Verified First Amended Complaint
- Date
- 2020-11-13
Summary
The Verified First Amended Complaint in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California, filed November 13, 2020 as Document 64. Plaintiff Children's Health Defense sues Facebook, Inc., Mark Zuckerberg, Science Feedback, The Poynter Institute for Media Studies, Inc. and Does 1-20. The caption lists four claims: First and Fifth Amendments (Bivens), the Lanham Act (15 U.S.C. § 1125(a)), RICO (18 U.S.C. § 1962) and declaratory relief, with a jury trial demand. The document includes a table of contents and table of authorities, and its prayer for relief seeks fees and costs, punitive damages and a public retraction. It is signed by Robert F. Kennedy, Jr., Mary S. Holland and Roger I. Teich and closes with a verification by the plaintiff's general counsel.
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 1 of 175
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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone: (415) 948-0045
E-Mail Address: rteich@juno.com
ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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CHILDREN’S HEALTH DEFENSE,
a Georgia non-profit organization,
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Plaintiff,
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v.
FACEBOOK, INC., a Delaware corporation;
MARK ZUCKERBERG, a California resident;
SCIENCE FEEDBACK, a French corporation;
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC., a Florida corporation; and
DOES 1-20,
Case No. 3:20-cv-05787-SI
VERIFIED FIRST AMENDED
COMPLAINT
1) FIRST AND FIFTH AMENDMENTS
(BIVENS);
2) LANHAM ACT (15 U.S.C. § 1125(a));
3) RICO FRAUD (18 U.S.C. § 1962);
4) DECLARATORY RELIEF.
JURY TRIAL DEMAND
Defendants.
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VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 2 of 175
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TABLE OF CONTENTS
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Page #
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TABLE OF AUTHORITIES .......................................................................................................iii
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VERIFIED FIRST AMENDED COMPLAINT ........................................................................... 1
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INTRODUCTION ........................................................................................................................ 2
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JURISDICTION AND VENUE ................................................................................................... 6
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PARTIES AND RELATED ENTITIES ...................................................................................... 7
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STATEMENT OF MATERIAL FACTS ................................................................................... 10
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A.
CHD’s Interest in Vaccine and 5G and Wireless Network Safety. ...................... 10
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B.
CHD’s Facebook Page. ........................................................................................ 14
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C.
The CDC/Facebook Partnership. .......................................................................... 16
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D.
Defendants’ Scheme to Defraud. ......................................................................... 23
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1.
Overview. .................................................................................................. 23
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2.
Means and Methods of Defendants’ Scheme. ........................................... 33
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3.
Falsely Disparaging Warning Label.......................................................... 36
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4.
Materially Deceptive use of “Fact-Checkers.”.......................................... 38
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a.
Facebook/”Fact-Checker” Agency Relationship. ..........................38
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b.
Specific Facebook “Fact-Checks” Containing Material
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Falsity. ............................................................................................44
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5.
Disabling CHD’s Fundraising and Ads..................................................... 73
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6.
Disabling CHD’s Right to “Appeal” These Actions. ................................ 74
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7.
Concealment of the Overall Scheme. ........................................................ 74
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8.
Continuing Injuries to CHD. ..................................................................... 83
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D.
Material Questions of Vaccine Safety. ................................................................. 84
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E.
Material Questions of 5G Network Safety. .......................................................... 90
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F.
Facebook’s Adverse Motives. .............................................................................. 96
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1.
Zuckerberg’s Personal Involvement and Biases. ...................................... 96
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2.
Vaccine-Maker Ad Revenue. .................................................................. 101
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3.
Vaccine Development. ............................................................................ 104
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4.
5G Networks. .......................................................................................... 105
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G.
No Affirmative Defense of CDA Section 230 Immunity. ................................. 108
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H.
Section 230 Immunity Plus Pressure Equals State Action. ................................ 109
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I.
The May 28, 2020 Executive Order. .................................................................. 110
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FIRST CAUSE OF ACTION
(FIRST AND FIFTH AMENDMENTS — BIVENS VIOLATIONS) .......................... 111
SECOND CAUSE OF ACTION
(LANHAM ACT VIOLATIONS — 15 U.S.C. § 1125(a)) .......................................... 120
THIRD CAUSE OF ACTION
(RICO — WIRE FRAUD VIOLATIONS) ................................................................... 139
FOURTH CAUSE OF ACTION
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(DECLARATORY RELIEF) ........................................................................................ 144
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DEMAND FOR JURY TRIAL ................................................................................................ 146
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PRAYER FOR RELIEF ........................................................................................................... 147
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VERIFICATION ...................................................................................................................... 148
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TABLE OF AUTHORITIES
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Federal Cases
3
Abrams v. United States,
250 U.S. 616 (1919) .......................................................................................................... 6, 79
4
5
6
7
8
9
Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970) ............................................................................................................ 116
Ashcroft v. Free Speech Coalition,
535 U. S. 234 (2002) ........................................................................................................... 115
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963) ...................................................................................................... 109, 110
10
11
Bass v. Facebook, Inc.,
394 F. Supp. 3d 1024 (N.D. Cal. 2019) .................................................................................. 4
12
13
14
15
16
17
18
19
20
21
22
23
24
Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) ............................................................................................ 109
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) ............................................................................................................ 111
Blum v. Yaretsky,
457 U.S. 991 (1982) ............................................................................................................ 115
Board of Regents of State Colleges v. Roth,
408 U.S. 564 (1972) ............................................................................................................ 117
Boatmon v. Sec’y of Health & Human Servs.,
No. 13-611V, 2017 WL 3432329 (Fed. Cl. Spec. Mstr. July 10, 2017) ............................... 60
Bolger v. Youngs Drug Products Corp.,
463 U.S. 60 (1983) .............................................................................................................. 121
Boston Chamber of Commerce v. Boston,
217 U.S. 189 (1910) ............................................................................................................ 117
25
26
27
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Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639 (2008) ................................................................................................ 79, 84, 142
Bridges v. California,
314 U.S. 252 (1941) .............................................................................................................. 33
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2
3
4
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Bruesewitz v. Wyeth LLC,
562 U.S. 223 (2011) .............................................................................................................. 84
Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961) ...................................................................................................... 30, 116
Carlin Communications Inc. v. Mountain States Tel. & Tel. Co.,
827 F.2d 1291 (9th Cir. 1987), cert. denied, 483 U.S. 1029 (1988) ................................... 116
6
7
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9
10
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12
13
14
15
16
17
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19
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Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co.,
173 F.3d 725 (9th Cir. 1999) ...................................................................................... 120, 121
Continental Airlines, Inc. v. Intra Brokers, Inc.,
24 F.3d 1099 (9th Cir. 1994) .............................................................................................. 145
Cook, Perkiss, and Liehe, Inc. v. N. Cal. Collection Serv.,
911 F.2d 242 (9th Cir. 1990) .............................................................................................. 124
Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001) .............................................................................................................. 112
Davis v. Passman,
442 U.S. 228 (1979) .................................................................................................... 111, 112
Davis v. Wyeth Laboratories,
399 F.2d 121 (9th Cir. 1968) ................................................................................................ 85
Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc.,
795 F.2d 1344 (7th Cir. 1986) ............................................................................................ 117
Dietrich v. John Ascuaga’s Nugget,
548 F.3d 892 (9th Cir. 2008) .............................................................................................. 119
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22
23
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25
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27
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Dodds v. Am. Broad. Co.,
145 F.3d 1053 (9th Cir. 1998) .................................................................................... 131, 134
Elrod v. Burns,
427 U.S. 347 (1976) ............................................................................................................ 145
Fair Hous. Council v. Roommates.com, LLC,
521 F.3d 1157 (9th Cir. 2008) (en banc) ........................................................ 33, 40, 108, 109
Fed. Agency of News LLC v. Facebook, Inc.,
432 F. Supp. 3d 1107 (N.D. Cal. 2020) ...................................................................... 113, 114
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Fonda v. Gray,
707 F.2d 435 (9th Cir. 1983) .............................................................................................. 115
Fraley v. Facebook,
830 F. Supp. 2d 785 (N.D. Cal. 2011) ........................................................................ 101, 108
Franklin v. Fox,
312 F.3d 423 (9th Cir. 2002) .............................................................................................. 113
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Freedman v. Maryland,
380 U.S. 51 (1965) .............................................................................................................. 112
Garrison v. Louisiana,
379 U.S. 64 (1964) .......................................................................................................... 6, 134
Gorenc v. Salt River Project Agric. Improvement & Power Dist.,
869 F.2d 503 (9th Cir. 1989) .............................................................................................. 113
Grasshopper House, LLC v. Clean & Sober Media LLC,
394 F. Supp. 3d 1073 (C.D. Cal. 2019) .............................................................................. 121
Grosjean v. American Press Co.,
297 U.S. 233 (1936) ................................................................................................................ 3
Hanover Star Milling Co. v. Metcalf,
240 U.S. 403 (1916) .............................................................................................................. 84
Harmoni Int’l Spice, Inc. v. Hume,
914 F.3d 648 (9th Cir. 2019) .............................................................................................. 143
Harte-Hanks Commc’ns Inc. v. Cunningham,
491 U.S. 657 (1989) ...................................................................................................... 25, 133
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Herbert v. Lando,
441 U.S. 153 (1979) ............................................................................................................ 134
In re Chrysler-Dodge-Jeep EcoDiesel Mktg., Sales Practices & Prods. Liab. Litig.
295 F. Supp. 3d 927 (N.D. Cal. 2018) ................................................................................ 143
Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974) ............................................................................................................ 115
Kaiser Foundation Health Plan, Inc. v. Pfizer, Inc. (In re Neurontin Mktg. & Sales
Practices Litig.),
712 F.3d 21 (1st Cir. 2013) ................................................................................................. 143
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Kelly v. United States,
140 S. Ct. 1565 (2020) .......................................................................................................... 84
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) ............................................................................ 127, 128, 130
Lexmark International, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 134 S. Ct. 1377 (2014) ................................................................................... 84
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Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922 (1982) .................................................................................................... 113, 116
Manhattan Cmty. Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) ........................................................................................................ 113
Manufactured Home Communities, Inc. v. County of San Diego,
544 F.3d 959 (9th Cir. 2008) .............................................................................................. 131
Masson v. New Yorker Magazine, Inc.,
501 U.S. 496 (1991) .................................................................................... 130, 131, 132, 133
Mendoza v. Zirkle Fruit Co.,
301 F.3d 1163 (9th Cir. 2002) ............................................................................................ 143
Metabolife Int’l Inc. v. Wornick,
264 F.3d 832 (9th Cir. 2001) ...................................................................................... 131, 139
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) ................................................................................................ 126, 131, 132
Nat’l Collegiate Athletic Ass’n. v. Tarkanian,
488 U.S. 179, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988) .................................................... 115
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National Organization for Women, Inc. v. Schiedler,
510 U.S. 249 (1994) ............................................................................................................ 140
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................................................................................ 126
Newton v. National Broadcasting Co., Inc.,
930 F.2d 662 (9th Cir. 1990) .............................................................................................. 133
Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986) ............................................................................................................ 133
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Phillips v. Washington Legal Foundation,
524 U.S. 156 (1998) ............................................................................................................ 117
Pinard v. Clatskanie Sch. Dist. 6J,
467 F.3d 755 (9th Cir. 2006) .............................................................................................. 118
Pratt v. Rowland,
65 F.3d 802 (9th Cir. 1995) ................................................................................................ 120
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Rent-A-Ctr., Inc. v. Canyon TV and Appliance Rental, Inc.,
944 F.2d 597 (9th Cir. 1991) .............................................................................................. 145
Resolute Forest Prods. v. Greenpeace Int’l.,
2019 U.S. Dist. LEXIS 10263 (N.D. Cal. 2019) ................................................................ 143
Rice v. Fox Broad Co.,
33 F.3d 1170 (9th Cir. 2003) .............................................................................................. 120
River City Mkts., Inc. v. Fleming Foods W., Inc.,
960 F.2d 1458 (9th Cir. 1992) ............................................................................................ 140
Sambreel Holdings LLC v. Facebook, Inc.,
906 F. Supp. 2d 1070 (S.D. Cal. 2016) ................................................................................. 33
Skinner v. Ry. Labor Executives’ Ass’n,
489 U.S. 602 (1989) ............................................................................................ 109, 110, 116
Skoog v. County of Clackamas,
469 F.3d 1221 (9th Cir. 2006) ............................................................................................ 118
Speiser v. Randall,
357 U.S. 513 (1958) ............................................................................................................ 112
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St. Amant v. Thompson,
390 U.S. 727 (1968) .................................................................................................... 133, 134
Tsao v. Desert Palace, Inc.,
698 F.3d 1128 (9th Cir. 2012) ............................................................................................ 112
United Keetoowah Band of Cherokee Indians in Okla. v. FCC,
933 F.3d 728 (D.C. Cir. 2019) .............................................................................................. 90
United States v. Halbert,
640 F.2d 1000 (9th Cir. 1981) ............................................................................................ 144
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United States v. Reyes,
660 F.3d 454 (9th Cir. 2011) .............................................................................................. 140
United States v. Stockheimer,
157 F.3d 1082 (7th Cir. 1998) ............................................................................................ 143
Villegas v. Gilroy Garlic Festival Ass’n,
541 F.3d 950 (9th Cir. 2008) (en banc) .............................................................................. 112
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7
8
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Vinatieri v. Mosley,
787 F. Supp. 2d 1022 (N.D. Cal. 2011)
aff’d, 532 Fed. Appx. 762 (9th Cir. 2013) .......................................................................... 119
Watison v. Carter,
668 F.3d 1108 (9th Cir. 2012) ............................................................................................ 120
Xcentric Ventures, LLC v. Borodkin,
798 F.3d 1201 (9th Cir. 2015) ............................................................................................ 142
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California Cases
14
Bently Reserve LP v. Papaliolios,
218 Cal. App. 4th 418 (2013) ............................................................................................. 129
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Carney v. Santa Cruz Women Against Rape,
221 Cal. App. 3d 1009 (1990) ............................................................................................ 126
Couch v. San Juan Unified Sch. Dist.,
33 Cal. App. 4th 1491 (1995) ............................................................................................. 131
Ferlauto v. Hamsher,
74 Cal. App. 4th 1294 (1999) ............................................................................................. 128
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Gilbert v. Sykes,
147 Cal. App. 4th 13 (2007) ............................................................................................... 126
Gomes v. Fried,
136 Cal. App. 3d 924 (1982) .............................................................................................. 127
Graybill v. De Young,
140 Cal. 323 (1902) ............................................................................................................ 139
Hecimovich v. Encinal Sch. Parent Teacher Org.,
203 Cal. App. 4th 450 (2012) ............................................................................................. 126
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MacLeod v. Tribune Publishing Co.,
52 Cal. 2d 536 (1959) ......................................................................................................... 130
Ringler Associates, Inc. v. Maryland Casualty Co.,
80 Cal. App. 4th 1165 (2000) ............................................................................................. 131
Rosenberg v. J.C. Penney Co.,
30 Cal. App. 2d 609 (1939) ........................................................................................ 131, 132
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7
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Selleck v. Globe International, Inc.,
166 Cal. App. 3d 1123 (1985) ............................................................................................ 128
Slaughter v. Friedman,
32 Cal.3d 149 (1982) .......................................................................................................... 132
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Vedovi v. Watson & Taylor,
104 Cal. App. 80 (1930)...................................................................................................... 128
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United States Constitution
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14
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First Amendment........................................................................................................ 2, passim
Fourth Amendment ............................................................................................. 109, 110, 111
Fifth Amendment ........................................................................................ 6, 7, 111, 117, 118
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Federal Statutes
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15 U.S.C.
§ 1125(a) ......................................................................................................................... 7, 120
§ 1125(a)(1)(B) ................................................................................................................... 120
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18 U.S.C.
§ 1343 .......................................................................................................................... 139, 141
§ 1951 .................................................................................................................................. 141
§ 1951(2) ............................................................................................................................. 142
§ 1961(1)(B) ................................................................................................................ 139, 142
§ 1961(3) ................................................................................................................................. 8
§ 1961(4) ............................................................................................................................. 140
§ 1962(c) ..................................................................................................................... 139, 142
§ 1964(a) ..................................................................................................................... 6, 7, 111
§ 1964(c) .................................................................................................................... 6, passim
§ 1965(a) ................................................................................................................................. 7
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26 U.S.C.
§ 501(c)(3)............................................................................................................................... 7
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28 U.S.C.
§ 1331 .............................................................................................................................. 6, 112
§ 1332(a) ................................................................................................................................. 6
§ 1391(b) ................................................................................................................................. 7
§ 2201 ...................................................................................................................................... 7
§ 2201(a) ............................................................................................................................. 144
§ 2202 ...................................................................................................................................... 7
42 U.S.C.
§ 280e-11(a) .......................................................................................................................... 16
§ 280e-11(b) .......................................................................................................................... 16
§ 280e-11(h)(1) ..................................................................................................................... 16
§ 280e-11(h)(2)(A) ................................................................................................................ 16
§ 300aa-1 through 300aa-34 ................................................................................................. 84
§ 300aa-11 ............................................................................................................................. 84
§ 300aa-12 ............................................................................................................................. 86
§ 300aa-27 ............................................................................................................................. 86
§ 300aa-27(a) ........................................................................................................................ 85
§ 1983 .................................................................................................................................. 112
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47 U.S.C.
