Court filing
Federal Defendants’ Motion to Dismiss — Hart v. Facebook
Filed March 17, 2022 in Hart v. Facebook; one of 10 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of California, San Francisco Division |
|---|---|
| Filed | 2022-03-17 |
U.S. District Court for the Northern District of California, San Francisco Division · No. 3:22-cv-00737-CRB · Doc. 69 · 2022-03-17 · Docket on CourtListener
Full text
Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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BRIAN NETTER
Deputy Assistant Attorney General
STEPHANIE HINDS
United States Attorney
ERIC BECKENHAUER
Assistant Director, Federal Programs Branch
KUNTAL CHOLERA
Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20005
Tel.:
(202) 305-8645
Fax:
(202) 616-8470
Attorneys for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
JUSTIN HART,
Plaintiff,
v.
FACEBOOK, INC., et al.,
Defendants.
No. 3:22-cv-00737-CRB
DEFENDANTS’ NOTICE OF MOTION
AND MOTION TO DISMISS;
MEMORANDUM OF POINTS AND
AUTHORITIES
Date:
April 21, 2022
Time:
2:00 p.m.
Case 3:22-cv-00737-CRB Document 69 Filed 03/17/22 Page 1 of 29
Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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TABLE OF CONTENTS
NOTICE OF MOTION AND MOTION TO DISMISS ................................................................. 1
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 4
I.
Misinformation on Social Media. ........................................................................... 4
II.
Social Media Companies’ Efforts to Stem COVID-19 Misinformation. ................ 5
III.
The Surgeon General’s Advisory on Building a Healthy Information
Environment. ........................................................................................................... 6
IV.
Facebook’s and Twitter’s Alleged Response to Plaintiff’s Social Media
Posts ..................................................................................................................... 9
V.
This Action. ........................................................................................................... 10
Standard of Review ....................................................................................................................... 10
Argument ...................................................................................................................................... 11
I.
Plaintiff lacks standing to assert its First Amendment claim against the
Federal Defendants................................................................................................ 11
II.
Plaintiff fails to state a First Amendment claim against the Federal
Defendants. ........................................................................................................... 15
A.
Plaintiff fails to show coercion or a similar degree of
encouragement. ......................................................................................... 17
B.
Plaintiff fails to show that the Federal Defendants dictated
Facebook’s or Twitter’s actions ................................................................ 17
Conclusion .................................................................................................................................... 22
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Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ....................................................................................................... 11, 18, 21
Association of American Physicians (“AAPS”) & Surgeons v. Schiff,
518 F. Supp. 3d 505 (D.D.C. 2021) ..................................................................................... 14, 15
Blum v. Yaretsky,
457 U.S. 991 (1982) ............................................................................................................ passim
Brunette v. Humane Soc’y of Ventura Cty.,
294 F.3d 1205 (9th Cir. 2002);
as ameded on denial of reh’g and reh’g en banc (Aug. 23, 2002) ............................................ 16
Children’s Health Deense v. Facebook,
Case No. 20-CV-05787-SI, 2021 WL 2662064 (N.D. Cal. June 29, 2021) ........................ 20, 21
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ............................................................................................................... 11, 12
Cook v. Brewer,
637 F.3d 1002 (9th Cir. 2011) ................................................................................................... 11
Florer v. Congregation Pidyon Shevuyim, N.A.,
639 F.3d 916 (9th Cir. 2011) ..................................................................................................... 17
Franklin v. Massachusetts,
505 U.S. 788 (1992) ................................................................................................................... 22
FW/PBS Inc. v. Dallas,
493 U.S. 215 (1990) ................................................................................................................... 11
Idaho Conservation League v. Mumma,
956 F.2d 1508 (9th Cir. 1992) ................................................................................................... 12
Jackson v. Metro. Edison Co.,
419 U.S. 345 (1974) ................................................................................................................... 16
Lazy Y Ranch Ltd. v. Behrens,
546 F.3d 580 (9th Cir. 2008) ..................................................................................................... 22
Lee v. City of Los Angeles,
250 F.3d 668 (9th Cir. 2001) ....................................................................................................... 6
Leite v. Crane Co.,
749 F.3d 1117 (9th Cir. 2014) ................................................................................................... 10
Lloyd Corp., Ltd. v. Tanner,
407 U.S. 551 (1972) ................................................................................................................... 16
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Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) ................................................................................................................... 12
Mathis v. Pac. Gas & Elec. Co.,
75 F.3d 498 (9th Cir. 1996) ................................................................................................. 16, 17
Nw. Requirements Utilities v. F.E.R.C.,
798 F.3d 796 (9th Cir. 2015) ..................................................................................................... 12
O’Shea v. Littleton,
414 U.S. 488 (1973) ................................................................................................................... 12
Phiffer v. Proud Parrot Motor Hotel, Inc.,
648 F.2d 548 (9th Cir. 1980) ..................................................................................................... 13
Rendell-Baker v. Kohn,
457 U.S. 830 (1982) ................................................................................................................... 19
Skilstaf, Inc. v. CVS Caremark Corp.,
669 F.3d 1005 (9th Cir. 2012) ................................................................................................... 11
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ................................................................................................................... 11
Whitmore v. Arkansas,
495 U.S. 149 (1990) ................................................................................................................... 12
Rules
Fed. R. Civ. Proc. 12(b) ....................................................................................................... 1, 10, 11
Other Authorities
Confronting Health Misinformation: The U.S. Surgeon General’s Advisory on Building
a Healthy Information Environment CRS Report, Social Media: Misinformation and
Content Moderation Issues for Congress (July 15, 2021),
https://www.hhs.gov/sites/default/files/surgeon-general-misinformation-advisory.pdf ......... 7, 8
CRS Report, Social Media: Misinformation and Content Moderation Issues for Congress
(Jan. 27, 2021),
https://crsreports.congress.gov/product/pdf/R/R46662 ............................................................... 4
Hearing Before the United States House of Representatives, Committee on Energy and
Commerce, Subcommittees on Consumer Protection & Commerce and Communications
& Technology (Mar. 25, 2021) (Testimony of Jack Dorsey),
https://docs.house.gov/meetings /IF/IF16/20210325/111407/HHRG-117-IF16-Wstate-
DorseyJ-20210325.pdf ................................................................................................................. 6
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Hearing Before the United States House of Representatives, Committee on Energy and
Commerce, Subcommittees on Consumer Protection & Commerce and
Communications & Technology (Mar. 25, 2021) (Testimony of Mark Zuckerberg),
https://docs.house.gov/meetings/IF/IF16/ 20210325/111407/HHRG-117-IF16-
Wstate-ZuckerbergM-20210325-U1.pdf ..................................................................................... 6
https://twitter.com/TwitterSafety/status/1186403736995807232 .................................................... 5
Press Briefing by Press Secretary Jen Psaki (July 16, 2021),
https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/16/
press-briefing-by-press-secretary-jen-psaki-july-16-2021 .......................................... 7, 9, 17, 21
Press Briefing by Press Secretary Jen Psaki and Surgeon General Dr. Vivek H. Murthy
(July 15, 2021),
https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/15/press-
briefing-by-press-secretary-jen-psaki-and-surgeon-general-dr-vivek-h-murthy-
july-15-2021............................................................................................................................. 7, 9
“Strategy for Stopping False News.” Tessa Lyons, Hard Questions: What’s Facebook’s
Strategy for Stopping False News? (May 23, 2018),
https://about.fb.com/news/2018/05/hard-questions-false-news................................................... 5
Vijaya Gadde & Matt Derella, An update on our continuity strategy during COVID-19
(Mar. 16, 2020; updated Apr. 1, 2020),
https://blog.twitter.com /en_us/topics/company/2020/An-update-on-our-continuity-
strategy-during-COVID-19. ..................................................................................................... 5, 6
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NOTICE OF MOTION AND MOTION TO DISMISS
PLEASE TAKE NOTICE that on Thursday, April 21, 2022, at 2:00 p.m., or as soon
thereafter as counsel may be heard, before The Honorable Charles R. Breyer, in Courtroom 6, 17th
Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California, the
defendants will move, and hereby do move, to dismiss this action under Rule 12(b)(1) and 12(b)(6)
of the Federal Rules of Civil Procedure. This motion is based on the following Memorandum of
Points and Authorities and any other written or oral argument that may be presented at or before
the time this motion is heard by the Court.
