies or actors to deny Plaintiff’s First Amendment speech and Fifth Amendment property rights.” The complaint asks the judicial branch to “affirm a bedrock principle of liberty that governmental agencies cannot legally ‘sub-contract’ or ‘privatize’ the role of public censor to Facebook as an end-run around the Constitution.”
The second cause of action is centered on a false promotion claim of the Lanham Act, 15 U.S.C. § 1225(a)(1)(B). The complaint alleges that Facebook “made, authored, and published the warning label. . . in order to deter Plaintiff’s followers and other consumers from listening to, trusting, and relying on Plaintiff’s content, and donating or contributing to Plaintiff.” Further, by pointing users to the government website, Facebook “intended to persuade consumers instead to follow the CDC’s recommendations to get the vaccines produced by its major advertisers. . . who buy $1 billion per annum in advertisements from Facebook.”
The third cause of action alleges wire fraud violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). The complaint alleges that Facebook, Facebook’s fact-checkers, and Facebook’s content management team “function as a continuing unit for a common purpose – to damage Plaintiff’s trade and property interests, to divert users of their page to the CDC, and to unjustly enrich themselves – by fraudulent means.” The fourth and final cause of action is brought under the Declaratory Judgment Act, 28 U.S.C. § 2201(a). The complaint states such a judicial declaration is necessary so that Children’s Health Defense “may ascertain its rights to publish content on those pages without any interference, censorship, warning labels, ‘shadowbanning,’ ‘deboosting,’ ‘sandboxing,’ or other deceptive means and methods.”
The complaint requests $5 million or more in treble and punitive damages against Facebook, along with an injunction and declaratory judgment ordering Facebook to remove the warning labels.
Anti-vaccination group sues Facebook over fact-checking program, The Verge (August 18, 2020)
Children’s Health Defense v. Facebook Inc. et al (Case No. 3:2020cv05787)
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