§ 230 ........................................................................................................................... 2, passim
§ 230(c)(1)............................................................................................................... 28, 38, 108
§ 230(c)(2)(A) ............................................................................................................. 109, 111
§ 230(f)(3) ..................................................................................................................... 40, 108
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California Statutes
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California Civil Code
§ 45 ...................................................................................................................................... 126
§ 45a .................................................................................................................................... 127
§ 48a (a) .............................................................................................................................. 139
§ 48a (d)(5)................................................................................................................. 139§ 48a 127
§ 1668 .................................................................................................................................... 16
§ 659641.1 (f) ........................................................................................................................ 95
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Federal Rules of Civil Procedure
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Rule 9(b) ............................................................................................................................. 142
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Electronic and Web Sources
2
2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS AND
BIDS, https://www.govcb.com/government-bids/vaccines-for-childrenNBD00159022703927119.htm (last accessed Aug. 15, 2020) ............................................. 86
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2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS,
https://www.governmentcontracts.us/government-contracts/opportunitydetails/NBD00159991194385117.htm (last accessed Aug. 15, 2020) ................................. 85
About A/B Testing, Business Help Center, FACEBOOK FOR BUSINESS,
https://www.facebook.com/business/help/1738164643098669?id=445653312
788501 (last accessed Aug. 14, 2020) .................................................................................. 77
About Vaccine Safety Net, VACCINE SAFETY NET,
https://www.vaccinesafetynet.org/vsn/vaccine-safety-net (last visited Nov.
12, 2020) ............................................................................................................................... 44
About, 5G APPEAL, http://www.5gappeal.eu/about/ (last visited Aug. 14, 2020) ...................... 96
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About, SCIENCE FEEDBACK, https://sciencefeedback.co/about/ (last visited Nov.
12, 2020) ............................................................................................................................... 44
Adam Burt, Can Facebook Ever Be Fixed?, HARVARD BUSINESS REVIEW (April
8, 2019), https://hbr.org/2019/04/can-facebook-ever-be-fixed........................................... 122
Adult Vaccination Resources, Vaccines for Adults, CDC,
https://www.cdc.gov/vaccines/hcp/adults/for-practice/reminder-sys.html (last
visited Nov. 12, 2020) ........................................................................................................... 22
Agency-Related Nonprofit Research Foundations and Corporations, CRS
Report, CONGRESSIONAL RESEARCH SERVICE (Dec. 9, 2019),
https://fas.org/sgp/crs/misc/R46109.pdf ............................................................................... 17
Alex Pasternack, Facebook is quietly pressuring its independent fact-checkers to
change their rulings, FAST COMPANY (Aug. 20, 2020),
https://www.fastcompany.com/90538655/facebook-is-quietly-pressuring-itsindependent-fact-checkers-to-change-their-rulings (last visited Nov. 12,
2020) ..................................................................................................................................... 39
Alexandra Kelley, Zuckerberg says Facebook won’t remove anti-vaccine posts
amid coronavirus pandemic, THE HILL (Sept. 10, 2020),
https://thehill.com/changing-america/well-being/prevention-cures/515844mark-zuckerberg-says-facebook-wont-remove-anti ........................................................... 138
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Alexi Mostrous, How a Kennedy became a ‘superspreader’ of hoaxes on
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Reviewers, HEALTH FEEDBACK, Community,
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Ronald L. Melnick, Commentary on the utility of the National Toxicology
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10.1016/j.envres.2018.09.010. Epub 2018 Sep 20. PMID: 30243215,
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Rudy Takala, Mark Zuckerberg Says Facebook ‘Balances’ First Amendment
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S. Keach, Facebook’s 5G fake news poses ‘risk of immediate physical harm’,
Zuckerberg warns, IRISH SUN (May 21, 2020),
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Schiff Sends Letter to Google, Facebook Regarding Anti-Vaccine
Misinformation, News/Press Releases, CONGRESSMAN ADAM SCHIFF (Feb.
14, 2019), https://schiff.house.gov/news/press-releases/schiff-sends-letter-togoogle-facebook-regarding-anti-vaccine-misinformation ............................................ 23, 136
Science Feedback partnering with Facebook in fight against misinformation,
SCIENCE FEEDBACK (May 14, 2019), https://sciencefeedback.co/sciencefeedback-partnering-with-facebook-in-fight-against-misinformation/ (last
visited Nov. 12, 2020) ..................................................................................................... 43, 44
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Science Feedback, POYNTER.ORG, IFCN Code of Principles,
https://ifcncodeofprinciples.poynter.org/profile/science-feedback (last visited
Nov. 12, 2020) ...................................................................................................................... 43
Scientists call for Protection from Non-ionizing Electromagnetic Field Exposure,
EMF SCIENTIST, https://www.emfscientist.org/index.php/emf-scientist-appeal
(last visited Aug. 14, 2020) ................................................................................................... 95
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Sheila Kaplan, Firm Pays Government to Challenge Pesticide Research, TYPE
INVESTIGATIONS (Mar. 1, 2011),
https://www.typeinvestigations.org/investigation/2011/03/01/firm-paysgovernment-challenge-pesticide-research/ (last visited Nov. 11, 2020)............................... 17
Sheila Kaplan, New C.D.C. Chief Saw Coca-Cola as Ally in Obesity Fight, THE
NEW YORK TIMES (Jul. 22, 2017),
https://www.nytimes.com/2017/07/22/health/brenda-fitzgerald-cdc-coke.html .................. 18
Social Media at CDC, Guidelines & Best Practices / Facebook Guidelines and
Best Practices, CDC,
https://www.cdc.gov/socialmedia/tools/guidelines/facebook-guidelines.html.
(last visited Nov. 12, 2020) ................................................................................................... 20
24
25
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Social Media at CDC, Tools / Facebook, CDC,
https://www.cdc.gov/socialmedia/tools/facebook.html (last visited Nov. 12,
2020) ..................................................................................................................................... 20
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Social media giants agree package of measures with UK Government to tackle
vaccine disinformation, GOV.UK (Nov. 8, 2020),
https://www.gov.uk/government/news/social-media-giants-agree-package-ofmeasures-with-uk-government-to-tackle-vaccine-disinformation........................................ 22
Stipulated Order Proving CDC Has No Studies To Support Claim That Vaccines
Given in First 6 Months of Life Do Not Cause Autism, ICAN (Mar. 5, 2020),
https://www.icandecide.org/ican_lawsuits/stipulated-order-proving-cdc-hasno-studies-to-support-claim-that-vaccines-given-in-first-6-months-of-life-donot-cause-autism/ .................................................................................................................. 65
Stipulated Order, U.S.D.C. S.D. N.Y. No. 18-cv-03215 (JMF) (filed Jul. 9, 2018)
& Press Release, INFORMED CONSENT ACTION NETWORK (ICAN) (Jul. 13,
2018), https://www.icandecide.org/wp-content/uploads/2019/09/StipulatedOrder-copy-1.pdf................................................................................................................... 86
Students with Disabilities, NATIONAL CENTER FOR EDUCATION STATISTICS (May
2020), https://nces.ed.gov/programs/coe/indicator_cgg.asp ................................................. 87
Sundeep Rangan, Theodore S. Rappaport & Elza Erkip, Millimeter-Wave
Cellular Wireless Networks: Potentials and Challenges, PROCEEDINGS OF
THE IEEE | Vol. 102, No. 3, March 2014,
https://ecfsapi.fcc.gov/file/60001013329.pdf ....................................................................... 90
Susanna N. Visser, MS et al., Trends in the Parent-Report of Health Care
Provider-Diagnosed and Medicated Attention-Deficit/Hyperactivity
Disorder: United States, 2003–2011, JOURNAL OF THE AMERICAN ACADEMY
OF CHILD & ADOLESCENT PSYCHIATRY, Volume 53 Number 1 (January
2014), https://jaacap.org/article/S0890-8567(13)00594-7/fulltext ....................................... 87
T. Staton, The top 10 pharma companies in social media, FIERCEPHARMA,
https://www.fiercepharma.com/special-report/top-10-pharma-companiessocial-media-0 (last accessed Aug. 14, 2020) ....................................................................... 46
The 5G Crisis: Awareness & Accountability,” CHILDREN’S HEALTH DEFENSE
(Dec. 21, 2019), https://childrenshealthdefense.org/video/the-5g-crisisawareness-accountability/ ..................................................................................................... 14
The Chan Zuckerberg Biohub: Seeking to Cure All Diseases, BIOLEGEND BLOG,
https://www.biolegend.com/ja-jp/blog/the-chan-zuckerberg-biohub-seekingto-cure-all-diseases (last accessed Aug. 15, 2020) ............................................................. 105
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2
The code and the platforms, POYNTER.ORG,
https://ifcncodeofprinciples.poynter.org/know-more/the-code-and-theplatforms (last visited Nov. 12, 2020) .................................................................................. 43
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The International Fact-Checking Network, POYNTER.ORG,
https://www.poynter.org/ifcn/ (last visited Nov. 12, 2020) .................................................. 42
The Internet of Things will thrive on 5G technology, VERIZON (Jun. 12, 2018),
https://www.verizon.com/about/our-company/5g/internet-things-will-thrive5g-technology...................................................................................................................... 107
The Signatories, 5G APPEAL, http://www.5gappeal.eu/signatories-to-scientists5g-appeal/ .............................................................................................................................. 95
Tiffany Hsu & Cecilia Kang, “Morally Impossible”: Some Advertisers Take a
Timeout From Facebook, NEW YORK TIMES (Jun. 9, 2020),
https://www.nytimes.com/2020/06/09/business/media/facebook-advertiserstrump-zuckerberg.html?searchResultPosition=2 ................................................................ 101
Tom Jefferson, Influenza vaccination: policy versus evidence, BMJ, v.333, p. 912
(Oct. 28, 2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1626345/ ....................... 67
Tom Taulli, Facebook AI (Artificial Intelligence): Will M&A Help?, FORBES
(Feb. 15, 2020),
https://www.forbes.com/sites/tomtaulli/2020/02/15/facebook-ai-artificialintelligence-will-ma-help/#104eed427664 ......................................................................... 107
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/nphParser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/searchbool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024 ................... 74
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Up-to-date, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/up-to-date (last accessed Aug. 15, 2020) ..................................... 129
Up-to-date, Merriam-Webster.com, Thesaurus, https://www.merriamwebster.com/thesaurus/up-to-date (last accessed Aug. 15, 2020) ...................................... 129
Vaccinate with Confidence, CDC (Oct. 11, 2019),
https://www.cdc.gov/vaccines/partners/downloads/Vaccinate-Confidently2019.pdf ................................................................................................................................ 20
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2
Vaccine development, WEHI (The Walter and Eliza Hall Institute of Medical
Research), https://www.wehi.edu.au/research/research-technologies/vaccinedevelopment (last visited Nov. 12, 2020) ............................................................................. 42
3
4
5
6
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8
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Vaccine Injury Compensation Program: Addressing Needs and Improving
Practices, Sixth Report by the Committee on Government Reform, Union
Calendar No. 575, 106th Congress, 2d Session, House Report 106–977,
HOUSE COMMITTEE ON GOVERNMENT REFORM HEARINGS (Oct. 12, 2000),
https:///www.congress.gov/106/crpt/hrpt977/CRPT-106hrpt977.pdf .................................. 86
Vaccine Misinformation: Statement by WHO Director-General on Facebook and
Instagram, WORLD HEALTH ORGANIZATION (Sept. 4, 2019),
https://www.who.int/news-room/detail/04-09-2019-vaccine-misinformationstatement-by-who-director-general-on-facebook-and-instagram ........................... 30, 36, 114
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12
13
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Vaccines Market - Global Forecast to 2024, MARKETSANDMARKETS (January
2020), https://www.marketsandmarkets.com/Market-Reports/vaccinetechnologies-market-1155.html ............................................................................................ 88
Vaccines Market Size, Share & Industry Analysis, 2020-2027, FORTUNE
BUSINESS INSIGHTS, https://www.fortunebusinessinsights.com/industryreports/vaccines-market-101769 (last accessed Aug. 14, 2020)........................................... 88
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Vann. R. Newkirk II, Is the CDC Losing Control?, THE ATLANTIC (Feb. 3,
2018), https://www.theatlantic.com/politics/archive/ 2018/02/cdc-scandalpreparedness-budget/552200/ ............................................................................................... 89
VSN Members, VACCINE SAFETY NET,
https://www.vaccinesafetynet.org/vsn/network (last visited Nov. 12, 2020) ....................... 44
21
Who pays for PolitiFact?, POLITIFACT (last updated June 2020),
https://www.politifact.com/who-pays-for-politifact/ ............................................................ 10
22
WIKIPEDIA, https://en.wikipedia.org/wiki/5G (last visited Aug. 14, 2020) ............................... 91
23
Miscellaneous Authorities
24
25
26
2 J. Story, Commentaries on the Constitution of the United States,
§ 1882 (5th ed. 1891) .............................................................................................................. 2
27
50 Am. Jur. 2d,
§ 455 .................................................................................................................................... 134
28
Bill of Rights ................................................................................................................................ 2
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Black’s Law Dictionary 1421 (5th ed. 1979) ........................................................................... 125
2
Constitution of World Health Organization,
Article 71....................................................................................................................... 30, 113
3
4
5
6
7
Edwin Black, Wikipedia—The Dumbing Down of World Knowledge, HISTORY
NEWS NETWORK (April 19, 2010) ........................................................................................ 47
Executive Order on Preventing Online Censorship,
§ 2 (a) .................................................................................................................................. 111
8
F. Siebert, Freedom of the Press in England 1476-1776 (1965) ................................................. 2
9
Facebook’s “Preventive Health” App ........................................................................................ 21
10
Facebook’s Terms of Service
¶ 1 .................................................................................................................................... 15, 16
¶ 3(1) ..................................................................................................................................... 15
¶ 3.2 ....................................................................................................................... 16, 118, 119
¶ 3(2)(1)................................................................................................................................. 15
¶ 3(2)(3)................................................................................................................................. 16
¶ 4(3) ............................................................................................................................... 15, 16
¶ 4(4) ....................................................................................................................................... 7
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12
13
14
15
16
17
Institute of Medicine, Adverse Events Associated with Childhood Vaccines:
Evidence Bearing on Causality, at 2 (1994) ......................................................................... 84
18
L. Levy, Emergence of a Free Press 6 (1985) ............................................................................. 2
19
Nason Maani Hessari, Gary Ruskin, and Martin McKee, et al., Public Meets
Private: Conversations Between Coca-Cola and the CDC, THE MILBANK
QUARTERLY, vol. 97, no. 1, pp. 74-90 (2019) ...................................................................... 18
20
21
22
Oliver Kamm, Wisdom? More like dumbness of the crowds, THE TIMES (August
16, 2007) ............................................................................................................................... 47
23
24
RESTATEMENT (2D) OF TORTS
§ 563(d) ............................................................................................................................... 127
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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone: (415) 948-0045
E-Mail Address: rteich@juno.com
ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE
11
UNITED STATES DISTRICT COURT
12
NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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15
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CHILDREN’S HEALTH DEFENSE,
a Georgia non-profit organization,
Case No. 3:20-cv-05787-SI
17
Plaintiff,
18
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20
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22
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24
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VERIFIED FIRST AMENDED
COMPLAINT
v.
FACEBOOK, INC., a Delaware corporation;
MARK ZUCKERBERG, a California resident;
SCIENCE FEEDBACK, a French corporation;
THE POYNTER INSTITUTE FOR MEDIA
STUDIES, INC., a Florida corporation; and
DOES 1-20,
1) FIRST AND FIFTH AMENDMENTS
(BIVENS);
2) LANHAM ACT (15 U.S.C. § 1125(a));
3) RICO FRAUD (18 U.S.C. § 1962);
4) DECLARATORY RELIEF.
JURY TRIAL DEMAND
Defendants.
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27
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Plaintiff Children’s Health Defense, by and through its undersigned attorneys, sues
2
defendants Facebook, Inc., Mark Zuckerberg, Science Feedback, the Poynter Institute for
3
Media Studies, Inc., and Does 1-20, and for its Verified First Amended Complaint alleges on
4
personal information as to itself and on information and belief as to all other things:
5
6
7
INTRODUCTION
1.
This is a case about how an officer and an agency within the U.S. Government
8
“privatized” the First Amendment by teaming up with Facebook to censor speech which, under
9
the Bill of Rights, the Government cannot censor. In February 2019, Democratic Congressman
10
Adam Schiff (D-CA) threatened to introduce legislation to remove Facebook’s immunity under
11
Section 230 of the Communications Decency Act unless Facebook implemented algorithms to
12
“distinguish” and suppress so-called “vaccine misinformation” and advertising. The Centers
13
for Disease Control and Prevention (“CDC”) and, under its aegis, the World Health
14
Organization (“WHO”) collaborated closely with Facebook to suppress vaccine safety speech
15
by using a “warning label” and other similar types of notices which, while purporting to flag
16
misinformation, in reality censor valid and truthful speech, including content posted by
17
Plaintiff on its Facebook page regarding vaccines. A judicial remedy is urgently required to
18
redress the damage to Plaintiff Children’s Health Defense (“CHD”) and the abridgement of its
19
fundamental rights caused by Facebook and its Chairman Mark Zuckerberg’s aggressive and
20
illegal efforts, embarked upon in response to state pressure and in conjunction with state actors,
21
to censor and suppress CHD’s posting of material critical of those very state actors and voicing
22
alternative views concerning the safety and efficacy of vaccines.
23
2.