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Social media companies have been fighting misinformation for some time, since at least
2018, and turned those efforts toward COVID-19 early in the pandemic, as early as February 2020.
Under their respective community standards and misinformation policies, Facebook and Twitter
allegedly disciplined Plaintiff due, in part, to posts they determined to contain COVID-19
misinformation, beginning in September 2020. Plaintiff now brings a First Amendment claim
against U.S. Surgeon General Vivek Murthy and President Joseph R. Biden (for purposes of this
motion, the “Federal Defendants”) based on general strategies for addressing COVID-related
misinformation that Surgeon General Murthy recommended to the public in July 2021—more than
a year after Facebook and Twitter began to address COVID-19 misinformation—and he argues that
these private companies’ independent decisions to discipline him amount to state action attributable
to the federal government. Plaintiff’s claim lacks merit and should be dismissed.
To start, Plaintiff lacks standing for three independent reasons. First, he seeks only
prospective relief against the Federal Defendants, but alleges only past harm—not that he will
certainly be subject to some imminent, future injury. While he alleges that Facebook and Twitter
previously disciplined him, he fails to allege that he will soon be subject to similar remedial
measures. He does not allege that he plans to soon post messages similar to those that previously
resulted in discipline, or that he will necessarily be subject to remedial measures again if he does.
Thus, Plaintiff fails to establish the certainly impending future injury necessary to obtain
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prospective equitable relief.
Second, Plaintiff fails to establish a causal link between the Federal Defendants and any
remedial measures that were taken by (or may be taken by) Facebook and Twitter against him.
Multiple other factors may have led these companies to police misinformation on their platforms;
e.g., they may have independently decided that misinformation is detrimental to public health and
safety, or they may have concluded that misinformation on their platforms may cause their users to
move to competing platforms. The Complaint contains no well-pled allegations justifying the
inference that Facebook and Twitter chose to target posts containing misinformation because of the
Federal Defendants, rather than one or more of the other possible causes. As noted, the companies
began policing misinformation, and disciplining Plaintiff, well before the Federal Defendants
recommended anti-misinformation strategies to the public—suggesting that the former could not
have caused the latter. Just recently, in Association of American Physicians & Surgeons v. Schiff,
another district court dismissed an analogous suit for lack of standing based on the same reasoning.
518 F. Supp. 3d 505 (D.D.C. 2021), aff’d sub nom. Ass’n of Am. Physicians & Surgeons, Inc. v.
Schiff, 23 F.4th 1028 (D.C. Cir. 2022).
Third, Plaintiff cannot establish that the relief he seeks against the Federal Defendants
would redress any alleged injury. Even if the Court enjoined the Federal Defendants from
recommending anti-misinformation strategies, Facebook and Twitter could still independently
decide to continue to take action against misinformation. There is no indication that they would
withdraw their misinformation policies and allow any of their users to post messages discouraging
COVID-19 safety precautions. Accordingly, Plaintiff cannot establish any standing requirement—
injury, causation, or redressability—and the Court may dismiss their First Amendment claim
against the Federal Defendants for that reason alone.
But even if Plaintiff could establish standing, his First Amendment claim would fail on the
merits, as he cannot meet his high burden to show that the independent actions of Facebook and
Twitter—two private companies—amount to state action. While a plaintiff may sometimes
establish a Constitutional claim against the federal government based on actions taken by a private
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party, it is rare: He must show that the federal government “coerc[ed]” or “provided such
significant encouragement” for the private party to take the precise action at issue “that the choice
must in law be deemed to be that of the” government. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
Where the federal government simply recommends approaches under which a private party retains
discretion in deciding whether to take the action at issue, then the action is not attributable to the
federal government. For three reasons, Plaintiff cannot establish a First Amendment claim under
this standard.
First, Plaintiff’s allegations do not establish that the Federal Defendants either coerced
Facebook or Twitter, or encouraged them to a degree effectively amounting to coercion, to take
any particular action or adopt any particular policy. To the contrary, Plaintiff’s allegations
demonstrate only that certain government officials proposed general strategies for combatting
misinformation—strategies that private companies, including Facebook and Twitter, were free to
adopt or disregard as they saw fit.
Second, Plaintiff does not allege that Federal Defendants called on Facebook or Twitter to
specifically target any of Plaintiff’s posts. Although certain officials called on social medial
platforms to address “misinformation,” there is no well-pled allegation indicating that any Federal
Defendant specifically proclaimed that any of Plaintiff’s posts contain misinformation. Nor is there
any allegation that Federal Defendants provided a definition of “misinformation” that would
necessarily encompass any of Plaintiff’s posts. To the contrary, Federal Defendants indicated that
there is no concrete definition of “misinformation,” leaving social media platforms with
undisturbed discretion to decide whether any particular post contains misinformation. Facebook
and Twitter therefore independently concluded that certain of Plaintiff’s posts included
misinformation, a decision that cannot be attributed to the federal government. Recently, in
Children’s Health Defense v. Facebook Inc., Judge Illston dismissed a nearly identical suit for
precisely this reason. No. 20-CV-05787-SI, 2021 WL 2662064, at *1 (N.D. Cal. June 29, 2021).
Third, even if Plaintiff had adequately alleged that some federal government official
encouraged Facebook or Twitter to target Plaintiff’s posts in particular, there is no well-pled
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allegation indicating that Federal Defendants encouraged either platform to take any specific
remedial action against him, much less to temporarily disable his account. The materials the
Complaint relies upon suggest only that Federal Defendants simply proposed several potential
actions that social media companies could take against those spreading misinformation, leaving it
to the companies to decide what actions, if any, they found proper. Once more, Facebook and
Twitter thus independently decided to discipline Plaintiff, and that action therefore cannot be
attributed to the federal government. Plaintiff’s First Amendment claim thus fails on the merits.