In 17th-century England, government controlled speech through its monopoly on
24
printing presses. See L. Levy, Emergence of a Free Press 6 (1985). The first newspapers were
25
also met by licensing prosecutions of unlicensed news-sheet printers and the power of the
26
crown to grant privileges of monopoly. See F. Siebert, Freedom of the Press in England 1476-
27
1776 (1965); see also 2 J. Story, Commentaries on the Constitution of the United States,
28
§ 1882 (5th ed. 1891). Indeed, “history discloses a persistent effort on the part of the British
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government to prevent or abridge the free expression of any opinion which seemed to criticize
2
or exhibit in an unfavorable light, however truly, the agencies and operations of the
3
government.” Grosjean v. American Press Co., 297 U.S. 233, 245 (1936).
4
3.
Here, government actors actively partnered with one of today’s leading social
5
media companies, Facebook — an organization whose reach and power vastly exceeds that of
6
any “printing press” past or present — to censor Plaintiff’s speech concerning important public
7
health issues and government policy. The framers were familiar with the English struggle and
8
enacted the First Amendment to establish and preserve the right of the People to full
9
information about the doings or misdoings of their government. Grosjean, 297 U.S. at 247-49.
10
This case mirrors the framers’ concerns. The censorship of protected speech is not rendered
11
legal because the government has used and acted in conjunction with Facebook and
12
Zuckerberg to effect that censorship. On the contrary, the government cannot accomplish
13
indirectly what the Constitution forbids it to do directly.
14
4.
This is also a case involving claims of corporate fraud against Facebook and
15
Zuckerberg for, inter alia, their smear campaign against Plaintiff consisting of false and
16
misleading content that Facebook itself created and developed (through surrogate “fact-
17
checkers”) and affixed directly to Plaintiff’s Facebook page — all for the purpose of
18
stigmatizing CHD and its content regarding vaccines, and discouraging users from accessing
19
this content. Defendants engaged in multiple acts of fraud and deception in furtherance of their
20
aggressive and heavy-handed campaign of censorship against Plaintiff’s Facebook page. While
21
Facebook and Zuckerberg proudly present themselves in public as avatars of free speech and
22
open debate as the best method for approaching scientific truth, this case reveals the opposite:
23
that they are indeed censors and opponents of real science and open debate who believe that
24
they alone are in possession of “truth” and have the right to suppress anyone who disagrees.
25
5.
In order to determine this case it is not necessary for the Court to act, and the
26
Court is not being asked to act, as the ultimate arbiter of scientific truth in the areas of vaccine
27
safety and 5G technology. Facebook and Zuckerberg have arrogated that power to themselves,
28
which is precisely what has given rise to their illegal conduct and the causes of action here. It
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is the essence of the scientific method that conclusions drawn from research and empirical
2
investigation are tentative and subject to revision.1 It is Zuckerberg and Facebook that have
3
weaponized the concept of scientific “fact” in an effort to shut down the differing conclusions
4
and viewpoint that CHD attempts to voice, and which visitors to CHD’s Facebook website
5
have a right, and should be permitted, to hear and evaluate for themselves. In sum, it is
6
Facebook’s dogmatic conclusion (imprinted directly on CHD’s Facebook page) that the
7
vaccine and 5G issues are susceptible of being labelled definitively “true” or definitively
8
“false” (by Facebook) that is itself false and misleading. In essence, CHD looks to the Court
9
not to function as the ultimate arbiter of scientific “truth” or “fact,” but to redress Facebook
10
and Zuckerberg’s illegal efforts to foreclose and censor what should be open scientific debate,
11
and to malign and destroy CHD (their ultimate goal) in that effort.
12
6.
CHD and its founder Robert F. Kennedy, Jr. (“RFK, Jr.”) have built CHD’s good
13
name and reputation as a public health advocate for complete candor as to the risks of
14
environmental toxins, vaccines, 5G and wireless networks, and the conflicts of interest that
15
have compromised government oversight of those products and services. Plaintiff’s online
16
reputation is essential to its standing as a preeminent leader in the health reform movement.
17
CHD seeks $5 million or more in treble and punitive damages against the Facebook defendants
18
for their deliberate engagement in a campaign based on false and misleading advertising and
19
direct censorship in order to damage Plaintiff’s reputation and organization.
20
7.
Facebook promotes itself as a social media website with 214 million users in the
21
United States and 2.2 billion worldwide. Facebook is not cost-free. Its users incur the cost of
22
having their information mined and shared. Bass v. Facebook, Inc., 394 F. Supp. 3d 1024,
23
24
25
26
27
28
1
The history of science and medicine are replete with examples, from Galileo to
Semmelweis, of theories which were vilified and censored in their exponent's lifetimes, only to
find widespread acceptance after their deaths. Such reevaluations and reappraisals are not
uncommon. What is in one period treated as false, even heretical science, may eventually at a
later time gain acceptance as scientific orthodoxy - perhaps, in turn, only to be modified or
superseded by further discoveries and new ideas. The view that vaccines are not safe for all
people at all times, despite official orthodoxy, is not too dangerous to air and be heard.
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1037 (N.D. Cal. 2019). Facebook is sustained by, and its profits are largely due to, massive
2
advertising — i.e., by selling the value of its users’ attention to other companies that wish to
3
persuade those users to buy the advertisers’ goods and services. Less well-known, and directly
4
relevant to this action, are Facebook’s specific efforts as a seller of pharmaceutical ads,
5
purveyor of global 5G and wireless networks and services, and developer of vaccines through
6
Zuckerberg’s separate entities. Facebook promotes itself as a service for people “to talk openly
7
about the issues that matter to them, even if some may disagree or find them objectionable.”
8
Community Standards, FACEBOOK, https://www.facebook.com/communitystandards/ (last
9
visited Nov. 12, 2020). It does not say that it will censor and falsely disparage opposing
10
viewpoints or content that points out the health risks of those products and technologies
11
through material misrepresentation and blatant falsehood. Here, defendants’ deliberate
12
falsehood is that Plaintiff’s page contains “false information” that poses a “risk of imminent
13
violence or physical harm.” Nothing could be further from the truth.
14
8.
This case arises in a pandemic when the need for public debate on health issues
15
has never been greater. CHD’s vision is a world free of childhood chronic health conditions
16
caused by environmental exposures. Plaintiff highlights harms associated with the current
17
vaccine program, pesticides, and deployment of 5G and other wireless technologies. Although
18
Zuckerberg’s professed “moon shot mission” is “to cure all disease on the planet within the
19
Facebook chairman’s children’s lifetimes,” defendants’ first giant leap for humankind is to
20
censor CHD’s viewpoint, which competes with Facebook’s business plan for pharmaceutical
21
ad revenue, vaccine development, and 5G and wireless networks.
22
9.
Since September 2019, Facebook’s and Zuckerberg’s aggressive censorship
23
campaign — initiated in response to government pressure and executed in conjunction with
24
government actors — has falsely denigrated CHD through a “warning label” on CHD’s page,
25
which conveys a classic false imputation of dishonesty in CHD’s trade. Since March 2019,
26
with increasing frequency, Facebook and its surrogate self-styled “independent fact-checkers”
27
(Facebook and Zuckerberg’s Orwellian term for those it has retained, paid for, donated funds
28
to, trained and directed) have created, developed, and published “false information” tags
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directly on CHD’s page, which materially misrepresent the accuracy of CHD’s own content.
2
These techniques of censorship culminated in even more aggressive and blatant acts of
3
suppression by Facebook and Zuckerberg: the deactivation of CHD’s funding button on its
4
Facebook page, making it impossible for viewers to donate to CHD; the demotion of CHD’s
5
content on vaccines and 5G technology; and ultimately Facebook and Zuckerberg’s actual
6
removal of CHD’s previously “fact-checked” content — an action taken only after this lawsuit
7
was filed, and in apparent retaliation against CHD for having the temerity to resist Facebook’s
8
censorship by filing the lawsuit.
9
10.
CHD seeks a potent remedy as antitoxin to Facebook’s toxic propagation of the
10
“known lie [which is] at once at odds with the premises of democratic government and with the
11
orderly manner in which economic, social, or political change is to be effected.” Garrison v.
12
Louisiana, 379 U.S. 64, 75 (1964) (“calculated falsehood [is] no essential part of any
13
exposition of ideas”); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
14
dissenting) (“The ultimate good desired is better reached by free trade in ideas -- … the best
15
test of truth is the power of the thought to get itself accepted in the competition of the
16
market”). As explained below, defendants’ conduct violates the First and Fifth Amendments,
17
constitutes false advertising under the Lanham Act, and is in violation of the RICO statute. Nor
18
are Zuckerberg or Facebook’s actions shielded or rendered permissible by Section 230 of the
19
Communications Decency Act. Zuckerberg and Facebook possess enormous power. In their
20
deliberate, self-interested and self-serving censorship campaign directed at CHD, their abuse of
21
that power has been egregious. The legal redress sought herein is fully warranted.
22
23
24
JURISDICTION AND VENUE
11.
This Court has personal jurisdiction over all defendants because they conducted
25
business with and injured Plaintiff in this District. Facebook itself is headquartered within the
26
District, which is also where the individual and at least some of the Doe defendants reside.
27
28
12.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal
question), 28 U.S.C. § 1332(a) (complete diversity of the parties, and the amount in
6
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 34 of 175
1
controversy exceeds $75,000), 28 U.S.C. § 2201 (declaratory relief), and 28 U.S.C. § 2202
2
(further relief). The action asserts continuing violations of the First and Fifth Amendments, 18
3
U.S.C. §§ 1964(a), (c) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),
4
and 15 U.S.C. § 1125(a) (Lanham Act), and there is an actual case or controversy.
5
13.
Venue is proper under 18 U.S.C. § 1965(a) and 28 U.S.C. § 1391(b) because
6
defendants transacted a substantial portion of their affairs and caused damages in this District.
7
Moreover, Facebook’s Terms of Service (“Terms”) to which Plaintiff agreed require that
8
disputes be resolved in this forum and that the laws of the State of California apply. Terms at
9
¶ 4(4).
10
PARTIES AND RELATED ENTITIES
11
14.
Plaintiff Children’s Health Defense is a not-for-profit 26 U.S.C. § 501(c)(3)
12
membership organization incorporated under the laws of the State of Georgia, and
13
headquartered at 1227 North Peachtree Parkway, Suite 202, Peachtree City, Georgia 30269.
14
CHD was founded in 2015 (under a different name) to educate the public about the risks and
15
harmful effects of chemical exposures upon prenatal and children’s health, including from
16
particular vaccines and environmental health hazards, such as 5G and wireless networks and
17
products, and to advocate for social change both legislatively and through judicial action. The
18
organization is run by RFK, Jr. and a team comprised largely of mothers whose children
19
suffered serious adverse events after vaccination.
20
15.
As a publisher of information related to public health and reform, CHD operates
21
the https://childrenshealthdefense.org website, and publishes, inter alia, a “weekly wrap up”
22
with research articles and opinion pieces available at https://childrenshealthdefense.org/
23
category/news/childrens-health/. As set forth more fully infra, CHD and its founder and
24
chairman Robert F. Kennedy, Jr. are not “anti-vaccine2.” Rather, they advocate for informed
25
26
CHD and Robert F Kennedy Jr. are frequently smeared with the term “anti-vax,” in an
effort to marginalize them as proponents of “fringe-speech.” In truth, they advocate for
transparency and tighter safety standards, particularly given the influence of pharmaceutical
2
27
28
7
VERIFIED FIRST AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 35 of 175
1
patient consent based on full disclosure of all relevant medical information. CHD receives all
2
of its support from contributions, membership fees, and gross receipts from activities related to
3
its tax-exempt functions. In Tax Year 2018, CHD reported $1,063,837 in gifts, grants,
4
contributions, and membership fees received. CHD’s primary sources of revenue derive from
5
membership dues and donations that CHD solicits on its website and, formerly, on its
6
Facebook page. In addition to that monetary interest, attracting visitors to the CHD website and
7
its Facebook page enables CHD and RFK, Jr., CHD’s contributors, and its readers to associate
8
and engage in speech on matters of mutual concern. CHD has standing to bring suit as an
9
injured “person” under 18 U.S.C. § 1964(c).
10
16.
Defendant Facebook, Inc. is a Delaware corporation, with its principal place of
11
business in Menlo Park, California. (At times herein, where Facebook acted on behalf of all
12
defendants, they are collectively referred to as “Facebook.”) Sometime in or around 2017,
13
CHD executed Facebook’s Terms in order to establish and maintain CHD’s Facebook page as
14
a central clearinghouse for CHD’s public health newsgathering and advocacy activities, and as
15
a fundraising platform.
16
17.
Defendant Mark Zuckerberg is a co-founder of Facebook, Inc., and at all times
17
relevant hereto, has served as Facebook’s chairman, chief executive officer, and controlling
18
shareholder. He also co-owns and is co-managing member of the Chan-Zuckerberg Institute,
19
LLC (“CZI”) and Chan-Zuckerberg Biohub, LLC (“CZB”), which are, inter alia, for-profit
20
vaccine developers. He resides in the Northern District of California and is a “person” who
21
may be sued under 18 U.S.C. § 1961(3). He is sued individually, and under theories of
22
respondeat superior, alter ego, and agency liability.)
23
24
25
18.
According to Facebook’s 2017 Proxy Statement:
Because Mr. Zuckerberg controls a majority of our outstanding
voting power, we are a “controlled company” under the corporate
governance rules of the NASDAQ Stock Market LLC (NASDAQ).
26
27
28
companies with large financial interests, statutory immunity from tort liability for vaccineinjury, and a record of producing self-interested “research” studies on vaccine safety issues.
8
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 36 of 175
1
Therefore, we are not required to have a majority of our board of
directors be independent, nor are we required to have a
compensation committee or an independent nominating function.
In light of our status as a controlled company, our board of
directors has determined not to have an independent nominating
function and to have the full board of directors be directly
responsible for nominating members of our board.
2
3
4
5
6
19.
According to its 2018 Proxy Statement, defendant Zuckerberg has the sole power
7
to elect or remove any director from Facebook’s Board, as he controls a majority (53.3%) of
8
Facebook’s total voting shares. Zuckerberg directs and controls Facebook’s business and is
9
personally and directly responsible for the damages caused by his individual actions, and by
10
his controlled entities’ misconduct as set forth herein. Facebook and its surrogate “fact-
11
checker” entities are also sued under principles of alter ego and respondeat superior liability.
12
20.
Defendant Science Feedback is a French non-profit organization to which
13
Facebook contributes an undisclosed amount over 5% of its resources, and which Facebook
14
has engaged as one of its “fact-checker” agents to help Facebook mislead Facebook’s users and
15
divert them from CHD’s page through a fraudulent scheme by which 1) Facebook flags
16
selected truthful and interpretive content on CHD’s Facebook page as “false information,”
17
2) trains, finances, and directs fact-checkers to draft CDC/WHO-based oppositional articles,
18
and 3) Facebook posts its agent’s content with a grey overlay (like graffiti) over CHD’s
19
content on CHD’s page.
20
21.
Defendant The Poynter Institute for Media Studies, Inc. (“Poynter”) is a Florida
21
non-profit organization to which Facebook donates both to the parent corporation (Poynter),
22
and more than 5% of its “fact-checker” branded website’s (“Politifact”) revenue.3 Facebook
23
has contracted with Poynter/Politifact as an additional “fact-checker” surrogate under the same
24
working collaboration described supra: Facebook identifies selected content on CHD’s
25
Facebook page as “false information”; instructs and delegates to Poynter to draft oppositional
26
27
28
3
On or about January 24, 2018, Poynter filed an application for registration of the
fictitious name “Politifact” in the State of Florida.
9
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 37 of 175
1
articles referencing CDC/WHO publications as “authoritative,” and Facebook maintains
2
editorial control over those oppositional articles which it inserts on CHD’s page under a “False
3
Information” tag, in order to divert users from CHD’s own content on that false basis.
4
Facebook is a major donor to both Poynter and Politifact. Largest funders of Poynter, POYNTER
5
(last updated June 2020), https://www.poynter.org/major-funders/; Who pays for PolitiFact?,
6
POLITIFACT (last updated June 2020), https://www.politifact.com/who-pays-for-politifact/.
7
22.
The Facebook corporate and individual defendants conspired with one another,
8
and others as yet unknown at Facebook, or elsewhere (the “Doe defendants”) in an informal
9
enterprise (the “content management enterprise”) to accomplish their common purposes. Each
10
of them was acting within the course and scope of that conspiracy, agency, partnership, or joint
11
venture. The acts and conduct of each of the defendants were known to and authorized by, or
12
ratified by, the other defendants.
13
23.
The informal enterprise operated by defendants had an ascertainable structure
14
separate and apart from the pattern of racketeering activity in which the defendants engage,
15
and from Facebook, Science Feedback, or Poynter, which are joined as corporate defendants.
16
The informal enterprise operated within one or both of those related structures as an
17
“enterprise” with a common purpose, structure or organization, and open-ended lifespan
18
necessary to accomplish their joint purposes to defraud CHD, destroy its reputation and
19
fundraising, and blunt the impact of its public health education and advocacy efforts.
20
21
STATEMENT OF MATERIAL FACTS
22
A.
CHD’s Interest in Vaccine and 5G and Wireless Network Safety.
23
24.
Robert F. Kennedy, Jr. is the founder and Chairman of the Board of CHD. For
24
over three decades, RFK, Jr. has been one of the world’s leading environmental advocates. He
25
is the founder and past president of Waterkeeper Alliance, the umbrella group for 300 local
26
waterkeeper organizations, in 34 countries, that track down and sue polluters. Under his
27
leadership, Waterkeeper has grown to become the world’s largest clean water advocacy
28
organization. RFK, Jr. founded CHD, in part, to address a void in scientific studies of, and
10
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 38 of 175
1
reform advocacy about, the environmental causes of pediatric neuro-developmental disorders
2
and food allergies.
3
25.
Since its founding, CHD has become a leading independent child health
4
protection and advocacy group. CHD fulfills a vital mission to provide the public with timely
5
and accurate vaccine and 5G and wireless technology safety information, particularly in the
6
absence of any appreciable ongoing HHS or CDC research, any congressional oversight to
7
“reduce the risks of adverse reactions to vaccines,” or any reliable pharmaceutical industry
8
research, or private tort remedy. See infra. CHD’s reputation depends on the credibility of its
9
science-based research articles, which explore both the known and presently-unknown public
10
health risks of vaccines and 5G and wireless technology, in the quest for objective truth.
11
26.
CHD’s mission is threefold: to end childhood epidemics by eliminating harmful
12
toxic exposures; to hold those accountable who knowingly allow children to be unnecessarily
13
exposed to dangerous toxins that destroy their health; and to establish greatly-needed
14
safeguards to prevent the devastation to children and families that these chronic illnesses cause.
15
CHD advocates for open and honest public debate on the efficacy and safety of the CDC’s
16
entire Child and Adolescent Immunization Schedule. CHD helps the public navigate the
17
“clutter” of the internet age by posting reliable and up-to-date content for its web traffic
18
viewers. Specifically, CHD publishes articles on its website on a weekly (or more frequent)
19
basis, which describe current scientific research on the potential health risks posed by various
20
environmental toxins, new technologies, and vaccines.
21
27.
CHD’s science-review articles contain hyperlinks to the referenced peer-
22
reviewed, published journals. See generally Research Resources and Critiques, CHILDREN’S
23
HEALTH DEFENSE, https://childrenshealthdefense.org/advocacy-policy/critiques/ (last visited
24
Aug. 14, 2020). CHD prominently labels opinion pieces as editorials. CHD’s website also
25
contains a drop-down menu under the tag “Research” with links to its “Science Library.”
26
CHD’s “Science Library” features a searchable database with hundreds of peer-reviewed,
27
published articles on environmental contaminants, inter alia, of commercial vaccines, some of
28
which have been implicated in the rise of chronic illnesses and developmental disorders among
11
VERIFIED FIRST AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 39 of 175
1
2
at-risk children. All abstracts are tagged with keyword links to cross-reference topics.
28.
CHD’s website also prominently features an “Advocacy/Policy” section down its
3
right-hand column with hyperlinks to seven headers, the first and most prominent of which
4
reads “CDC – Corruption, Deceit, and Cover-Up.” That header contains the following
5
preamble:
6
With the global vaccine market now at tens of billions of dollars,
vaccine safety should be of utmost concern to the Centers for
Disease Control (CDC). But instead, rather than testing and
monitoring the health effects of vaccines and patient injuries
truthfully to the American public and making critical and necessary
corrections in the program, the CDC has become a mouthpiece for
industry and has protected the ‘all vaccines for all children’ policy
despite peer-reviewed science to the contrary.
7
8
9
10
11
12
According to a UPI Investigative article written in the early 2000s,
the CDC owned at least 28 vaccine patents. They are also in charge
of vaccine promotion (getting the public to take vaccines) and
vaccine safety. The CDC, like other large bureaucratic agencies,
also has a revolving door to industry that comes with inherent
conflicts of interests. Common sense should have told us that this
system was doomed to fail.
13
14
15
16
17
The documents below, some of which were obtained by the
Freedom of Information Act (FOIA) show a pattern of deceit
perpetrated by the CDC on the American public and world stage
for over 25 years. The Children’s Health Defense believes that
vaccine safety should be taken from the CDC.
18
19
20
21
29.
CHD’s website also contains hyperlinks to numerous articles that criticize the
22
CDC and challenge its veracity, with illustrative titles such as: CDC’s Vaccine ‘Science’ — A
23
Decades-Long Trail of Trickery; Why You Can’t Trust the CDC on Vaccines; CDC and WHO
24
Corrupt Financial Entanglements with the Vaccine Industry; Dr. Brian Hooker’s Official
25
Statement Regarding Vaccine Whistleblower William Thompson; CDC & FDA Committee
26
Members Have Financial Conflict of Interest with Vaccine Pharmaceuticals; OSC Calls for
27
Further Review of Whistleblower Disclosures on Zika Testing; CDC Spider Letter; CDC: Off
28
Center; Real-Life Data Show that the CDC Vaccine Schedule is Causing Harm; Don’t Fall for
12
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the CDC’s Outlandish Lies About Thimerosal; CDC and WHO Corrupt Financial
2
Entanglements with the Vaccine Industry; CDC Lies About, and Media Repeats, Risk of Dying
3
from Measles; CDC’s ‘Universal’ Recommendations for Infant Hep B Vaccine Not Based on
4
Science, But Assumptions; CDC’s Infant Hep B Vaccine Recommendations—No Proof of
5
Safety?” See, e.g., CDC and WHO Corrupt Financial Entanglements with the Vaccine
6
Industry [and other articles], CHILDREN’S HEALTH DEFENSE,
7
https://childrenshealthdefense.org/cdc-who/ (last visited Aug. 14, 2020).
8
30.
Before publishing its science review articles in its Kennedy News & Views
9
electronic weekly newsletter (recently changed to The Defender), CHD conducts an internal
10
editorial process genuinely to fact-check the text and confirm the cited sources, to ensure that
11
every article cites sources for every fact it asserts. Otherwise, CHD publishes the article as a
12
clearly-labeled editorial or opinion piece, where the opinions expressed are not necessarily the
13
opinions of CHD. Once approved, the article is slotted into the publishing schedule, with
14
layout on the CHD website, image design, and publication on the website in designated
15
categories (e.g., child health, toxins), and layout in the newsletter template for emailing
16
subscribers. CHD checks the accuracy of the article again before emailing it to CHD
17
subscribers, then alerts its affiliated organizations that the article has published, and finally,
18
CHD posts the article on its Facebook page, Twitter, Instagram, and YouTube (when
19
applicable).
20
31.
The CHD website offers for sale through its online store, inter alia, copies of
21
James Ottar Grundvig’s book, Master Manipulator: The Explosive True Story of Fraud,
22
Embezzlement, and Government Betrayal at the CDC, which is described on CHD’s website as
23
“a true story of fraud and betrayal, and an insider’s view of what takes place behind the closed
24
doors of agencies and drug companies, and with the people tasked to protect the health of
25
American children. It’s a cautionary tale of the dangers of blind trust in the government and the
26
health-care industry.” James Ottar Grundvig, Master Manipulator: The Explosive True Story of
27
Fraud, Embezzlement, and Government Betrayal at the CDC, Store, CHILDREN’S HEALTH
28
DEFENSE, https://childrenshealthdefense.org/store/master-manipulator-the-explosive-true-
13
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 41 of 175
1
2
story-of-fraud-embezzlement-and-government-betrayal-at-the-cdc/ (last visited Aug 14, 2020).
32.
Similarly, CHD’s “5G and Wireless Harms Project” publishes links to articles
3
and videos on CHD’s website, which describe the health risks of 5G and wireless networks and
4
products, and CHD’s advocacy efforts to secure a moratorium on 5G development pending
5
further scientific research and consensus on that issue. See, e.g., The 5G Crisis: Awareness &
6
Accountability; Thermal and non-thermal health effects of low intensity non-ionizing
7
radiation: An international perspective; Resistance to 5G: Roadblock to a High Tech Future or
8
Warning of a Serious Health Risk?; What You Should Know About 5G Satellites: How Musk’
9
Sci-Fi Dreams Are Becoming Our Living Nightmare; 5G AirGig: What is It and Should You Be
10
Worried?; 5G/Electromagnetic Fields / Wireless Technologies; Scientists warn of potential
11
serious health effects of 5G; Six Italian Courts Have Ruled that Cell Phones Cause Brain
12
Tumors; The 5G Crisis: Awareness & Accountability, CHILDREN’S HEALTH DEFENSE (Dec. 21,
13
2019), https://childrenshealthdefense.org/video/the-5g-crisis-awareness-accountability/. CHD
14
uses a review process comparable to that described supra to fact-check these articles and
15
publish them as peer-reviewed research or labeled opinion, where appropriate. Significantly,
16
CHD also publishes commentary debunking vaccine and 5G-hypotheses for which CHD has
17
found no credible scientific evidence. See, e.g., D. Tachover, CHD Statement on 5G and
18
Coronavirus, CHILDREN’S HEALTH DEFENSE (Apr. 10, 2020),
19
https://childrenshealthdefense.org/news/chd-statement-on-5g-and-coronavirus/.
20
B.
CHD’s Facebook Page.
21
33.
On or about November, 2017, CHD agreed to Facebook’s Terms to create, and
22
has since actively maintained, its Facebook page. CHD did so to broaden its internet visibility
23
and reach, make its online library more widely-accessible, and increase its fundraising
24
platform. CHD has a current Facebook community of approximately 122,830 followers. CHD
25
uploads articles or video posts from the CHD website to its Facebook page on a daily (or more
26
frequent) basis, along with other articles or video posts, and hyperlinks to CHD’s archived
27
articles of interest to its community. A follower or visitor to CHD’s Facebook page can readily
28
search the “posts” archive and retrieve all of CHD’s present and past articles concerning, inter
14
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 42 of 175
1
2
alia, the CDC’s conflicts, errors, and omissions.
34.
CHD’s Facebook page is both reliable and up-to-date, as those terms are
3
commonly understood. The articles and information that CHD shares with its followers and
4
the public are science-based and fact-checked before publication on its Facebook page. The
5
facts cited in every article include linked citations to other published works. Articles submitted
6
that do not follow that protocol are not published as CHD articles, but rather as editorials
7
where the opinions expressed are not necessarily the opinions of CHD or The Defender. CHD
8
works with content-writers who are known to CHD to be reliable and trustworthy. CHD’s
9
editorial process for any article is as follows: idea; article request/written; article submitted,
10
edited, citations/sources/links checked; website layout; image assigned for article; publish on
11
website in designated categories (child health, toxins, etc.); article laid out in The Defender
12
newsletter template, then emailed to subscribers. Finally, CHD adds the article to its social
13
media accounts on Facebook, Twitter, Instagram, and YouTube (if applicable), and emails it to
14
affiliated publishers. In short, CHD’s internal fact-checking process ensures that all content
15
that CHD posts to its Facebook page is accurate and well-sourced from credible sources and
16
peer-reviewed studies.
17
35.
As set forth infra, CHD did not use its Facebook page to post any content that
18
breached Facebook’s terms or community standards or was otherwise “unlawful, misleading,
19
discriminatory or fraudulent.” Terms at ¶ 3(2)(1).
20
36.
Under Section 1 of its adhesion contract Terms, Facebook describes its products
21
and services to include, inter alia, “[to] empower you to express yourself and communicate
22
about what matters to you” and one of those ways to “express yourself” is “adding content to
23
your profile.” Of its many reserved rights, Facebook notably does not retain the right to create
24
or add its own content to a user’s page, except for a specified reservation for “ads, offers, and
25
other sponsored content [. . .] which [o]ur partners pay us to show [] to you.” In Section 3(1),
26
Facebook reiterates that the user “own[s] the content that [the user] create[s] and share[s] on
27
Facebook[.] [. . .] and nothing in these Terms takes away the rights that [user] have to [their]
28
own content.” In Section 4(3), Facebook reiterates that “[w]e do not control or direct what
15
VERIFIED FIRST AMENDED COMPLAINT
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1
people and others do or say, and we are not responsible for their actions or conduct (whether
2
online or offline) or any content that they share (including offensive, inappropriate, obscene,
3
unlawful and other objectionable content.”).
4
37.
With respect to “harmful conduct,” Facebook’s Terms permit it to “detect misuse
5
of [its] Products, harmful conduct towards others and situations where [it] may be able to help
6
support or protect [its] community.” Facebook retains limited rights, e.g., “offering help,
7
removing content, blocking access to certain features, disabling an account or contacting law
8
enforcement[.] [and] shar[ing] data with other Facebook companies when [it] detect[s] misuse
9
or harmful conduct[.]” Here, too, Facebook does not reserve or retain the right to create its own
10
content on a user’s page. Terms ¶¶ 1, 3(2)(3).
11
38.
Facebook’s Terms purport to limit Facebook’s liability “to the fullest extent
12
permitted by applicable law.” Terms ¶ 4(3). The “applicable law” is California Civil Code
13
section 1668, which establishes that “[a]ll contracts which have for their object, directly or
14
indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the
15
person or property of another, or violation of law, whether willful or negligent, are against the
16
policy of the law.”
17
39.
On or about August 31, 2020, Facebook purported to amend its Terms ¶ 3.2, to
18
provide that effective October 1, 2020, Facebook "can remove or restrict access to your
19
content, services, or information if we determine that doing so is reasonably necessary to avoid
20
or mitigate adverse legal or regulatory impacts to Facebook."
21
C.
The CDC/Facebook Partnership.
22
40.
In 1992, Congress authorized the establishment of the National Foundation for
23
the Centers for Disease Control and Prevention (“the CDC Foundation”) to support the CDC.
24
The CDC Foundation was created as a nonprofit private corporation, purportedly not itself an
25
expressly-designated agency or instrumentality of the Federal Government. 42 U.S.C. §§ 280e-
26
11(a), (b) (“Public Health Services Act”). The CDC Director may accept and use, on behalf of
27
the Federal Government, any gift or donation, or any voluntary services from the CDC
28
Foundation for the purpose of aiding or facilitating the work of the CDC. 42 U.S.C. §§ 280e-
16
VERIFIED FIRST AMENDED COMPLAINT
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1
11(h)(1), (h)(2)(A). “The CDC Foundation's mission statement is to help CDC ‘do more, faster
2
by forging effective partnerships between CDC and others to fight threats to health and
3
safety.’” H. Rept. 109-510 - Amending the Public Health Service Act with Respect to the
4
National Foundation for the Centers for Disease Control and Prevention, 109th Congress
5
(2005-2006), Committee Reports, CONGRESS.GOV, https://www.congress.gov/congressional-
6
report/109th-congress/house-report/510/1 (last visited Nov. 11, 2020).
7
41.
The CDC Foundation also demands “deference to the CDC’s final judgment on
8
all matters of scientific findings, facts or recommendations” as a “characteristic for
9
collaboration.” Guiding Principles For Partner Collaboration, CDC FOUNDATION (2020),
10
https://www.cdcfoundation.org/guiding-principles-partner-collaboration (last visited Nov. 11,
11
2020).
12
42.
The Congressional Research Service recently observed that “[I]t might be
13
difficult for stakeholders to verify on an ongoing basis that the activities of a quasi-
14
governmental entity, established by statute and vested with the power to carry out some public
15
purpose, are directed to the public good rather than private gain without the routine
16
accountability and transparency provided by this legal framework.” Agency-Related Nonprofit
17
Research Foundations and Corporations, CRS Report, CONGRESSIONAL RESEARCH SERVICE
18
(Dec. 9, 2019), https://fas.org/sgp/crs/misc/R46109.pdf.
19
43.
At least one former CDC researcher has put it more bluntly, describing the quasi-
20
governmental CDC Foundation as a “professional money-laundering facility” (Sheila Kaplan,
21
Firm Pays Government to Challenge Pesticide Research, TYPE INVESTIGATIONS (Mar. 1,
22
2011), https://www.typeinvestigations.org/investigation/2011/03/01/firm-pays-government-
23
challenge-pesticide-research/ (last visited Nov. 11, 2020), and others have alleged that the
24
CDC Foundation turns pharmaceutical industry monies into recommendations favorable to that
25
industry, all with the federal government’s seal of approval. CrossFit Settles Lawsuit with HHS
26
After Agency Releases Emails Showing Continued Efforts to Conceal Donations, CROSSFIT
27
(Nov. 23, 2019), https://www.crossfit.com/battles/crossfit-settles-lawsuit-with-hhs-after-
28
agency-agrees-to-release-redacted-emails (last visited Nov. 11, 2020). Still others have
17
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questioned donations made by the Coca-Cola Company to the CDC Foundation for research
2
and other activities associated with obesity and diet issues. (Sheila Kaplan, New C.D.C. Chief
3
Saw Coca-Cola as Ally in Obesity Fight, THE NEW YORK TIMES (Jul. 22, 2017),
4
https://www.nytimes.com/2017/07/22/health/brenda-fitzgerald-cdc-coke.html; Nason Maani
5
Hessari, Gary Ruskin, and Martin McKee, et al., Public Meets Private: Conversations Between
6
Coca-Cola and the CDC, THE MILBANK QUARTERLY, vol. 97, no. 1, pp. 74-90 (2019).
7
44.
According to May 15, 2015 staff editorial in the British Medical Journal
8
(“BMJ”), “Despite the agency’s disclaimer, the CDC does receive millions of dollars in
9
industry gifts and funding, both directly and indirectly, and several recent CDC actions and
10
recommendations have raised questions about the science it cites, the clinical guidelines it
11
promotes and the money it is taking.” The BMJ further described the CDC’s relationship with
12
private actors, as an example of those private actors’ skill in transforming a regulator into the
13
vehicle for their own “classic stealth marketing in which industry puts their message in the
14
mouths of a trusted third party.” Jeanne Lenzer, Centers for Disease Control and Prevention:
15
protecting the private good? THEBMJ, BMJ 2015;350:h2362 (May 15, 2015),
16
https://www.bmj.com/content/350/bmj.h2362.