The Court should dismiss the First Amendment claim against the Federal Defendants.
BACKGROUND
I.
Misinformation on Social Media.
Misinformation is a challenge that social media companies have been dealing with for some
time. Several features unique to social media “contribute to the amplification and spread of
potential misinformation,” including “(1) the use of data mining and algorithms to sort, prioritize,
recommend, and disseminate information,” and “(2) the maximization of user engagement”—and
often “online advertising revenue”—“as the foundation of social media companies’ business
models.” CRS Report, Social Media: Misinformation and Content Moderation Issues for Congress
(Jan. 27, 2021), at 2, https://crsreports.congress.gov/product/pdf/R/R46662.
To address this problem, social media platforms have developed “a range of content
moderation practices,” which they have “altered . . . over time.” Id. at 2, 7. For example, in 2018,
Facebook stated that “[f]alse news has long been a tool for economic or political gains”—used, for
instance, “by adversaries in recent elections and amid ethnic conflicts around the world”—and
detailed its “Strategy for Stopping False News.” Tessa Lyons, Hard Questions: What’s Facebook’s
Strategy for Stopping False News? (May 23, 2018), https://about.fb.com/news/2018/05/hard-
questions-false-news. Facebook explained that it would: (i) “Remove accounts and content that
violate our Community Standards” and “polices in other categories, such as spam, hate speech or
fake accounts”; (ii) “partner[] with third-party fact-checkers to review and rate the accuracy of
articles and posts on Facebook,” and “[w]hen these organizations rate something as false, . . . rank
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those stories significantly lower” in users’ news feeds; and (iii) “Inform people by giving them
more context on the posts they see,” such as by directing users to other reporting on the subject. Id.
Similarly, in 2019, Twitter announced that it was “working on a new policy to address synthetic
and
manipulated
media.”
@TwitterSafety,
Twitter,
(Oct
21,
2019,
6:07
pm),
https://twitter.com/TwitterSafety/status/1186403736995807232.
II.
Social Media Companies’ Efforts to Stem COVID-19 Misinformation.
Social media platforms turned their efforts to combat misinformation toward COVID-19
early in the pandemic. For example, Plaintiff himself alleges that “in February 2020, Facebook
announced it would remove posts that suggested the virus was man-made” because it then believed
“the theory had been debunked” based on the findings of “public health officials.” Compl. (Facts)
¶ 40. Likewise, Twitter “introduc[ed] . . . policies on March 18,” 2020, to “address content that
goes directly against guidance from authoritative sources of global and local public health
information.” Vijaya Gadde & Matt Derella, An update on our continuity strategy during COVID-
19 (Mar. 16, 2020; updated Apr. 1, 2020), https://blog.twitter.com /en_us/topics/company/2020
/An-update-on-our-continuity-strategy-during-COVID-19. Twitter explained that it would “require
people to remove tweets that include,” for example, the “[d]enial of global or local health authority
recommendations to decrease someone’s likelihood of exposure to COVID-19 with the intent to
influence people into acting against recommended guidance, such as: ‘social distancing is not
effective.’” Id. The company reported that, within two weeks, it had “removed more than 1,100
tweets containing misleading and potentially harmful content” and “challenged more than 1.5
million accounts which were targeting discussions around COVID-19 with spammy or
manipulative behaviors.” Id.
Additionally, on March 25, 2021, the CEOs of both Facebook and Twitter testified before
Congress about the initiatives their respective platforms had independently developed to combat
COVID-related misinformation. Mark Zuckerberg—Chief Executive Officer (“CEO”) of
Facebook’s parent company, Meta Platforms—testified that Facebook has “made fighting
misinformation and providing people with authoritative information a priority, and has developed
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an “industry-leading fact-checking program” that involves “80 independent third-party fact-
checkers.” Testimony of Mark Zuckerberg, Hearing Before the United States House of
Representatives, Committee on Energy and Commerce, Subcommittees on Consumer Protection &
Commerce and Communications & Technology, https://docs.house.gov/meetings/IF/IF16/
20210325/111407/HHRG-117-IF16-Wstate-ZuckerbergM-20210325-U1.pdf, at 2 (Mar. 25,
2021).1 Mr. Zuckerberg testified that these initiatives have specifically targeted COVID-related
misinformation. See id. at 3 (Facebook works to “keep harmful misinformation about Covid-19
from spreading on” its platform). Mr. Zuckerberg also stated that when “content” on Facebook “is
rated false, [Facebook] significantly reduce[s] its distribution.” Id. at 2. Thus, he testified that as of
March 2021, Facebook had “remov[ed] over 12 million pieces of false content” involving “Covid-
19 misinformation.” Id. at 3. Facebook also “enhanced [its] recidivism policies” to target repeat
offenders, and also “use[s] information from fact-checkers to improve [its] technology so [it] can
identify misinformation faster in the future.” Id. at 2; see also id. at 3 (Facebook “barr[ed] entities
that have repeatedly shared false information” concerning COVID-19). Twitter CEO Jack Dorsey
similarly discussed Twitter’s “COVID-19 and vaccine misinformation policies,” noting that it
“use[s] a combination of machine learning and human review to assess potential violations of the
Twitter Rules,” and that “[i]f an account owner breaks our Rules,” its “Tweet” may be “delete[d].”
Testimony of Jack Dorsey, Hearing Before the United States House of Representatives, Committee
on Energy and Commerce, https://docs.house.gov/meetings /IF/IF16/20210325/111407/HHRG-
117-IF16-Wstate-DorseyJ-20210325.pdf, at 1-2 (Mar. 25, 2021). Thus, from the start of 2020, both
Facebook and Twitter had independently begun developing policies and initiatives to identify, and
take action against, misinformation on their platforms.
III.
The Surgeon General’s Advisory on Building a Healthy Information Environment.
In July 2021, long after Facebook and Twitter began targeting COVID-19 misinformation,
the recently confirmed U.S. Surgeon General issued an “Advisory” discussing the role of
misinformation in the pandemic and offering “recommendations” to address it. Confronting Health
1 “[A] court may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250
F.3d 668, 689 (9th Cir. 2001).
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Misinformation: The U.S. Surgeon General’s Advisory on Building a Healthy Information
Environment,
https://www.hhs.gov/sites/default/files/surgeon-general-misinformation-
advisory.pdf, at 3 (July 15, 2021) (hereinafter, “Advisory”).2 As the Advisory explains, health
“[m]isinformation has caused confusion and led people to decline COVID-19 vaccines, reject
public health measures as masking and physical distancing, and use unproven treatments.” Id. at 4.