17
45.
The BMJ editorial quotes UCLA Professor of Medicine Jerome R. Hoffman:
18
“Most of us were shocked to learn the CDC takes funding from industry… it is outrageous that
19
industry apparently is allowed to punish the CDC if the agency conducts research that has the
20
potential to cut into profits.” Jeanne Lenzer, Centers for Disease Control and Prevention:
21
protecting the private good?, supra, THEBMJ, BMJ 2015;350:h2362,
22
https://www.bmj.com/content/350/bmj.h2362.
23
46.
In 2014, Zuckerberg personally donated $25 million to the CDC Foundation’s
24
Global Disaster Relief Fund through Silicon Valley Community Foundation (“SVCF”), which
25
runs a donor advised fund for CZI. CDC Foundation Receives $25 Million Donation From
26
Mark Zuckerberg And Dr. Priscilla Chan For Ebola Response, CDC FOUNDATION (Oct. 14,
27
2014), https://www.cdcfoundation.org/pr/cdc-foundation-receives-25-million-donation-mark-
28
zuckerberg-and-priscilla-chan-ebola-response (last visited Nov. 12, 2020). In 2020, “in
18
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addition to our other donations,” Zuckerberg announced that Facebook would donate $10
2
million to the CDC Foundation’s Combat Coronavirus Fundraiser, and $10 million to the
3
WHO. The CDC Foundation announced that it would use “the support of Facebook and its
4
people to help fill gaps and mobilize resources to address fast emerging needs posed by the
5
virus.” CDC Foundation Launches Facebook Fundraiser To Benefit Coronavirus Response
6
Efforts, Featuring $10 Million Facebook Match, CDC FOUNDATION (Mar. 24, 2020)
7
https://www.cdcfoundation.org/pr/2020/Facebook-fundraiser-supports-coronavirus-response
8
(last visited Nov. 12, 2020); Facebook’s $10 Million Match Helps CDC Foundation Fight
9
Coronavirus, CDC FOUNDATION (Mar. 24, 2020),
10
https://www.cdcfoundation.org/blog/facebooks-10-million-match-helps-cdc-foundation-fight-
11
coronavirus (last visited Nov. 12, 2020).
12
47.
Facebook is a corporate partner of the CDC Foundation and the Silicon Valley
13
Community Foundation is a foundation partner as well. Our Partners: Foundations, CDC
14
FOUNDATION, https://www.cdcfoundation.org/partner-list/foundations (last visited Nov. 12,
15
2020). The CDC Foundation also receives substantial contributions from the pharmaceutical
16
industry.
17
48.
Facebook is listed as a “partner” on the CDC Foundation’s website under the
18
“partners” page, although the total amounts of its donations, and those of Zuckerberg
19
individually or through SVCF, are not publicly-disclosed. Our Partners: Corporations, CDC
20
FOUNDATION, https://www.cdcfoundation.org/partner-list/corporations (last visited Nov. 12,
21
2020).
22
23
49.
CDC’s “Vaccine With Confidence” strategic initiative clearly identifies the use
of social media partners to drive vaccine uptake.
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
50.
11
Vaccinate with Confidence, CDC (Oct. 11, 2019),
12
https://www.cdc.gov/vaccines/partners/downloads/Vaccinate-Confidently-2019.pdf.
13
51.
The CDC is using Facebook in particular to accomplish its goal of targeting
14
health information. “CDC encourages the strategic use of Facebook to effectively and
15
inexpensively reach individuals with personalized and targeted health information.” Social
16
Media at CDC, Tools / Facebook, CDC, https://www.cdc.gov/socialmedia/tools/facebook.html
17
(last visited Nov. 12, 2020). “Facebook, as with other social media tools, is intended to be part
18
of a larger integrated health communications strategy or campaign developed under the
19
leadership of the Associate Director of Communication Science (ADCS) in the Health
20
Communication Science Office (HCSO) of CDC’s National Centers, Institutes, and Offices
21
(CIOs).” Social Media at CDC, Guidelines & Best Practices / Facebook Guidelines and Best
22
Practices, CDC, https://www.cdc.gov/socialmedia/tools/guidelines/facebook-guidelines.html.
23
(last visited Nov. 12, 2020).
24
52.
Zuckerberg has stated publicly that Facebook is working with both the CDC and
25
the WHO: “We work with the [Centers for Disease Control and Prevention] and we work with
26
the [World Health Organization] and trusted health organizations to remove clear
27
misinformation about health-related issues that could cause an imminent risk of harm.”
28
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AXIOS on HBO: Mark Zuckerberg on Misinformation [Video], HBO,
2
https://www.youtube.com/watch?v=E5yyInwI7tw (last visited Nov. 12, 2020).
3
53.
In mid-October 2020, Facebook updated its internal public health partnership
4
strategy. It is now working even more closely with the CDC to meet ostensible public health
5
goals including pushing for flu vaccine uptake, and laying the groundwork for pushing
6
COVID-19 vaccine uptake when available.
7
54.
For example, Facebook recently launched a new public health app, “Preventive
8
Health,” which connects people to public health authority resources. Facebook acknowledges
9
it has partnered with the CDC in its development of the app.
10
11
55.
“ ‘Preventive Health’ is a new tool on Facebook that connects people to health
resources and checkup recommendations from leading health organizations.”
12
13
14
15
16
17
18
56.
19
Connecting People With Health Resources, FACEBOOK, https://preventivehealth.facebook.com/
20
(last visited Nov. 12, 2020).
21
57.
Facebook’s “Preventive Health” App will provide reminders to people to take
22
vaccines, and directly implements a public health strategy recommended by the CDC for
23
increasing vaccination coverage in adults. “Starting today, Facebook will let users choose to
24
get personalized reminders about health care tests and vaccines.” Mary Beth Griggs,
25
Facebook’s new Preventive Health tool pushes people to advocate for their health, THE VERGE
26
(Oct. 28, 2019), https://www.theverge.com/2019/10/28/20936541/facebook-preventative-
27
health-cancer-heart-disease-flu-tool. The reminder system was proposed by the CDC and
28
implemented by Facebook as a way to increase adult vaccination that can reach a large part of
21
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1
the populace. Additionally, there is the potential for monetization as the app functions as a
2
digital platform where new vaccines and FDA-approved treatments can be promoted to a wide
3
audience. Adult Vaccination Resources, Vaccines for Adults, CDC,
4
https://www.cdc.gov/vaccines/hcp/adults/for-practice/reminder-sys.html (last visited Nov. 12,
5
2020).
6
58.
This rollout furnishes additional evidence of a close and ongoing working
7
relationship between the CDC and Facebook both to encourage universal vaccination, and by
8
reasonable inference, to censor, flag, or demote contrary views. The CDC and (with the CDC’s
9
express consent) the WHO have worked closely with Facebook to determine what features
10
would be appropriate on Facebook’s platform, what information to censor, and which groups,
11
such as CHD, to demonetize. CHD requires process to ascertain, inter alia, whether or to what
12
extent the CDC and WHO themselves have flagged specific CHD content on Facebook’s
13
platform for Facebook to remove, demote, or fact-check. See, e.g., Social media giants agree
14
package of measures with UK Government to tackle vaccine disinformation, GOV.UK (Nov. 8,
15
2020), https://www.gov.uk/government/news/social-media-giants-agree-package-of-measures-
16
with-uk-government-to-tackle-vaccine-disinformation (Facebook accepting direction and
17
command – including content flagged to them by the government -- directly from U.K. public
18
officials to censor critical information and publish approved information relating to
19
Coronavirus vaccine).
20
59.
In these and other nonobvious ways, including with respect to Facebook’s
21
censorship of CHD’s COVID-19-related posts, the CDC has entered into an ongoing symbiotic
22
relationship with Facebook, which substantially benefits the government’s and social media
23
giant’s policies and priorities. As alleged infra, the CDC has given Facebook its imprimatur to
24
implement CDC/WHO-preclusive algorithms under a joint understanding to censor, flag,
25
and/or demote CHD’s posts critical of the CDC generally, and/or its vaccine recommendations
26
specifically, and damage or destroy CHD’s capacity to sustain itself financially.
27
///
28
///
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1
D.
2
3
Defendants’ Scheme to Defraud.
1.
60.
Overview.
On February 14, 2019, Rep. Schiff wrote a public letter addressed to Zuckerberg
4
“[a]s a Member of Congress who is deeply concerned about declining vaccination rates around
5
the nation,” pointedly urging that Facebook implement specific algorithms to identify, censor
6
and remove all so-called “vaccine misinformation,” and reject all paid advertising from the
7
sources of such “misinformation.” Schiff Sends Letter to Google, Facebook Regarding Anti-
8
Vaccine Misinformation, News/Press Releases, CONGRESSMAN ADAM SCHIFF (Feb. 14, 2019),
9
https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-facebook-regarding-
10
anti-vaccine-misinformation.
11
61.
The term “vaccine misinformation” (as Rep. Schiff defined it, and as Facebook
12
implemented it) is a euphemism for any expression of skepticism toward government and
13
industry pronouncements about vaccine safety and efficacy, or of reasons why parents or their
14
children’s physicians might decline to follow the CDC’s full “recommended vaccine
15
schedule,” regardless of whether those expressions are true or not. Thus, Rep. Schiff provided
16
a substantive standard — deference to CDC/WHO pronouncements conclusively presumed to
17
be “authoritative” — by which Facebook should identify and censor vaccine “misinformation”
18
on its platform. The term “vaccine misinformation” does not, for example, include erroneous,
19
misinformed or fraudulent statements made by pharmaceutical companies, or the CDC, to
20
promote vaccines.
21
62.
Rep. Schiff wrote, “I acknowledge that it may not always be a simple matter to
22
determine when information is medically accurate, nor do we ask that your platform engage in
23
the practice of medicine.” Yet, that is precisely what Rep. Schiff asked Facebook to do, and
24
this case shows the resulting harms from government engaging with a social media platform to
25
arbitrate scientific truth in that manner.
26
27
28
63.
Rep. Schiff ended his public letter to Zuckerberg:
Specifically, I request that you provide answers on the following
questions:
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(1)
Does content which provides medically inaccurate information
about vaccines violate your terms of service?
(2)
What action(s) do you currently take to address misinformation
related to vaccines on your platforms? Are you considering or
taking additional actions?
(3)
Do you accept paid advertising from anti-vaccine activists and
groups on your platforms? How much has been spent in the past
year on advertising on this topic?
(4)
What steps do you currently take to prevent anti-vaccine videos or
information from being recommended to users, either
algorithmically or as a suggested search result?
2
3
4
5
6
7
8
9
I appreciate your timely response to these questions and encourage
you to consider what additional steps you can take to address this
growing problem. As more Americans rely on your services as
their primary source of information, it is vital that you take that
responsibility with the seriousness it requires, and nowhere more so
than in matters of public health and children’s health. Thank you
for your attention to this important topic.
10
11
12
13
14
15
16
Id.
64.
Rep. Schiff’s pointed questions and requests clearly express his own definite
17
position on the science, and his expectation that Facebook and Zuckerberg would adhere to and
18
implement policies consistent with that position. On information and belief, Zuckerberg met
19
personally with Rep. Schiff subsequently to discuss, inter alia, Facebook’s compliance with
20
Rep. Schiff’s February 14, 2019 public letter and press release, and those specific standards
21
which were or would be used to identify and censor vaccine “misinformation.” At the same
22
time and subsequently, in his role as Chairman of the House Intelligence Committee, Rep.
23
Schiff stated publicly that Congress could or should “make changes to” the law that does not
24
currently hold social media companies liable for third-party content on their platforms. See,
25
e.g., Hearing by Congress on "deepfakes" and artificial intelligence [Video], GUARDIAN NEWS
26
(June 13, 2019), https://www.youtube.com/watch?v=lArPEDS0GTA. Rep. Schiff told
27
reporters that, “if the social media companies can’t exercise a proper standard of care when it
28
comes to a whole variety of fraudulent or illicit content, then we have to think about whether
24
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1
that immunity still makes sense. These are not nascent industries or companies that are
2
struggling for viability; they’re now behemoths, and we need them to act responsibly." K.
3
Waddell, A new attack on social media's immunity, AXIOS (June 13, 2019),
4
https://www.axios.com/social-media-immunity-section-230-f15ac071-32e9-4e33-81e6-
5
4c7ebadaea5e.html.
6
65.
On March 4, 2019, Lyn Redwood, CHD President, sent a 9-page letter addressed
7
to “Mark Zuckerberg, Chairman and Chief Executive Officer, Facebook Inc., 1 Hacker Way,
8
Menlo Park, CA 94025” and offered in rebuttal of Representative Schiff’s letter. From his
9
public statements and adverse motives, see infra, it may be reasonably inferred that Zuckerberg
10
was personally and directly involved in decisions and actions which Facebook took to censor
11
and/or “fact-check” CHD’s individual posts, and knowingly mislead users about the
12
truthfulness of CHD’s posts, and on the CHD account level, deliberately mislead users about
13
CHD’s page’s reliability, and remove its advertising and fundraising tools. Zuckerberg and/or
14
the Doe defendants responsible for those actions either read CHD’s March 4, 2019 letter or
15
rejected it without reading, but in either event, they did no investigation of it and proceeded
16
within days to publish their warning label and “fact-checks” with a “high degree of awareness
17
of … probable falsity,” “serious doubts,” or “reckless disregard” as to [their] truth. Harte-
18
Hanks Commc’ns Inc. v. Cunningham, 491 U.S. 657, 667 (1989).
19
66.
Because it is highly relevant to Plaintiff’s claims, the letter is quoted extensively
20
here, and attached to this Complaint as Exhibit “A.” CHD’s letter explains its position with
21
respect to vaccine safety and Facebook’s role as content moderator, as follows:
22
23
24
25
26
27
We, too, are highly concerned that the public is being misinformed
about vaccines, and we agree that Facebook could play a positive
role in helping to resolve this problem. But we strongly disagree
that the means by which Facebook can do so is by preventing users
from seeing information that calls into question government
policies related to vaccinations. On the contrary, the means by
which Facebook can help empower people to make an informed
choice is to facilitate a free market of ideas and let users determine
for themselves the value of content that appears in their newsfeeds.
28
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2
3
4
5
6
7
8
9
10
[Representative Schiff’s] true criterion for determining what
information constitutes a “threat” is not whether it is truthful and
accurate, but whether or not it accords with the goal of achieving
high vaccination rates. [. . . ] an implicit assumption underlying Mr.
Schiff’s criterion for determining what constitutes
“misinformation” is that the CDC is infallible in its vaccine
recommendations. We emphatically disagree and must reject this
assumption as totally illogical and unscientific.
Mr. Schiff would have you take steps to prevent “vaccine
misinformation” from proliferating, but who is to decide what
constitutes misinformation? Which party to the debate can claim a
monopoly on truth? [. . .] Efforts to stifle discussion and debate
about such an important issue constitute a serious threat to both our
health and our liberty.
11
12
13
14
15
16
17
18
The statement assumes that all vaccines are safe and effective for
everybody, but what there is a scientific consensus about is that
that is absolutely not true. Indeed, it is meaningless to treat
“vaccines” as a product concept when speaking in terms of safety
and effectiveness because each vaccine has a different profile.
There is a risk-benefit analysis that must be done for each one. Not
all vaccines are considered safe. Not all are considered effective. In
the scientific literature, there is a great deal of uncertainty and
debate about the safety and effectiveness of individual vaccines, as
well as their combined effects and the long-term consequences of
vaccinating children according to the CDC’s schedule.
19
20
21
22
23
24
25
26
27
28
[. . .]
Increasingly, we are learning from scientific research that there
are opportunity costs associated with vaccination. [. . .] It is a great
cause for concern that public health officials simply do not take
such opportunity costs into consideration when formulating public
vaccine policies.
In addition to disregarding the variable profile of each vaccine, Mr.
Schiff’s statement ignores the variability in children’s responses to
vaccinations. The risk-benefit must be conducted for each vaccine
and for every individual child. Not every child is at the same risk
from a given infectious disease. Not every child will have the same
immune response to a vaccine intended to prevent that disease. And
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2
3
4
not every child is at the same risk of harm from the vaccine. That
there are subpopulations of children who are at higher risk of being
killed or permanently injured by vaccines is well recognized within
the scientific community.
[. . .]
5
6
7
8
9
10
Unfortunately, the public health objective of achieving high
vaccination rates is not necessarily conducive to the objective of
improving public health, and the same cognitive dissonance evident
in the FDA’s remark is reflected in Mr. Schiff’s objection to
information being shared on Facebook that isn’t conducive to the
government’s goal of persuading or coercing parents through
mandates to strictly comply with the CDC’s routine childhood
vaccine schedule.
11
12
13
14
15
16
17
18
19
20
21
22
Certainly, to inform parents about this compensation program and
the legal immunity for vaccine manufacturers might cause them to
think twice about vaccinating their children. Contrary to Mr.
Schiff’s criterion, it does not follow that they shouldn’t be
informed.
[. . .]
The CDC itself is a leading purveyor of misinformation about
vaccines. For example, a literature review by the prestigious
Cochrane Collaboration on the safety and effectiveness of the
influenza vaccine concluded that the fundamental assumptions
underlying the CDC’s universal flu shot recommendation are
unsupported by the scientific evidence and, furthermore, that the
CDC has deliberately misrepresented the science in order to
support its policy.
[. . .]
23
24
25
26
So, if Facebook is going to start preventing the spread of vaccine
misinformation, is it going to block links to pages from the CDC’s
website wherein such dangerously misleading claims are made?
[. . .]
27
28
To sum up, there is indeed a serious problem today with respect to
the propagation of misinformation about vaccines, but there are no
27
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greater purveyors of vaccine misinformation than the government
and corporate news media. It is entirely inappropriate for elected
government officials to be instructing media companies to censor
criticism of entire categories of pharmaceutical products.
2
3
4
[. . .]
5
Without prejudice to your company’s right to determine your
service’s own terms of use, we believe that respect for this human
right is the value that Facebook should be upholding, along with
the right to informed consent, which is one of the most
fundamental ethics in the practice of medicine.
6
7
8
9
10
A true and correct copy of the letter is attached as Exhibit “A” hereto. Letter to Facebook,
11
CHILDREN’S HEALTH DEFENSE (Mar. 4, 2019), https://childrenshealthdefense.org/wp-
12
content/uploads/FINAL-CHD-Letter-to-Facebook-1.pdf (emphases added).
13
67.
Nonetheless, Facebook conducted no investigation whatsoever to confirm or
14
refute the material facts asserted in CHD’s March 4, 2019 letter. Rather, Facebook and
15
Zuckerberg personally determined that the course of action Rep. Schiff actively encouraged —
16
to work and act in concert with individuals or officers at the CDC and WHO, to implement
17
algorithms to identify any posts critical to CDC/WHO-pronouncements — would assist
18
Facebook to avoid any legislative rollback of “service provider” immunity from liability under
19
the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1). The close sequence of
20
events which followed closely upon Rep. Schiff’s letter to Zuckerberg suggest that Schiff’s
21
pointed requests had an immediate effect on Facebook and that Zuckerberg had determined
22
that it was in Facebook’s interests to cooperate with the government.
23
24
25
26
27
28
68.
On March 7, 2019, Monika Bickert, Facebook’s Vice President for Global Policy
Management, issued an online press release stating that:
We are working to tackle vaccine misinformation on Facebook by
reducing its distribution and providing people with authoritative
information on the topic. We are starting by taking a series of steps:
We will reduce the ranking of groups and Pages that spread
misinformation about vaccinations in News Feed and Search.
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2
3
4
5
6
7
8
These groups and Pages will not be included in recommendations
or in predictions when you type into Search.
When we find ads that include misinformation about vaccinations,
we will reject them. We also remove related targeting options, like
“vaccine controversies.” For ad accounts that continue to violate
our policies, we may take further action, such as disabling the ad
account.
We won’t show or recommend content that contains
misinformation about vaccinations on Instagram Explore or
hashtag pages.
9
10
We are exploring ways to share educational information about
vaccines when people come across misinformation on this topic.
11
12
13
14
Update on April 26, 2019 at 10AM PT: We may also remove
access to our fundraising tools for Pages that spread
misinformation about vaccinations on Facebook.
How This Will Work
15
16
17
18
Leading global health organizations, such as the World Health
Organization and the US Centers for Disease Control and
Prevention, have publicly identified verifiable vaccine hoaxes. If
these vaccine hoaxes appear on Facebook, we will take action
against them.
19
20
21
22
23
24
25
26
27
For example, if a group or Page admin posts this vaccine
misinformation, we will exclude the entire group or Page from
recommendations, reduce these groups and Pages’ distribution in
News Feed and Search, and reject ads with this misinformation.
We also believe in providing people with additional context so they
can decide whether to read, share, or engage in conversations about
information they see on Facebook.We are exploring ways to give
people more accurate information from expert organizations about
vaccines at the top of results for related searches, on Pages
discussing the topic, and on invitations to join groups about the
topic. We will have an update on this soon.
28
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1
We are fully committed to the safety of our community and will
continue to expand on this work.
2
3
Combatting Vaccine Misinformation, FACEBOOK, https://about.fb.com/news/2019/03/
4
combatting-vaccine-misinformation (last visited Aug 14, 2020) (emphases added).
5
69.
On September 4, 2019, the WHO Director-General issued a public statement that
6
it “welcomes the commitment by Facebook to ensure that users find facts about vaccines
7
across Instagram, Facebook Search, Groups, Pages and forums where people seek out
8
information and advice. Facebook will direct millions of its users to WHO’s accurate and
9
reliable vaccine information in several languages, to ensure that vital health messages reach
10
people who need them the most. The World Health Organization and Facebook have been in
11
discussions for several months to ensure people can access authoritative information on
12
vaccines and reduce the spread of inaccuracies on Facebook and Instagram.” Vaccine
13
Misinformation: Statement by WHO Director-General on Facebook and Instagram, WORLD
14
HEALTH ORGANIZATION (Sept. 4, 2019), https://www.who.int/news-room/detail/04-09-2019-
15
vaccine-misinformation-statement-by-who-director-general-on-facebook-and-instagram
16
(emphases added). The WHO Director-General’s public statement strongly suggests that the
17
WHO has been directly involved in defining what constitutes “vaccine misinformation” for
18
Facebook. It also implies that the WHO has provided input regarding what exact features may
19
be most effective. The CDC’s active, if “nonobvious” involvement in Facebook’s conduct may
20
be reasonably inferred. CHD requires process to identify the government officials who
21
participated in these pre-roll out discussions with Facebook, and the standards and practices
22
which they discussed or agreed upon, and other facts and circumstances of the “non-obvious
23
involvement of the State in private conduct” of Facebook and Zuckerberg. Burton v.
24
Wilmington Parking Authority, 365 U.S. 715, 722 (1961). At all times relevant hereto, the
25
United States was a member of the WHO, a United Nations specialized agency. Notably, under
26
Article 71 of its Constitution, the WHO may only consult and cooperate with non-
27
governmental national organizations with the consent of the Government concerned. Basic
28
Documents, WORLD HEALTH ORGANIZATION (49th Ed. 2020),
30
VERIFIED FIRST AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 58 of 175
1
https://apps.who.int/gb/bd/pdf_files/BD_49th-en.pdf#page=1. In light of their public
2
statements and close affiliation on matters relating to vaccines, it is reasonable to infer that the
3
CDC was the responsible federal agency which gave the WHO its consent on behalf of the
4
U.S. Government to actively collaborate with Facebook. Plaintiff requires process to confirm
5
that the CDC gave its consent to the WHO’s formation of its private-public partnership with
6
Facebook, and that the CDC itself participated in other non-obvious ways.
7
70.
The same day, September 4, 2019, that the WHO publicly lauded its close
8
collaboration with Facebook to “ensure people can access authoritative information [] and
9
reduce the spread of inaccuracies,” Facebook synchronously published a “Warning Label” in
10
bold black letters at the top of CHD’s Facebook page, which states:
This Page posts about vaccines
11
12
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.
13
14
15
Go to CDC.gov
16
17
71.
Both before and after September 4, 2019, Facebook also implemented a “fact-
18
checking” campaign concerning content on Plaintiff’s page, in further coordination with the
19
CDC and WHO, designed to materially misrepresent Plaintiff’s content. Thus, Facebook killed
20
two birds with one stone: Facebook delivered what Rep. Schiff had forcefully requested — the
21
“vaccine misinformation” campaign — which in turn would help it achieve the continued
22
preservation of its desired Section 230 immunity. At the same time, Rep. Schiff’s demand
23
provided Facebook with cover for its own ulterior business motives, and pretext to launch its
24
own fraudulent scheme to cause reputational harm and financial loss to CHD, and illicit gain to
25
Facebook, by means of false representations and knowingly false suggestions. For Zuckerberg
26
and the other defendants, this was a classic “win-win” proposition.
27
28
72.
In perpetrating its fraud scheme, Facebook’s modus operandi was to treat any
information that does not advance the CDC and WHO’s policy goal of maintaining or
31
VERIFIED FIRST AMENDED COMPLAINT
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1
increasing vaccination rates as “false,” “fake,” “misinformation,” or “hoax,” irrespective of its
2
objective truth or the fact that it constitutes or qualifies as opinion. Facebook treats even the
3
view that parents have a right to informed consent, one of the most fundamental ethics in
4
medicine, as censorable “misinformation.” Any information related to the risks of vaccination,
5
no matter how well-grounded in science, is labeled and censored as “misinformation.”
6
Facebook then trained its technical means and methods on identifying and eliminating all such
7
content under the banner of “falsity.” By contrast, Facebook broadly incorporates and
8
promotes the CDC and WHO’s policy pronouncements on these issues as established “fact.”
9
Combatting Vaccine Misinformation, FACEBOOK, supra, https://about.fb.com/news/2019/03/
10
combatting-vaccine-misinformation.
11
73.
The Merriam-Webster Dictionary defines “misinformation” as “incorrect or
12
misleading information,” and defines “information” as “(1) knowledge obtained from
13
investigation, study, or instruction; (2) intelligence, news; (3) facts, data.” Information,
14
Merrian-Webster.com, https://www.merriam-webster.com/dictionary/information (last visited
15
Aug. 14, 2020). Facebook’s charge that Plaintiff’s content is “false information” conveys to
16
third-party users that it is demonstrably, provably false.
17
74.
Additionally, on May 21, 2020, Zuckerberg reportedly stated that “misleading
18
conspiracy theories around 5G on Facebook pose a risk of immediate physical harm” and that
19
his Facebook “team is working urgently to remove dangerous and deadly ‘fake news’ posts
20
about 5G.” He added that, “5G misinformation [] has led to some physical damage of 5G
21
infrastructure. So we believe that that is leading to imminent risk of physical harm. We take
22
down that content.” S. Keach, Facebook’s 5G fake news poses ‘risk of immediate physical
23
harm’, Zuckerberg warns, IRISH SUN (May 21, 2020), https://www.thesun.ie/tech/5453017/
24
facebook-5g-fake-news-mark-zuckerberg-physical-harm-masts-burning/. In other words,
25
Facebook takes the position that incidents of protestors (who have no connection with CHD)
26
burning telephone poles with 5G transmitters constitutes an “imminent risk of physical harm”
27
sufficient to warrant blocking CHD’s 5G safety content, irrespective of its truth. Thus, for
28
Zuckerberg’s own profit, caprice, or ill will, see infra, Facebook untethers the “clear and
32
VERIFIED FIRST AMENDED COMPLAINT
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1
present danger” standard from any recognizable mooring in the First Amendment. See, e.g.,
2
Bridges v. California, 314 U.S. 252, 263 (1941) (Black, J.) (“What finally emerges from the
3
‘clear and present danger’ cases is a working principle that the substantive evil must be
4
extremely serious and the degree of imminence extremely high before utterances can be
5
punished.”).
6
75.
Facebook has an undoubted right “to control its own product, and to establish the
7
terms with which its users, application developers, and advertisers must comply in order to
8
utilize this product.” Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1076
9
(S.D. Cal. 2016). But, here, even Facebook cannot avoid liability for provable injury to
10
Plaintiff’s property rights and intangible assets based on fraud and misrepresentation. See, e.g.,
11
Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (en banc)
12
(service provider may be liable where it makes answering discriminatory questions a condition
13
for doing business on its site).
14
76.
Thus, Facebook’s ownership of its platform does not give it free rein to develop,
15
create, and publish false and misleading content on CHD’s page, or to create tags which
16
mislead third-party users about the truthfulness of content on CHD’s pages, or to drive traffic
17
from CHD’s page to the CDC, to advance Facebook’s adverse business interests. Facebook’s
18
control over the manner in which its users view its website does not encompass the right to
19
commit acts of censorship, false disparagement, and fraud.
20
77.
Over the past fifteen months or longer, defendants have carried out a fraudulent
21
scheme to misrepresent, censor, and exclude CHD’s viewpoint on vaccine and 5G network
22
safety.
23
24
2.
78.
Means and Methods of Defendants’ Scheme.
Since on or about January 15, 2019, defendants have engaged in a scheme, plan
25
and artifice to disparage and defraud CHD, and cause it to lose money and goodwill, and to
26
obtain money and property by means of materially false and fraudulent pretenses,
27
representations, and promises, through three principal methods: (A) making materially false
28
statements; (B) omitting to disclose material facts; and (C) creating a materially deceptive
33
VERIFIED FIRST AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 61 of 175
1
scheme. Defendants have created the false and misleading appearance to all third-party users
2
that CHD is in violation of Facebook’s Terms for publishing “false information” about vaccine
3
and 5G network safety, and defendants have used that ruse to deactivate CHD’s direct
4
fundraising and reject its paid advertisements, censor CHD’s content and user posts, publish
5
materially false or misleading content on CHD’s page, “shadow ban” CHD and “sandbox”
6
third-party users, i.e., deceptively limit the reach of other CHD content to those users whom
7
Facebook psychologically profiles as “undecided,” and conceal their methods and
8
collaborators. In truth, as defendants are fully aware, CHD has not posted any false
9
information, promoted any false content, or violated any fundraising or other terms of service.
10
11
12
79.
Defendants Facebook, Zuckerberg, Science Feedback, Poynter, , and others
engaged in a scheme to defraud CHD by, among other conduct:
(A)
Misrepresenting as fact to CHD that CHD’s fundraising function was
13
deactivated because CHD violated its terms of service with Facebook by
14
posting “false information” with respect to vaccines.
15
(B)
Misrepresenting as fact to CHD’s outside ad agency that CHD’s
16
fundraising advertisements were rejected because CHD violated its terms
17
of service with Facebook by posting “false information” with respect to
18
vaccines. Facebook did not (nor can it) produce any evidence of actual
19
falsity in such advertisements.
20
(C)
Misrepresenting as fact to all third-party Facebook users by means of a
21
“warning label” on CHD’s page that the CDC has “reliable, up-to-date
22
information about vaccines,” and that such users should “go to CDC.gov,”
23
and, by classic imputation of dishonesty, falsely suggesting that the
24
vaccine-related content on CHD’s page is not reliable, up-to-date
25
information.
26
(D)
Misrepresenting as facts to all third-party Facebook users that particular
27
enumerated CHD-, RFK, Jr.- and third party-content posted on the CHD
28
page contains “False Information Checked by independent fact-checkers,”
34
VERIFIED FIRST AMENDED COMPLAINT
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and to “see why” users should instead accept the opposition content
2
posted by Facebook’s “fact-checkers” on CHD’s page as “true”
3
information on the same subjects.
4
(E)
Engaging deceptive mechanisms and machine-learning algorithms, which
5
secretly demote, hide, and/or limit the visibility and reach of CHD
6
vaccine- and 5G network-related content (practices known as “shadow-
7
banning” or “deboosting”) from third party users whom Facebook
8
psychologically profiles as “undecided” (a practice known as
9
“sandboxing”) in order to hide content from those it might sway, while
10
misrepresenting to CHD and all third-party Facebook users that no such
11
artificial processes or limitations have occurred.
12
(F)
Misrepresenting as fact to all third-party Facebook users that Facebook
13
relies upon “independent fact-checkers” to identify and tag “false
14
information” on CHD’s Facebook page based on a set of objectively-
15
neutral, reliable, and up-to-date factual criteria, when the criteria that is
16
actually applied is neither neutral, reliable, nor up-to-date, and the “fact-
17
checkers” are in privity with, or controlled by Facebook. The absurdity of
18
these misrepresentations hits home when one considers that Facebook and
19
Science Feedback created a “fact-checking” exemption for climate science
20
deniers by deeming climate disinformation ineligible for “fact-checking,”
21
because it is “opinion.” Emily Atkin, Facebook creates fact-checking
22
exemption for climate deniers, HEATED (Jun. 24, 2020),
23
https://heated.world/p/facebook-creates-fact-checking-exemption.
24
(G)
Misrepresenting as fact to third-party Facebook users that CHD’s 5G-
25
related content was demoted because it poses an “imminent risk of
26
physical harm,” when Facebook took this action solely to advance its own
27
economic interests in 5G development and deployment.
28
35
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 63 of 175
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(H)
Misrepresenting as fact to all third-party Facebook users that users such as
2
CHD who have had content removed from or tagged on its platform, can
3
appeal that decision either to Facebook’s content moderator panel, or to an
4
“independent” “Oversight Board,” and that in making such
5
determinations, Facebook does not have any conflicts of interest that
6
compromise its judgment. M. Zuckerberg, Facebook’s commitment to the
7
Oversight Board, FACEBOOK (Sept. 2019), https://about.fb.com/wp-
8
content/uploads/2019/09/letter-from-mark-zuckerberg-on-oversight-
9
board-charter.pdf.
10
(I)
11
Concealing the extent to which Facebook actively collaborated with Rep.
Schiff, the CDC and WHO, inter alia, to implement their overall scheme.
12
(J)
Concealing their overall scheme by these and other deceptions, including
13
false and disparaging statements about CHD to users of CHD’s Facebook
14
page, and to other third parties.
15
80.
Among the means and methods by which these defendants carried out the
16
scheme to defraud Plaintiff were their transmission by means of wires in interstate commerce
17
of the following telephone calls, emails and/or online communications that contained
18
materially false and misleading information, or made use of the wires in furtherance thereof,
19
and proximately caused damages, including
20
(1) falsely disparaging "warning label"; (2) materially deceptive use of "fact-checkers";
21
(3) disabling CHD's fundraising tools, donate button, and ads; (4) demoting CHD’s 5G-related
22
posts in bad faith; (5) disabling CHD's right to "appeal"; and (6) concealment of the overall
23
scheme.