And as the Surgeon General noted at a press briefing announcing the Advisory’s release, “polls”
showed “that [at one point,] two thirds of people who [were] not vaccinated either believe[d] in
common myths about the COVID-19 vaccine or [thought] some of those myths might be true.”
Press Briefing by Press Secretary Jen Psaki and Surgeon General Dr. Vivek H. Murthy,
https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/15/press-briefing-by-press-
secretary-jen-psaki-and-surgeon-general-dr-vivek-h-murthy-july-15-2021, at 5 (July 15, 2021)
(hereinafter, “7-15 Press Briefing”). Health misinformation “has [thus] led to avoidable illness and
death.” Id. at 2. Indeed, “99.5 percent of people who are in hospitals because of COVID are
unvaccinated.” Press Briefing by Press Secretary Jen Psaki, https://www.whitehouse.gov/briefing-
room/press-briefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021,
22
(July 16, 2021) (hereinafter, “7-16 Press Briefing”). Further, “[m]isinformation has also led to
harassment of and violence against public health workers, health professionals, airline staff, and
other frontline workers tasked with communicating evolving public health measures.” Advisory, at
4. “[D]octors and nurses across our country,” consequently, “are burning out.” 7-15 Press Briefing,
at 4.
The 22-page Advisory offers a variety of “recommendations” about what various segments
of society “can do” to slow the spread of health misinformation—including “individuals, families,
and communities,” “educators and educational institutions,” “health professionals and health
organizations,” “journalists and media organizations,” “researchers and research institutions,” and
“governments.” Advisory, at 3. On the single page addressing “technology platforms,” the
Advisory proposes a number of general strategies. For example, the Advisory notes that technology
2 Internal citations and quotation marks are omitted throughout this brief, unless otherwise stated.
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platforms may (i) help researchers “properly analyze the spread and impact of misinformation” by
“[g]iv[ing] researchers access to useful data,” (ii) counter misinformation by “[d]irect[ing] users to
a broader range of credible sources,” and (iii) “build ‘frictions’ . . . to reduce the sharing of
misinformation,” which may include “suggestions and warnings” on certain posts. Id. at 12.
As the Advisory notes, it serves as “a public statement that calls the American people’s
attention to a public health issue and provides recommendations for how that issue should be
addressed.” Id. at 3. While it proposes various strategies for containing misinformation, it does not
purport to impose any obligations on social media companies, nor to displace their discretion to
decide whether any particular post contains misinformation, and if so, what remedial action may
be proper. The Advisory explicitly notes that “[d]efining ‘misinformation’ is a challenging task,”
and that there is no “consensus definition of misinformation.” Id. at 17; see also id. at 4 (“any
definition” of “misinformation will have “limitations”). It also cautions against the use of an overly
stringent definition of “misinformation,” noting that “it is important to be careful and avoid
conflating controversial or unorthodox claims with misinformation” since “[t]ransparency,
humility, and a commitment to open scientific inquiry are critical.” Id. at 17. The Advisory likewise
encourages social media companies to consider “potential unintended consequences of content
moderation, such as migration of users to less-moderated platforms.” Advisory, at 12. It stresses
that, in considering “[w]hat kinds of measures” they may “adopt to address misinformation,” social
media companies should consider the importance of “safeguarding . . . free expression.” Id. at 7.
In press briefings surrounding the Advisory’s release, the White House Press Secretary
stated that certain government officials are “in regular touch with social media platforms . . . about
areas where [the Administration has] concern” and that the discussions are aimed at “better
understand[ing] the enforcement of social media platform policies.” 7-16 Press Briefing, at 6; see
also 7-15 Press Briefing, at 9. She did not, however, suggest that these officials promoted any
particular definition of “misinformation,” or that they pressured social media platforms to take any
particular action with respect to posts containing misinformation. To the contrary, the Press
Secretary stated that “Facebook and any private-sector company” ultimately “makes decisions
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about what information should be on their platform.” 7-16 Press Briefing, at 12; see also id. at 7
(“They’re . . . private-sector compan[ies]. They’re going to make decisions about additional steps
they can take.”).
IV.
Facebook’s and Twitter’s Alleged Responses to Plaintiff’s Social Media Posts.
Plaintiff alleges that Facebook has been taking action against his posts since at least
September 2020, whether for violating its Community Standards or its COVID-related
misinformation policies. In mid-September 2020, Facebook issued a “warning” against a July 2020
post for containing “[f]alse information about COVID-19.” Compl. (Facts) ¶ 35. Later that month,
it banned him from advertising and “going live” for 30 days for a post referencing Joseph Goebbels
that violated its Community Standards. Id. ¶ 36. In April 2021, Facebook “restricted [Plaintiff’s]
ability . . . to post or comment for 24 hours” because three posts “violated its Community
Standards”—one suggesting that a “co-founder” of the Black Lives Matter movement was a
“trained Marxist” siphoning donations; another post not described in the Complaint; and a third
stating: “This is the truth: Covid is almost gone in America” and “[h]ospitals are literally empty.”
Id. ¶ 37. And on July 13, 2021, Facebook “flagged” Plaintiff’s post containing a chart titled
“Masking Children is Impractical and Not Backed by Research or Real World Data,” id. ¶¶ 1-2,
noting that it “goes against [Facebook’s] standards on misinformation,” and prohibited Plaintiff
from “post[ing] or comment[ing] for 3 days” in view of his “previous post[s] that didn’t follow [its]
Community Standards.” Id. ¶ 4.
Plaintiff alleges that Twitter similarly took action against one of his posts. On July 18, 2021,
Plaintiff posted on Twitter that “the CDC just reported that 70% of those who came down with
#COvId19 [sic] symptoms had been wearing a mask,” “masks don’t protect you,” and “you have
to wonder if [masks] are part of the problem.” Compl. (Facts) ¶ 5. Twitter, in response, “locked
[Plaintiff’s] account” because his post “[v]iolat[ed] [Twitter’s] policy on spreading misleading and
potentially harmful information related to COVID-19.” Id. ¶ 6. (For simplicity, the aforementioned
enforcement actions taken by Facebook and Twitter against Plaintiff are referred to as the
“Remedial Measures.”).
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Defs’ Motion to Dismiss; Memo.
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Plaintiff does not allege that he made any other, similar COVID-related posts on Facebook
or Twitter, and if so, whether the companies took any action in response. Plaintiff also does not
allege that he plans to make similar posts in the future on either Facebook or Twitter.
V.
This Action.
Plaintiff brings six claims, only two of which concern the federal government defendants.
In Count II, Plaintiff asserts a Freedom of Information Act (“FOIA”) claim against the Department
of Health and Human Services and the Office of Management and Budget. That claim is not further
addressed here. In Count I—the subject of this motion—Plaintiff asserts a First Amendment claim
against Surgeon General Murthy and President Biden (for purposes of this motion, the “Federal
Defendants”), arguing that because the Surgeon General and certain unnamed White House staff
recommended general strategies to stem misinformation, they are responsible for the independent
decisions by Twitter and Facebook to take the Remedial Measures. Plaintiff seeks only prospective,
equitable relief against the Federal Defendants based on this claim. See Compl., at 21-22 (seeking
a declaratory judgment and injunction against the Surgeon General and President). The Federal
Defendants now move to dismiss the First Amendment claim.
STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(1) challenges the Court’s subject matter jurisdiction.
In reviewing a facial challenge to subject matter jurisdiction, the Court accepts the well-pled
allegations of the complaint as true, and determines whether those allegations are sufficient to
establish jurisdiction. Leite v. Crane Co., 749 F.3d 1117, 1121-22 (9th Cir. 2014). However, in
assessing its jurisdiction, the Court may consider extra-pleading facts, such as those set forth in
declarations, and if necessary may resolve disputed jurisdictional facts, without converting the
motion to one for summary judgment. See id.
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The necessary facts “must affirmatively appear in the record” and
“cannot be inferred argumentatively from averments in the pleadings.” FW/PBS Inc. v. Dallas, 493
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U.S. 215, 231 (1990). Bare “conclusions” are “not entitled to the assumption of truth,” and so a
complaint does not “suffice if it tenders naked assertion[s] devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678-69. “While the pleading standard for Rule 8(a) is liberal, the [f]actual
allegations must be enough to raise a right to relief above the speculative level.” Cook v. Brewer,
637 F.3d 1002, 1006 (9th Cir. 2011). Under Rule 12(b)(6), the Court may consider materials
incorporated into the complaint by reference, as well as judicially noticeable materials, without
converting the motion into one for summary judgment. See Skilstaf, Inc. v. CVS Caremark Corp.,
669 F.3d 1005, 1016 n.9 (9th Cir. 2012).
ARGUMENT
I.
Plaintiff lacks standing to assert its First Amendment claim against the Federal
Defendants.
Plaintiff lack standing to seek relief against the Federal Defendants on his First Amendment
claim. To establish standing, a plaintiff must show that [he] is under threat of suffering ‘injury in
fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or
hypothetical; it must be fairly traceable to the challenged action . . . ; and it must be likely that a
favorable judicial decision will prevent or redress the injury.” Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009).
Moreover, to obtain prospective equitable relief—the only type of relief that Plaintiff
seeks—it is not enough to allege a past injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983); O’Shea v. Littleton, 414 U.S. 488, 495-96 (1973) (“Past exposure to illegal conduct does
not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by
any continuing, present adverse effects.”). Rather, Plaintiff must demonstrate that he faces a “real
and immediate threat” of future harm. Lyons, 461 U.S. at 102. The “threatened injury must be
certainly impending” to suffice; allegations of “possible future injury do not satisfy . . . Art. III.”
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (emphasis added).
In addition, where, as here, “the plaintiff is not [himself] the object of [a] government
action,” standing “is ordinarily ‘substantially more difficult’ to establish.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 562 (1992). Here, Plaintiff cannot satisfy any of these standing requirements.
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Defs’ Motion to Dismiss; Memo.
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Prospective Injury. Plaintiff fails to show that he will be subject to a “certainly impending”
future injury. Although he claims that prior posts he made on Facebook and Twitter resulted in
remedial action, he alleges no facts establishing that he will again post such messages on Facebook
or Twitter. Additionally, Plaintiff provides no details concerning any hypothetical, future posts that
would allow the Court to infer that those would be the types of posts against which Facebook and
Twitter would inevitably take action. Thus, Plaintiff has failed to establish the “certainly
impending” injury necessary for prospective relief. Cf. Lyons, 461 U.S. at 105-06 (although the
plaintiff “may have been” subject to unlawful conduct, that “does nothing to establish a real and
immediate threat that he would again be” subject to the same conduct in the future).
Causation. Plaintiff also fails to establish that any hypothetical future injury—or, for that
matter, any of his alleged past injuries—will be (or were) caused by the Federal Defendants, rather
than the independent decisions of Facebook and Twitter. To satisfy the causation requirement, a
plaintiff “must show that the injury is causally linked or fairly traceable to the [defendants], and
not the result of independent choices by” other parties. Nw. Requirements Utilities v. F.E.R.C., 798
F.3d 796, 806 (9th Cir. 2015); see also Idaho Conservation League v. Mumma, 956 F.2d 1508,
1517–18 (9th Cir. 1992) (“[T]he causation question . . . concern[s] only whether the Plaintiff’s]
injury . . . is dependent upon [the defendant’s] policy, or is instead the result of independent
incentives governing [other parties’] decisionmaking process[es].”). The Ninth Circuit has
described the Article III causation requirement as a “‘but for’ causation” requirement. Phiffer v.
Proud Parrot Motor Hotel, Inc., 648 F.2d 548, 552 (9th Cir. 1980) (emphasis added).
Here, the Complaint is bereft of factual support for the conclusory allegation that any
remedial actions that Facebook and Twitter have taken (or may again take) against Plaintiff were
(or will) be attributable to the Federal Defendants rather than the companies’ independent
judgment. Many other factors may have led Facebook and Twitter to decide to combat
misinformation, irrespective of the Surgeon General’s recommendations. For example, Facebook
and Twitter may have independently concluded that misinformation in general—and
misinformation concerning COVID-19 in particular—is harmful to the public, and that their
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Defs’ Motion to Dismiss; Memo.
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platforms should adopt measures to address misinformation. Likewise, they may have concluded
that the rampant spread of misinformation on their platforms would drive their users towards other
platforms that employ superior quality-control measures. The Complaint does nothing to suggest
that the disciplinary actions Facebook and Twitter took against Plaintiff were driven, not by these
independent considerations, but rather by the Federal Defendants’ mere suggestions. For example,
Plaintiff does not allege that either Facebook or Twitter stated that, but for the Surgeon General’s
Advisory, they would not attempt to counter COVID-related misinformation on their platforms.
To the contrary, the chronology of events, as reflected in Plaintiff’s own allegations, firmly
undermines any inference of a causal link. Plaintiff alleges that the Federal Defendants
recommended anti-misinformation strategies beginning in or around mid-July 2021. See supra at
7-8. Yet public statements from Facebook and Twitter show that they have been addressing
misinformation in general since at least 2018, and began targeting COVID-related misinformation
as early as February 2020—long before Plaintiff alleges that Federal Defendants called attention to
the problem. See supra at 5-7. Those statements are consistent with Plaintiff’s own allegations,
which indicate that Facebook started taking action against his posts, whether for violating its
Community Standards or COVID-related misinformation policies, in September 2020—again, well
before the Federal Defendants’ alleged involvement. Specifically, Plaintiff alleges that “[o]n or
around September 15, 2020, Facebook issued [him] a warning regarding a post he had made in July
2020,” and that “the warning claimed, ‘False information about COVID-19 found in your post.’”
Compl. (Facts) ¶ 35. Plaintiff also alleges that, “[o]n April 23, 2021, Facebook restricted the ability
of [Plaintiff] to post or comment for 24 hours” in part because of a post he made stating that “Covid
is almost gone in America.” Compl. (Facts) ¶ 37. Thus, the chronology shows that Facebook and
Twitter began taking action against misinformation long before the Federal Defendants allegedly
started recommending anti-misinformation strategies, refuting any suggestion that the latter caused
the former.
This case thus closely resembles Association of American Physicians (“AAPS”) &
Surgeons v. Schiff, where the U.S. District Court for the District of Columbia dismissed an
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analogous lawsuit because the plaintiff lacked standing. 518 F. Supp. 3d 505 (D.D.C. 2021), aff’d
sub nom. Ass’n of Am. Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028 (D.C. Cir. 2022).
There, the plaintiff alleged that Congressman Adam Schiff sent letters and made public statements
“encourag[ing]” certain technology companies—including Facebook and Twitter—to “prevent . . .
inaccurate information on vaccines,” and that these companies “took several adverse actions against
[the plaintiff] because of Congressman Schiff’s statements.” Id. at 510. The court ultimately found
that the plaintiff failed to establish standing, in part because its allegations did not show that its
“alleged harms stem[med] from . . . Congressman Schiff.” Id. at 515. The court noted that the
plaintiff “ignore[d] the innumerable other potential causes for the actions taken by the technology
companies,” and that the alleged “statements made by Congressman Schiff” did “not mention [the
plaintiff]” and did “not advocate for any specific actions.” Id. at 515-16. The court further noted
that the relevant statements by “Congressman Schiff” occurred “after the technology companies
took many of the actions” at issue, and thus the plaintiff “fail[ed] to establish a chronological chain
of causation between” Congressman Schiff’s statements and the “actions taken by the technology
companies.” Id. at 516 n.12. The D.C. Circuit affirmed the district court’s reasoning, confirming
that “[t]he timeline of events in the . . . complaint . . . undermine[d] any possibility that the
companies acted at Representative Schiff’s behest in particular” because “Facebook announced its
new policy of prioritizing government-sponsored vaccine information in search results in March
2019 . . . and Twitter introduced its” similar policy “in May 2019.” Ass’n of Am. Physicians &
Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1034 (D.C. Cir. 2022).
The AAPS court’s reasoning applies equally here: (i) Plaintiff likewise ignores the
“innumerable other potential causes for the actions taken by” Facebook and Twitter, (ii) there is no
well-pled allegation that the Federal Defendants “mention[ed] [the Plaintiff]” or “advocate[d] for
any specific actions” against Plaintiff, and (iii) the companies were already policing misinformation
before the Federal Defendants allegedly started recommending the anti-misinformation strategies
at issue. Accordingly, Plaintiff fails to establish a causal link between the Federal Defendants and
any adverse actions that Facebook or Twitter have taken, or will take, against Plaintiff.
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Defs’ Motion to Dismiss; Memo.
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Redressability. Even if Plaintiff had shown that that he would again post information that
violates the policies of Facebook and Twitter; that the companies would certainly take remedial
action against him; and that they would do so because of the Federal Defendants, rather than as an
exercise of their independent judgment, he would still lack standing, as he cannot show that
equitable relief would redress those injuries. Were the Court to enter the equitable relief that
Plaintiff requests—e.g., to “[e]njoin Murthy and Biden from [allegedly] directing social media
companies to censor information with which Murthy and Biden disagree,” Compl. at 22 ¶ B,
Facebook and Twitter could still independently conclude that it is in their interest to take those
remedial steps—as the sequence of events indicates they have been doing all along. See supra at 5-
8. Thus, Plaintiff cannot show that the equitable relief he seeks would redress his alleged injuries.
Again, AAPS is instructive. The court there found that the plaintiff lacked standing not only
because it failed to establish causation, but also because “[i]t [was] pure speculation that any order
directed at Congressman Schiff . . . would result in the [technology] companies changing their
behavior” towards the plaintiff. AAPS, 518 F. Supp. 3d at 516. The court stressed that it was “not
plausible” that Facebook or Twitter would suddenly “revise their policies on medical
misinformation” as a result of an injunction restraining Congressman Schiff’s activities. Id. So too
here. Accordingly, Plaintiff fails to establish any of the requirements for standing to seek injunctive
relief against the Federal Defendants, and Count I should be dismissed against them for lack of
jurisdiction.
II.
Plaintiff fails to state a First Amendment claim against the Federal Defendants.
Even if Plaintiff could establish standing, his First Amendment claim against the Federal
Defendants would fail on the merits. Plaintiff claims injury based on remedial actions taken by
Facebook and Twitter—both private companies. But the First Amendment “safeguard[s] the rights
of free speech” by imposing “limitations on state action, not on action by” private parties. Lloyd
Corp., Ltd. v. Tanner, 407 U.S. 551, 567 (1972) (emphasis added). While a plaintiff may sometimes
establish a First Amendment claim based on private conduct if it “can fairly be seen as state action,”
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982), those circumstances are extraordinarily narrow:
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the government “can be held responsible for a private decision only when it has exercised coercive
power or has provided such significant encouragement, either overt or covert, that the choice must
in law be deemed to be that of the” government. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
“Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify
holding the” government “responsible for those initiatives.” Id.
In addition to establishing coercion or a degree of encouragement approaching it, a plaintiff
must also show that the government called on the private party to take the precise action at issue—
i.e., by “dictat[ing] the decision” made “in [that] particular case,” id. at 1010, or insisting that the
private party follow a “standard that would have required” that action, Mathis v. Pac. Gas & Elec.
Co., 75 F.3d 498, 503 (9th Cir. 1996) (emphasis added). It is not enough to show that the
government recommended a general policy under which the private party retained discretion over
whether to take the particular action at issue.3 Mathis, 75 F.3d at 502 (“It wasn’t enough to show
that [the private party]” was driven by “a generalized federal concern” or “standards [that] would
have required” action “on some materially different set of facts.”); Jackson v. Metro. Edison Co.,
419 U.S. 345, 357 (1974) (the “exercise of choice allowed by” a government policy “where the
initiative comes from [the private party] and not from the [government], does not make [the] action
in doing so ‘state action’” under the Constitution).
These standards present a formidable bar to a plaintiff attempting to show that private
conduct should be considered state action for First Amendment purposes: “While [courts]
sometimes treat acts of private parties as public, [they] do so sparingly.” Mathis, 75 F.3d at 501;
see also Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011) (courts
3 This specificity requirement applies regardless of how Plaintiff tries to frame his claim. For
example, Plaintiff asserts not only that the Federal Defendants “encouraged” Facebook and Twitter
to address misinformation, but also that the Federal Defendants “conspired” with Facebook and
Twitter. See Compl. (Facts) ¶ 59. But to attribute private conduct to the government based on an
alleged conspiracy, a plaintiff must still show that the government entered into “an agreement or a
conspiracy to violate [the plaintiff’s] rights in particular.” See Brunette v. Humane Soc’y of Ventura
Cty., 294 F.3d 1205, 1212 (9th Cir. 2002) (emphasis added), as amended on denial of reh’g and
reh’g en banc (Aug. 23, 2002).