24
25
3.
81.
Falsely Disparaging Warning Label.
As alleged supra, on September 4, 2019, after “several months of discussion”
26
with the WHO (Vaccine Misinformation: Statement by WHO Director-General on Facebook
27
and Instagram, supra, https://www.who.int/news-room/detail/04-09-2019-vaccine-
28
36
VERIFIED FIRST AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 64 of 175
1
misinformation-statement-by-who-director-general-on-facebook-and-instagram), Facebook
2
published a Warning Label in bold black letters at the top of CHD’s Page, which states:
This Page posts about vaccines
3
4
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.
5
6
7
Go to CDC.gov
8
9
10
11
12
13
14
15
16
17
18
82.
19
83.
Facebook re-publishes this disparaging falsehood every time a user uploads
20
CHD’s Facebook page, as has occurred literally hundreds of thousands of times since
21
September 4, 2019.
22
84.
Facebook’s warning label conveys in clear terms to any user that what they see
23
on CHD’s page is not reliable and not up-to-date, and it directs the user instead to “go to
24
CDC.gov” for reliable and up-to-date “information” about vaccines. Any user visiting a
25
webpage scans the immediately-visible content before scrolling down to view the remainder of
26
the content. Consequently, the top banner space of any webpage is valuable “screen real-
27
estate” where prime content can be shown. Facebook’s intended effect is to deprive CHD of
28
this screen space and to redirect users away from CHD’s page to the CDC website. Zuckerberg
37
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 65 of 175
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publicly boasts that his “warning labels” and “fact-checks” effectively divert 95% or more of
2
all users from clicking through to the actual content. Entire CNN April 16 Coronavirus Town
3
Hall [Video], CNN BUSINESS (Apr. 17, 2020),
4
https://www.cnn.com/videos/business/2020/04/17/entire-april-16-coronavirus-town-hall-part-
5
5-sot-vpx.cnn.
6
85.
Facebook’s use of the warning label effectively reduces third party user traffic to
7
CHD’s page in at least three ways: First, it redirects a certain percentage of users (known only
8
to Facebook) toward “authoritative sources,” who will not return to view the material deemed
9
“misinformation.” Second, it directly targets seekers of information (the most important target
10
audience) with the information that governmental authorities want them to see. Third, it
11
intentionally and by necessary implication undermines the credibility and message of the
12
source (CHD’s page) where the pop-up warning feature is placed. As customary and usual
13
Silicon Valley practice, such features are heavily tested using A/B testing for effectiveness
14
prior to widespread deployment.
15
86.
On or about September 10, 2019, in response to Facebook’s disparaging warning
16
label, CHD added text to the top of its Facebook page that states: “Read about CDC & WHO
17
corrupt financial entanglements with vaccine industry: childrenshealthdefense.org/cdc-who.”
18
4.
19
20
Materially Deceptive use of “Fact-Checkers.”
a.
87.
Facebook/”Fact-Checker” Agency Relationship.
Facebook and Zuckerberg personally developed their “fact-checker” apparatus in
21
a concerted effort to cloak Facebook’s censorship activities with Section 230(c)(1) immunity
22
for hosting content nominally “created” by third parties. But, in reality, Facebook maintains
23
supervision and control over many, if not all, aspects of the “fact-checker” processes connected
24
to CHD’s posts. By its own engagement with those overlays, warnings, and “fact-check”
25
explanations, Facebook and Zuckerberg had knowledge of their material falsity, or acted in
26
reckless disregard for the truth.
27
28
88.
First, Facebook deployed its own employees and artificial intelligence (“AI”)
machine-learning mechanisms to identify and flag the CHD posts at issue (including any CHD
38
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 66 of 175
1
posts which were originally flagged for Facebook by the CDC or WHO) which Facebook then
2
directed to its “fact-checkers” — Science Feedback, a French entity, and Poynter — to review.
3
The AI machine learning models developed to detect misinformation signals are owned and
4
were originally trained by Facebook’s selection of inputs. Machine learning models rely upon
5
training and need to be trained upon a set of inputs, which Facebook itself selects. Thus, the
6
validation and deployment of the machine learning models by which vaccine “misinformation”
7
is directed to “fact-checkers” is wholly controlled by Facebook.
8
89.
Second, Facebook’s Trust and Safety Division provided these “fact-checkers”
9
with training manuals and other materials with which to review CHD’s posts, and Facebook’s
10
set of prepopulated screening options. Facebook's materials evidently referenced
11
"authoritative" CDC/WHO sources for the "fact-checkers" to cite. Facebook helps develop and
12
create the "fact-checkers" content. (We cannot know at this time whether Facebook also
13
translates Science Feedback’s posts from French into English. Facebook posted Corrrectiv's
14
untranslated German fact-check over a CHD post.)
15
90.
Third, Facebook evidently directed its Science Feedback and Poynter “fact-
16
checkers” to bypass the “opinion” prepopulated screening option because that option does not
17
result in a “fact-check” overlay. (As discussed infra, at least some of the CHD posts at issue
18
should have been classified as “Opinion” based on fully-disclosed facts.) As has been
19
documented elsewhere, Facebook can and does pressure its “fact-checkers” to change ratings.
20
“In some cases, Facebook has reevaluated fact-check labels or penalties after fact-checkers had
21
acted, often in the wake of political, financial, and PR pressures.” Alex Pasternack, Facebook
22
is quietly pressuring its independent fact-checkers to change their rulings, FAST COMPANY
23
(Aug. 20, 2020), https://www.fastcompany.com/90538655/facebook-is-quietly-pressuring-its-
24
independent-fact-checkers-to-change-their-rulings (last visited Nov. 12, 2020).
25
91.
Fourth, Facebook provides a substantial portion of the “fact-checkers’” operating
26
budgets which is at least 5% (the actual amount is not disclosed), and gives the “fact-checkers”
27
more compensation on a post-by-post basis when the “fact-checkers” label posts “false” or
28
39
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 67 of 175
1
“partly false,” with resulting opposition content-development, than when posts are labeled
2
protected “opinion” instead.
3
92.
Fifth, Facebook retains final control over the “fact-checker”- developed content.
4
The technology that displays fact-checking posts on CHD pages is owned by Facebook.
5
Control over the CHD page graphical elements (the grey overlay which obscures CHD’s
6
content and labels it “false information checked by independent fact-checkers”) is exercised by
7
Facebook, not its “fact-checkers.” The technology to limit visibility as a result of “fact-
8
checking” rating is controlled by Facebook. Facebook's Enforcement of Fact-Checker Ratings,
9
FACEBOOK FOR BUSINESS, Business Help Center,
10
https://www.facebook.com/business/help/297022994952764?id=673052479947730&recomme
11
nded_by=2593586717571940 (last visited Nov. 12, 2020). Facebook decides whether to
12
publish “fact-checker” posts in whole or in part, and — crucially — Facebook posts them to
13
CHD’s page, not to the “fact-checkers’” pages. Context is everything. Facebook’s posting of
14
its “fact-checker” content directly to CHD’s page wrongly presumes that CHD has no
15
beneficial right or interest in its page, or in being free of Facebook’s deliberate falsehoods as a
16
condition of doing business on Facebook. See, e.g., Fair Hous. Council v. Roommates.com,
17
LLC, 521 F.3d at 1166 (CDA Section 230 immunity did not protect website which made
18
answering discriminatory questions, which violated the Fair Housing Act, a “condition of
19
doing business” on the site). Facebook is also responsible for the technology that handles
20
consequences of fact-checking rating, including reduced distribution, share warning pop-ups,
21
sharing notifications, misinformation labels, and reducing the distribution of CHD’s other
22
posts, and demonetizing CHD’s page.
23
93.
In these, and other nonobvious ways, Facebook and Zuckerberg have established
24
an elaborate and intricate agency relationship with Science Feedback and Poynter, their
25
designated vaccine “misinformation” “fact-checkers.” Facebook the corporation and
26
Zuckerberg the individual are both “responsible, in whole or in part, for the creation or
27
development of information” under 47 U.S.C. § 230(f)(3) which information Facebook falsely
28
purports to have been “independently” created and developed in whole by its nominally-third-
40
VERIFIED FIRST AMENDED COMPLAINT
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1
2
party “fact-checkers.”
94.
Moreover, the web of other interrelationships between these defendants and
3
various other entities, named and unnamed as parties herein, demonstrate the lack of
4
independence between these organizations and the bias of these organizations against vaccine
5
safety advocates such as CHD. For example, the Silicon Valley Community Foundation
6
(“SVCF”) is another of Poynter’s major funders (besides Facebook). Largest funders of
7
Poynter, supra, POYNTER.ORG, https://www.poynter.org/major-funders/. SVCF granted over
8
$256,000 to Poynter in 2018. Grants: Where the Giving Goes, SILICON VALLEY COMMUNITY
9
FOUNDATION, Community Impact, https://www.siliconvalleycf.org/2015grantees (last visited
10
Nov. 12, 2020). Zuckerberg has donated substantial funds to SVCF: $500 million in 2012, $1
11
billion in 2013, and $214 million in 2018, all in Facebook stock. Facebook Founder
12
Announces $500 Million to Silicon Valley Community Foundation, PND (Dec. 20, 2012),
13
https://philanthropynewsdigest.org/news/facebook-founder-announces-500-million-to-silicon-
14
valley-community-foundation; Brandon Baily, Facebook’s Mark Zuckerberg makes $1 billion
15
donation, THE MERCURY NEWS (Dec. 19, 2013),
16
https://www.mercurynews.com/2013/12/19/facebooks-mark-zuckerberg-makes-1-billion-
17
donation/; Kathleen Chaykowski, Zuckerberg Donates $200 Million To Silicon Valley
18
Community Foundation As It Hires New CEO, FORBES (Nov. 10, 2018),
19
https://www.forbes.com/sites/kathleenchaykowski/2018/11/10/zuckerberg-donates-214-
20
million-to-silicon-valley-community-foundation-as-it-hires-new-ceo/?sh=1897d9b4550d.
21
95.
More recently, both Facebook and CZI donated to SVCF (particularly to its
22
Coronavirus Response). Coronavirus Response Donors, SILICON VALLEY COMMUNITY
23
FOUNDATION, SVCF Coronavirus Response, https://www.siliconvalleycf.org/coronavirus-
24
response-donors (last visited Nov. 12, 2020). Recently, 25% of SVCF’s grants has fallen into
25
the “health” category. Fundraising In A Pandemic: Where To Pivot And Persist, CCS
26
FUNDRAISING, https://sftp.polsinelli.com/webinar/Fundraising-Webinar-6.10.20.pdf. Despite
27
its name, which suggests local Silicon Valley focus, SVCF is a leading international granting
28
foundation and makes grants worldwide. For example, in 2019 SVCF granted $200,000 to the
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Walter and Eliza Hall Institute of Medical Research in Australia, which, among other things,
2
works in vaccine development. Vaccine development, WEHI (The Walter and Eliza Hall
3
Institute of Medical Research), https://www.wehi.edu.au/research/research-
4
technologies/vaccine-development (last visited Nov. 12, 2020); Grants: Where the Giving
5
Goes, SILICON VALLEY COMMUNITY FOUNDATION, Community Impact,
6
https://www.siliconvalleycf.org/grantees. Grantees in the United States include Children’s
7
Hospital of Philadelphia, PATH, and the Chan Zuckerberg BioHub, Inc. for which the
8
following 2019 transactions were noted:
9
10
11
12
96.
13
97.
The Chan Zuckerberg Initiative also makes grants through entities including the
14
Chan Zuckerberg Initiative Donor-Advised Fund (DAF) at the SVCF. Grants, CHAN
15
ZUCKERBERG INITIATIVE, https://chanzuckerberg.com/grants-ventures/grants/ (last visited Nov.
16
12, 2020).
17
98.
Poynter founded the International Fact-Checking Network (“IFCN”) in 2015.
18
IFCN is a unit of Poytner the purpose of which is to bring together “fact-checkers” on an
19
international level and, in its own words, to “help[ ] surface common positions among the
20
world’s fact-checkers.” The International Fact-Checking Network, POYNTER.ORG,
21
https://www.poynter.org/ifcn/ (last visited Nov. 12, 2020).
22
99.
All Facebook “fact-checking” partners must be “certified” through IFCN.
23
Partnering with Third-Party Fact-Checkers, FACEBOOK, Journalism Project (Mar. 23, 2020),
24
https://www.facebook.com/journalismproject/programs/third-party-fact-checking/selecting-
25
partners.
26
100.
IFCN’s own website features its relationship with Facebook:
27
28
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2
3
4
5
6
7
8
9
101.
10
The code and the platforms, POYNTER.ORG, https://ifcncodeofprinciples.poynter.org/know-
11
more/the-code-and-the-platforms (last visited Nov. 12, 2020).
12
102.
The IFCN certification of Poynter’s own branded unit “PolitiFact” expired on
13
June 20, 2020. Further, as shown by IFCN’s website, PolitiFact scored low in a number of
14
categories assessed in the certification process, including transparency of sources,
15
nonpartisanship and fairness, and transparency of methodology. PolitiFact, POYNTER.ORG,
16
IFCN Code of Principles, https://ifcncodeofprinciples.poynter.org/profile/politifact (last visited
17
Nov. 12, 2020).
18
103.
Defendant Science Feedback also is certified by and a signatory to Poynter’s
19
IFCN. Science Feedback, POYNTER.ORG, IFCN Code of Principles,
20
https://ifcncodeofprinciples.poynter.org/profile/science-feedback (last visited Nov. 12, 2020).
21
Though a French entity, Science Feedback delivers its work-product to Facebook’s offices and
22
committed other acts in furtherance of the defendants’ fraudulent scheme in this District.
23
104.
Science Feedback describes itself as “the only organization dedicated to
24
verifying information in scientific fields by empowering the scientific community to take an
25
active part in this endeavour to make the Internet a more credible place.” Science Feedback
26
partnering with Facebook in fight against misinformation, SCIENCE FEEDBACK (May 14,
27
2019), https://sciencefeedback.co/science-feedback-partnering-with-facebook-in-fight-against-
28
misinformation/ (last visited Nov. 12, 2020).
43
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105.
Science Feedback has partnered with Facebook since at least April 2019 to fact
2
check Facebook content. Id., Science Feedback partnering with Facebook in fight against
3
misinformation, supra, SCIENCE FEEDBACK, https://sciencefeedback.co/science-feedback-
4
partnering-with-facebook-in-fight-against-misinformation/.
5
106.
Health Feedback contributors include numerous pro-vaccine scientists and
6
vaccine patent holders, including Ian Frazer, Neal Halsey, Walter A. Orenstein, and Beate
7
Kampmann, among others. Reviewers, HEALTH FEEDBACK, Community,
8
https://healthfeedback.org/community/ (last accessed Nov. 12, 2020). This list of contributors
9
demonstrates that Science Feedback’s and Health Feedback’s “commitment to objectivity” is a
10
veneer.
11
107.
Science Feedback is the parent company of Health Feedback, which is a member
12
of WHO’s Vaccine Safety Net. About, SCIENCE FEEDBACK, https://sciencefeedback.co/about/
13
(last visited Nov. 12, 2020); Health Feedback, VACCINE SAFETY NET (updated Jan. 31, 2020),
14
https://www.vaccinesafetynet.org/vsn/network/health-feedback (last visited Nov. 12, 2020).
15
Vaccine Safety Net vigorously opposes challenges raised by vaccine safety advocates and
16
others. About Vaccine Safety Net, VACCINE SAFETY NET,
17
https://www.vaccinesafetynet.org/vsn/vaccine-safety-net (last visited Nov. 12, 2020).
18
108.
The WHO’s Vaccine Safety Net membership includes the American Academy of
19
Pediatrics, the CDC, GAVI, Global Advisory Committee on Vaccine Safety (“GACVS”),
20
PATH's Vaccine Resource Library, Vaccinate Your Family, the Vaccine Education Center at
21
the Children's Hospital of Philadelphia, the Immunization Action Coalition, the Sabin Vaccine
22
Institute, and the Vaccine Knowledge Project. VSN Members, VACCINE SAFETY NET,
23
https://www.vaccinesafetynet.org/vsn/network (last visited Nov. 12, 2020).
24
25
b.
109.
Specific Facebook “Fact-Checks” Containing Material Falsity.
On or about June 9, 2019 and thereafter, Facebook electronically blocked CHD
26
from displaying on CHD’s Facebook page a videotape interview of RFK, Jr. discussing a
27
pending lawsuit against Merck & Co. In so doing, Facebook fraudulently misrepresented to all
28
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third-party users of CHD’s Facebook page that the videotape was “False Information Checked
2
by independent fact-checkers.”
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
110.
21
22
23
24
25
26
27
28
111.
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1
2
3
4
5
6
7
8
9
10
11
112.
12
113.
Facebook’s warning label on RFK’s May 15, 2019 videotape critical of Merck,
13
Inc. was materially deceptive, in that the videotape is accurate with respect to its assertions of
14
fact and is otherwise an expression of RFK, Jr.’s opinions, and not “False Information” as
15
Facebook claims. Facebook’s warning label also omits material facts by failing to disclose its
16
advertising-client relationship with Merck, Inc. See T. Staton, The top 10 pharma companies in
17
social media, FIERCEPHARMA, https://www.fiercepharma.com/special-report/top-10-pharma-
18
companies-social-media-0 (last visited Aug. 14, 2020). Merck, Inc. is one of the top 10 social
19
media spenders among pharmaceutical companies and heavily leverages Facebook as an
20
advertising platform.