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must “start with the presumption that conduct by private actors is not state action”). Plaintiff falls
well short of that bar here.
A.
Plaintiff fails to show coercion or a similar degree of encouragement.
To start, Plaintiff contends that Facebook and Twitter were “subject to government
compulsion,” Compl. ¶ 61, but he alleges no well-pled factual material to substantiate that claim—
and it is plainly incorrect. While he claims that the Surgeon General “created and published an
entire 22-page Advisory with instructions on how social media companies should remove [certain]
posts, id. ¶ 18 (emphasis added), in fact the Advisory consists merely of “recommendations,”
Advisory at 3, only a single page of which addresses “technology platforms,” id. at 12. Those
recommendations, of course, are not binding on anyone. And it is difficult to fathom how Facebook
and Twitter, two of the most dominant social media companies on the planet, could have been
“coerc[ed]” by these recommendations, Blum, 457 U.S. at 1004—a term that is commonly
understood to mean compulsion by threat, which there is no allegation of here.
Nor does Plaintiff allege facts establishing that the Federal Defendants provided “such
significant encouragement” that “the choice must in law be deemed to be that of the” government.
Blum, 457 U.S. at 1004. To be sure, the Advisory sets out various recommendations that the
Surgeon General hopes will be adopted. But there is nothing unusual about using the bully pulpit
to press for change on important issues, and doing so hardly converts private choices into state
action. Just like the educators, journalists, and health professionals who were also addressed in the
Advisory, Facebook and Twitter were free to adopt or ignore the Surgeon General’s
recommendations, with no threat of punishment. After all, as the Press Secretary noted during the
Advisory’s rollout, it is “Facebook and any private-sector company” that ultimately “makes
decisions about what information should be on their platform.” 7-16 Press Briefing, at 12.
B.
Plaintiff fails to show that the Federal Defendants dictated Facebook’s or
Twitter’s actions.
Even if Plaintiff had shown coercion or the like, his First Amendment claim against the
Federal Defendants would still fail because his allegations do not show that the Federal Defendants
dictated the precise actions that Facebook and Twitter took here—i.e., by specifically targeting any
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of Plaintiff’s posts on the grounds that they contain “misinformation,” or by imposing a definition
of “misinformation” that would necessarily encompass any of Plaintiff’s posts. To the contrary, the
Surgeon General acknowledged that there was no concrete definition of “misinformation,” see
supra at 8-9, and that when companies are deciding whether particular posts contain
misinformation, they should “avoid conflating controversial or unorthodox claims with
misinformation,” Advisory, at 17. Likewise, the Press Secretary repeatedly clarified that social
media companies must make the ultimate decision over how they will address misinformation.4 See
supra at 8-9.
Accordingly, the strategies recommended by the Federal Defendants did nothing to disturb
Facebook’s and Twitter’s discretion to determine which posts contained “misinformation,” and
consequently which posts may warrant remedial action. Facebook and Twitter therefore necessarily
exercised their independent judgment to conclude that certain of Plaintiff’s social media posts
contained misinformation, and that remedial measures were appropriate. Those actions are
attributable to Facebook and Twitter, not the Federal Defendants.
Blum is instructive. In that case, the plaintiffs—Medicaid recipients in nursing homes—
asserted constitutional claims against a state government based on the decisions of private
physicians to transfer the plaintiffs to lower cost nursing homes. 457 U.S. at 991. The plaintiffs
argued that they were transferred only because of government regulations requiring nursing homes
to transfer patients to lower cost facilities when the higher cost facilities are not “medically
necessary.” See id. at 994, 1008. The plaintiffs thus argued that the government was ultimately
responsible for the transfer decisions made by the plaintiffs’ private physicians. But the Supreme
Court rejected this argument, noting that although the government imposed a general “medical
necessity” transfer requirement, the factual determination of “whether [a] patient’s care is
4 To be sure, the Complaint does include a conclusory allegation that “[o]n information and belief,
Defendants Biden and Murthy directed . . . Facebook and Twitter to” take action against
“[Plaintiff’s] social media posts.” Compl. (Facts) ¶ 20. The Complaint, however, lacks any “factual
enhancement” for this allegation, and thus it is “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 679. Indeed, the Complaint provides no basis for inferring that any Federal Defendant was
even aware of Plaintiff in particular, or the precise social media posts at issue in this litigation.
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medically necessary”—and thus whether the patient will ultimately be transferred—is “made by
[a] private part[y]” (the physician). Id. at 1006-08. Thus, the government “regulations themselves
d[id] not dictate the decision to . . . transfer in a particular case.” Id. at 1010. The Court further
explained:
[A]lthough . . . transfers are made possible and encouraged [by the government
regulations] for efficiency reasons, they can occur only after the decision is made
that the patient does not need the care he or she is currently receiving. The
[government] is simply not responsible for that decision . . . [and] if a particular
patient objects to his transfer to a different nursing facility, the ‘fault’ lies not with
the [government] but ultimately with the judgment, made by concededly private
parties, that he is receiving expensive care that he does not need.
Id. at 1008 n.19 (emphasis added); see also Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982)
(noting that the Court found state action lacking in Blum even though “[b]oth state and federal
regulations encouraged the nursing homes to transfer patients to less expensive facilities when
appropriate”).
The same reasoning applies even more forcefully here: unlike in Blum, where the decisions
of private parties were governed by federal regulation, here the Federal Defendants’
recommendations are entirely voluntary. But even putting that aside, much as in Blum, where
private parties had to apply the regulatory “medical necessity” standard, here the Federal
Defendants allegedly called on social media platforms to address “misinformation.” However, the
ultimate decision of whether a particular social media post contains “misinformation” (or sufficient
“misinformation” to merit some enforcement action) is left to the social media companies. See
supra at 8-9. The Federal Defendants thus did not “dictate the decision” over whether
misinformation was present “in [Plaintiff’s] particular” posts. Blum, 457 U.S. at 1010.
Mathis is similarly instructive. There, the plaintiff claimed that a government agency was
responsible for the decision of a private company to terminate the plaintiff’s employment. In
particular, the plaintiff—an employee at a nuclear power plant—claimed that “in workplace
conversations, [he] agreed to sell marijuana offsite,” and was consequently fired because the
Nuclear Regulatory Commission (“NRC”) had informally pressed the employer to adopt a policy
of “exclud[ing]” employees for “offsite drug involvement.” Id. at 501-02. The Ninth Circuit
Case 3:22-cv-00737-CRB Document 69 Filed 03/17/22 Page 24 of 29
Defs’ Motion to Dismiss; Memo.
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concluded, however, that the NRC was not responsible for the plaintiff’s loss of employment. Even
assuming the agency had generally promoted an anti-drug policy, it did not specifically call for the
policy to apply to employees such as the plaintiff (who “was essentially a messenger”), nor did it
specifically target “the type of conduct [the plaintiff] was suspected of.” Id. at 502. Thus, there was
“no indication that the NRC had proposed a standard that would have required [the employer] to
exclude [the plaintiff].” Id. at 503. Here, similarly, the Federal Defendants’ proposed “standard”
(that social media platforms address “misinformation”) did not necessarily “require[]” Facebook
and Twitter to target or “exclude” any of Plaintiff’s specific posts.
For similar reasons, Judge Illston recently dismissed a nearly identical suit. In Children’s
Health Defense v. Facebook, the plaintiff claimed that Facebook violated the First Amendment by
“censor[ing] [the plaintiff’s] vaccine safety speech” on the platform at the encouragement of
Congressman Schiff and the Centers for Disease Control (“CDC”). No. 20-CV-05787-SI, 2021 WL
2662064, at *1 (N.D. Cal. June 29, 2021). In particular, the plaintiff alleged that Congressman
Schiff “urge[d] that Facebook implement specific algorithms to identify, censor and remove all so-
called ‘vaccine misinformation,’” and that the CDC “works with ‘social media partners,’” including
Facebook, “in its ‘Vaccine with Confidence’ initiative.” Id. at *2-4. The plaintiff alleged that, as a
result of governmental pressure, Facebook took action against certain posts by the plaintiff
identifying alleged “severe health dangers of certain vaccines and technologies.” Id. at *4. The
court, however, found that neither Congressman Schiff nor the CDC was responsible for the
disciplinary actions Facebook took against the plaintiff. It explained: “the phrase ‘vaccine
misinformation’ is a general one that could encompass many different types of speech and
information about vaccines,” and thus the “general statements” by Congressman Schiff and the
CDC concerning “vaccine misinformation” did not “mandate[] the particular actions that Facebook
took with regard to [the plaintiff’s] Facebook page.” Id. at *9, 12 (emphasis added). The court
further noted that Facebook took those “particular actions” based on “its own algorithms and
standards for detecting ‘vaccine misinformation.’” Id at *12 (emphasis added). The same is true
Case 3:22-cv-00737-CRB Document 69 Filed 03/17/22 Page 25 of 29
Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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here, as Plaintiff similarly fails to show that the Federal Defendants dictated a finding that any of
Plaintiff’s specific posts constituted misinformation warranting any remedial action.
Moreover, even if Plaintiff had shown otherwise, his claim would still fail for a separate
reason: he does not adequately allege that the Federal Defendants encouraged Facebook or Twitter
to take any particular remedial action against Plaintiff, much less the precise Remedial Measures
at issue here (temporarily suspending Plaintiff from the platforms). As explained above, social
media companies had to exercise independent judgment in settling on any particular enforcement
action. The Advisory, for example, proposes a range of potential remedies—including just labeling
posts that contain misinformation—and cautions that companies should assess those remedies, both
to determine whether there may be “unintended consequences” and to ensure that the remedies
would not unjustifiably impede “free expression.” See supra at 8; Advisory at 12 (noting that
offending content may be “labeled” or “downranked,” and that social media companies may
address misinformation by “[p]rovid[ing] information from trusted and credible sources”). Further,
the Press Secretary also reiterated that although government officials endorsed several strategies
for containing misinformation, social media companies ultimately had to make the independent
decision of which strategies (if any) to adopt. See supra at 8-9. She further explained:
[T]o be crystal clear: Any decision about platform usage and who should be on the
platform is orchestrated and determined by private-sector companies. Facebook is
one of them . . . [a]nd there are a range of media who are—also have their own
criteria and rules in place, and they implement them. And that’s their decision to
do. That is not the federal government doing that.
7-16 Press Briefing, at 30. Thus, Facebook and Twitter independently chose to adopt the Remedial
Measures, temporarily suspending Plaintiff’s accounts due to his anti-mask posts—a decision that
was neither “coerc[ed]” nor taken only upon “such significant encouragement” that it “must in law
be deemed to be that of the” government. Blum, 457 U.S. at 1004.5 Plaintiff therefore fails to state
a First Amendment claim against the Federal Defendants.
5 Plaintiff again alleges, in conclusory fashion, that “Biden and Murthy directed Defendants
Facebook and Twitter to remove [Plaintiff’s] social media posts.” Compl. (Facts) ¶ 20 (emphasis
added). The Court, however, need not credit this allegation. First, there is no factual support for
this allegation, and thus it is not and thus the Court need not “entitled to the assumption of truth.”
Iqbal, 556 U.S. at 679. Second, as explained above, this allegation contradicts statements in the
Case 3:22-cv-00737-CRB Document 69 Filed 03/17/22 Page 26 of 29
Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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CONCLUSION
The Court should grant the Federal Defendants’ Motion to Dismiss Plaintiff’s First
Amendment claim against them (Count I). At a minimum, the Court should dismiss the First
Amendment claim insofar as it applies to, and is used a justification for injunctive relief against,
the President. See Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (a “grant of injunctive
relief against the President himself [would be] extraordinary,” and “in general,” courts have “no
jurisdiction of a bill to enjoin the President in the performance of his official duties”).
Dated: March 17, 2022
Respectfully submitted,
BRIAN NETTER
Deputy Assistant Attorney General
STEPHANIE HINDS
United States Attorney
ERIC BECKENHAUER
Assistant Director, Federal Programs Branch
/s/ Kuntal Cholera
KUNTAL CHOLERA DC Bar No. 1031523
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W.
Washington, DC 20005
Tel: (202) 305-8645
Fax: (202) 616-8470
Advisory along with the Press Briefing referenced in the Complaint, see supra at 8-9, and the Court
“need not accept as true allegations contradicting documents that are referenced in the complaint,”
Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
Case 3:22-cv-00737-CRB Document 69 Filed 03/17/22 Page 27 of 29
Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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Email: kuntal.cholera@usdoj.gov
Counsel for Defendants
Case 3:22-cv-00737-CRB Document 69 Filed 03/17/22 Page 28 of 29
Defs’ Motion to Dismiss; Memo.
No. 3:22-cv-00737-CRB
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
JUSTIN HART,
Plaintiff,
v.
FACEBOOK, INC., et al.,
Defendants.
No. 3:22-cv-00737-CRB
[PROPOSED] ORDER ON
DEFENDANTS’ MOTION TO DISMISS
[PROPOSED] ORDER
For the reasons set forth in the Memorandum of Points and Authorities submitted by
Defendants Vivek Murthy in his official capacity as the United States Surgeon General and Joseph
R. Biden, Jr. in his official capacity as President of the United States, the Court GRANTS their
Motion to Dismiss Count 1 of Plaintiff’s Complaint insofar as it applies to them.
It is SO ORDERED this ____day of __________, 2022.
______________________________
The Honorable Charles R. Breyer
United States District Judge
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