21
114.
Science Feedback’s “fact-check" is deliberately false and misleading, and tries to
22
silence an important discussion about the influence of pharmaceutical companies on vaccine
23
trial data and outcomes. Science Feedback does not address the crux of the piece – RFK, Jr.’s
24
criticism about fraud at Merck, and how trial data was manipulated. Merck has a well-
25
documented history of fraudulent behavior. It intentionally withheld scientific data about
26
Vioxx’s adverse cardiovascular side effects resulting in settlements and fines above $4.8
27
billion for causing at least 60,000 deaths from sudden heart attacks and over 120,000 serious
28
medical injuries. Defendants were aware, or acted in reckless disregard of, these and other
46
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specific falsities in the Science Feedback opposition “fact-check,” but posted it nonetheless on
2
CHD’s page, in furtherance of their fraudulent scheme.
3
115.
In citing studies that the HPV vaccine has been proven safe and effective,
4
Science Feedback deliberately omits studies that have had a different outcome, and attempts to
5
deflect scrutiny of the pharmaceutical companies, and their manipulation of study outcomes.
6
Richard Horton, the Editor in Chief of the esteemed medical journal “Lancet” was recently
7
quoted as saying the influence wielded by big Pharma to influence publications is "criminal."
8
116.
On or about May 1, 2019 and thereafter, Facebook electronically blocked CHD
9
from displaying photographs of children receiving vaccines with needles on CHD’s Facebook
10
page, and fraudulently misrepresented to CHD that the photographs were “violent,” and
11
purported to have deleted them on that basis. Facebook’s stated reason was a pretext for its
12
actual motive: to inflict damage on CHD.
13
117.
On about May 1, 2019 and thereafter, Facebook posted the text of Wikipedia’s
14
entry about CHD on CHD’s Facebook page and refused to take it down, despite CHD’s
15
objection that the Wikipedia entry is false and misleading. The Wikipedia entry states, inter
16
alia, that “[m]uch of the material put forth by the Organization involves manipulation of
17
information and anti-vaccine propaganda. [. . .] The group has been contributing to vaccine
18
hesitancy in the United States[.]” Defendants were aware, or acted in reckless disregard of,
19
these and other specific falsities in the Science Feedback opposition “fact-check,” but posted it
20
on CHD’s page nonetheless, in furtherance of their fraudulent scheme.
21
118.
Wikipedia’s reliability has been questioned by organizations such as the Hoover
22
Institute, Encyclopedia Britannica and MIT. In Wikipedia: The Dumbing Down of World
23
Knowledge (2010), journalist Edwin Black characterized the content of articles as a mixture of
24
"truth, half-truth, and some falsehoods." Edwin Black, Wikipedia—The Dumbing Down of
25
World Knowledge, HISTORY NEWS NETWORK (April 19, 2010). Archived from the original on
26
September 9, 2016.) In Wisdom? More like Dumbness of the Crowds (2007), Oliver Kamm
27
wrote that articles usually are dominated by the loudest and most persistent editorial voices or
28
by an interest group with an ideological "axe to grind". Oliver Kamm, Wisdom? More like
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dumbness of the crowds, THE TIMES (August 16, 2007). The Wikipedia post smears CHD by
2
asserting that “the organization involves misinformation on vaccines and anti-vaccine
3
propaganda.” If Facebook were truly concerned with reliable information, it would not use
4
Wikipedia as a weapon against CHD on CHD’s own page.
5
119.
On or about May 26, 2020 and thereafter, Facebook and its Lead Stories “fact-
6
checker” blocked CHD from displaying a 45-minute Instagram videochat with RFK, Jr. in
7
which he accurately detailed Dr. Anthony Fauci’s past involvement with vaccine
8
manufacturers, and Facebook fraudulently misrepresented to all third-party users that the
9
interview was “Partly False Information Reviewed by independent fact-checkers.” Instagram is
10
a Facebook-subsidiary photo and video-sharing social networking service.
11
120.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
121.
11
122.
Upon clicking the “See Why” button, this materially-misleading explanation
12
appears: “Independent Fact-Checkers Say This Is Partly False. The information in this post is a
13
mix of true and false claims or it could be misleading or incomplete.” This “partly false”
14
designation appears to concede that the information is at least partly true, while the warning
15
taints the entirety of the material – a highly unfair, overbroad and prejudicial approach. In
16
actuality, RFK Jr.’s interview consisted of completely factual representations and statements of
17
opinion derived from disclosed facts. Defendants were aware, or acted in reckless disregard of,
18
these and other specific falsities in the Lead Stories opposition “fact-check,” but posted it on
19
CHD’s page nonetheless, in furtherance of their fraudulent scheme.
20
123.
On or about May 28, 2020 and thereafter, Facebook blocked CHD from
21
displaying an article by Dr. Brian Hooker and Neil Miller concerning health outcomes in a
22
small-sample study of vaccinated and unvaccinated children and fraudulently misrepresented
23
to all third-party users that the article was “False Information Checked by Independent fact-
24
checkers.”
25
124.
Instead of sharing a normal preview, Facebook marks the content specifically
26
with an overlay grey graphic and prominent warning: “False Information Checked by
27
Independent fact-checkers.” This has the intended effect of reducing both click-throughs to the
28
underlying content and shares. The net effect is to drastically reduce by 95% the traffic to
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Children’s Health Defense website. Entire CNN April 16 Coronavirus Town Hall [Video],
2
supra, https://www.cnn.com/videos/business/2020/04/17/entire-april-16-coronavirus-town-
3
hall-part-5-sot-vpx.cnn.
4
5
6
7
8
9
10
11
12
13
14
15
125.
16
126.
Upon clicking the “See Why” button in the above screenshot, the user is shown
17
the following scroll which gives the notice, “The primary claims in the information are
18
factually inaccurate.”
19
20
21
22
23
24
25
26
27
28
127.
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2
128.
Clicking the Science Feedback preview graphic takes the user to Facebook’s
purportedly “independent,” i.e., objectively-neutral, Science Feedback “fact-check” opposition:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
129.
20
130.
However, this purportedly neutral Science Feedback “fact-check” is itself a
21
misrepresentation of material fact. Dr. Hooker, the author of the original study, disclosed in
22
that study the small size of his study sample, the statistical methods he employed on that small
23
sample, and the results he obtained, all of which is fully consistent with the scientific method.
24
Any reasonable reader of the study would be fully empowered to interpret for himself or
25
herself whether those statistical results have broader applicability, particularly in light of the
26
author’s conclusion that broader studies are warranted. Instead, Facebook holds out its “fact-
27
checker’s” opinion critical of the study methodology as conclusive “fact.” Facebook’s
28
classification of the original study as factually “false” is deceptive and materially misleading.
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131.
Looking beyond the veneer of the “fact-checker” label, one sees a patent effort to
2
deceive rather than to educate the reader. Science feedback’s primary criticism of the Hooker
3
and Miller 2020 study was the use of a convenience sample which refers to a cohort of 2,047
4
children, whose data the authors studied from three separate pediatric practices in the United
5
States. However, convenience samples are used routinely in epidemiology, and also form the
6
basis for the FDA’s approval of drugs and biologics.
7
132.
For example, Science Feedback relies upon as its source, Dr. David Gorski, a
8
blogger who states, “Basically, no matter how you analyze a convenience sample, you can’t
9
generalize it to the larger population.” This is false and misleading. The CDC’s own studies,
10
some of which are cited in the “fact-checking” article, are almost exclusively based on
11
convenience samples. The study presented by Destefano et al. in the 2004 journal Pediatrics on
12
the timing of the MMR vaccine and autism was completed using a convenience sample of
13
approximately 2,400 children in public school districts in Metropolitan Atlanta. This was not a
14
representative sample of the U.S. population as the percentage of African American children in
15
the study was 35.4% compared to that of the U.S. at the time at 16%. Yet, this sole study is the
16
CDC’s basis for denying a causal link between the MMR vaccine and autism in the U.S.
17
Defendants were aware, or acted in reckless disregard of, these and other specific falsities in
18
the Science Feedback opposition “fact-check,” but posted it on CHD’s page nonetheless, in
19
furtherance of their fraudulent scheme.
20
133.
On June 2, 2020 and thereafter, Facebook and Science Feedback, its purportedly
21
“independent fact-checker,” blocked CHD from displaying Dr. Elizabeth Mumper’s personal
22
account of her medical practice experience evaluating children and families over many
23
decades, and fraudulently misrepresented to all third-party users that the post was “False
24
Information Checked by independent fact-checkers.”
25
134.
Instead of sharing a normal preview, Facebook marks the content specifically
26
with an overlay grey graphic and a prominent warning “False Information Checked by
27
independent fact checkers.” As discussed, supra, this has the intended effect of drastically
28
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reducing (by 95%) both click-throughs to the underlying content and shares. Facebook deploys
2
this deceptive tactic in order to greatly reduce user traffic to CHD’s Facebook page or website.
3
4
5
6
7
8
9
10
11
12
13
14
135.
15
136.
Upon clicking the “See Why” button in the above screenshot, the user is shown
16
the following scroll with the notice, “The primary claims in the information are factually
17
inaccurate.” But, the only citation for this notice is Dr. Brian Hooker’s small scale study
18
referenced supra. Dr. Hooker’s study is cited by the article, but it is neither its “primary” claim
19
nor, in any event, is it false.
20
21
22
23
24
25
26
27
28
137.
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138.
Clicking the Science Feedback preview graphic takes the user to a purported
2
“fact-check” and oppositional article to Dr. Hooker’s study, not Dr. Mumper’s study, which it
3
labels “false.”
4
5
6
7
8
9
10
11
12
13
14
15
139.
16
140.
Rather, Dr. Mumper’s article, Mothers of Vaccine Injured Children: Modern Day
17
Cassandras, details its author’s medical practice history evaluating children and families and
18
the systematic denial of the existence of vaccine injury by the public health system. The article
19
contains links to peer reviewed, published research, and makes clear that it is Dr. Mumper’s
20
small-scale analysis and opinion, and that the interpretive value of her fact-based opinions
21
should be viewed accordingly, that is, as an anecdotal but nonetheless significant marker of
22
disparities in health outcomes. That fully-disclosed caveat does not make Dr. Mumper’s article
23
any less relevant as a contribution to the scientific literature. Critically, Dr. Mumper’s article is
24
not factually inaccurate or misleading in any way, nor does Facebook or Science Feedback
25
identify any actual inaccuracies.
26
141.
Dr. Mumper is a board-certified pediatrician with 40 years of experience as a
27
clinical practitioner and pediatric faculty member. She served as Medical Director of the
28
Autism Research Institute for five years and has lectured about medical problems of children
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with chronic disease in 20 countries. The clinical opinion Dr. Mumper expressed in her June 2,
2
2020 article was the product of her extensive clinical research and practice, and her
3
conscientious reading of the medical literature. She has personally asked the CDC, National
4
Institute of Health, and the American Academy of Pediatrics to conduct well-controlled studies
5
comparing vaccinated children to unvaccinated children. In the meantime, and in the absence
6
of any such more definitive work, Dr. Mumper’s small-scale comparative study and her
7
opinions, within their expressed limits, have interpretive value and validity, and play a
8
necessary and critical role in informing her fellow practitioners, patients, and the general
9
public.
10
142.
In short, Facebook has misrepresented as fact to all third-party users that Dr.
11
Mumper’s article is “false,” and that its “primary claims are factually inaccurate,” when that is
12
not the truth. Facebook has also misrepresented as fact to all third-party users that Facebook
13
relied upon an “independent fact-checker,” when the criteria that Science Feedback has
14
actually applied is neither neutral, reliable, nor up-to-date, nor for that matter is Science
15
Feedback “independent” of its contractual payor, Facebook.
16
143.
The CHD content in question illuminates the plausibility of risk in current public
17
health policy, and this information allows third-party users to determine if additional
18
investigation or mitigation is needed on their part. Facebook’s deliberate conflation of open
19
scientific controversy with “vaccine hoax” is a misrepresentation of fact. In short, closing
20
down legitimate debate of matters in open controversy is not a public benefaction, but an abuse
21
of power and something that is completely contrary to science. Defendants were aware, or
22
acted in reckless disregard, of these and other specific falsities in the Science Feedback
23
opposition “fact-check,” but posted it on CHD’s page nonetheless, in furtherance of their
24
fraudulent scheme.
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
144.
19
145.
On or about April 16, 2020 and thereafter, Facebook and Poynter/PolitiFact, its
20
purportedly “independent fact-checker,” blocked CHD from displaying an article concerning a
21
study in the journal Collective-Evolution.com which found a “significantly” greater risk of
22
contracting coronavirus among individuals in the study who received the influenza vaccine,
23
and Facebook and Poynter fraudulently misrepresented to all third-party users that the post was
24
“False Information Checked by independent fact-checkers.” Indeed, the very name “PolitiFact”
25
suggests that the putative “fact-checking” here is more political than scientific.
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
146.
21
147.
Upon clicking-through the “See Why” button, the user is presented with the
22
following purported “fact-check” by PolitiFact, which is a fictitious name registered by
23
Poynter.
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
148.
19
149.
The Poynter/PolitiFact “fact-check” misrepresents and fails to rebut two
20
important aspects of the study: (1) coronaviruses existed in 2017-2018 in forms other than
21
COVID-19; and (2) the study’s conclusion that “vaccine derived virus interference was
22
significantly associated with coronavirus and human metapneumovirus.” Receiving the
23
influenza vaccination may increase the risk of other respiratory viruses, a phenomenon known
24
as viral interference. Defendants were aware, or acted in reckless disregard, of these and other
25
specific falsities in the Poynter/PolitiFact opposition “fact-check,” but posted it on CHD’s page
26
nonetheless, in furtherance of their fraudulent scheme.
27
28
150.
On or about June 18, 2020 and thereafter, Facebook blocked CHD from
displaying an article concerning a sharp decline in infant death rates during the pandemic,
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matching a sharp decline in “well-baby visits” when vaccines are typically given. Facebook
2
and Science Feedback, its purportedly “independent fact-checker,” fraudulently misrepresented
3
to all third-party users that the post was “Partly False Information Checked by independent
4
fact-checkers.”
5
6
7
8
9
10
11
12
13
14
15
16
17
151.
18
152.
19
Upon clicking-through the “See Why” button, the user is presented with a
purportedly factual opposition article by Science Feedback.
20
21
22
23
24
25
26
27
28
153.
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
154.
19
155.
Science Feedback’s assertion that vaccines bear no “association” with sudden
20
infant death is itself a misrepresentation of fact, as it contradicts, inter alia, the potential
21
adverse effect advisements formerly on many vaccine product inserts, customarily
22
administered to infants according to the CDC’s 72-dose recommended vaccine schedule. In
23
2017, the U.S. Court of Federal Claims Special Master ruled there was “preponderant
24
evidence” that vaccines caused or substantially contributed to a 2011 SIDS death. The Special
25
Master also determined that that fatality could not be attributed to non-vaccine related factors.
26
Boatmon v. Sec’y of Health & Human Servs., No. 13-611V, 2017 WL 3432329 (Fed. Cl. Spec.
27
Mstr. July 10, 2017). The U.S. Court of Federal Claims (over one dissent) reversed because the
28
theory was at best “medically plausible,” and did not meet petitioner’s burden of proof.
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Opinion in Boatmon v. Secretary of Health & Human Services, No. 18-2333, JUSTIA, U.S. Law
2
(Fed. Cir. 2019), https://law.justia.com/cases/federal/appellate-courts/cafc/18-2333/18-2333-
3
2019-11-07.html. Nonetheless, CHD’s article advances a potential explanation (expressly
4
stated as such) for a decrease in sudden infant deaths during the pandemic, as to which the
5
public has a right to be informed. There is nothing “false” about CHD’s speculative inquiry
6
into matters of causation in an open scientific controversy. Defendants were aware, or acted in
7
reckless disregard, of these and other specific falsities in the Science Feedback opposition
8
“fact-check,” but posted it on CHD’s page, in furtherance of their fraudulent scheme,
9
nonetheless.
10
156.
On March 4, 2020 CHD posted a link to an article by Dr. Brownstein in
11
Newsmax which examined some of the serious health issues that have surfaced with respect to
12
the HPV vaccines. Facebook darkened the post overlaying the text “False Information Checked
13
by Independent Fact Checkers” with a See Why button. The See Why button led to a screen
14
where Science Feedback asserted the information was false and provided a link to a page for its
15
“fact-checked” article which states that the HPV vaccine has an “excellent safety record.”
16
157.
Dr. Brownstein writes that since the HPV vaccine's first approval, there have
17
been reports linking Gardasil (the trade name for the HPV vaccine) to autoimmune illnesses. In
18
order to see if there was an association, scientists used an epidemiological assessment of the
19
vaccine adverse event reporting system database (VAERS) looking for adverse events with
20
Gardasil from 2006 to 2014, and found several increases in auto-immune adverse events.
21
Among several things, the scientists "found a 4.6-fold increase risk of serious autoimmune
22
adverse events outcomes of gastroenteritis, a 7.6- fold increase lupus, 5.6-fold increase in
23
rheumatoid arthritis." The authors of the study concluded, "Confirmatory epidemiological
24
studies in other databases should be undertaken and long-term clinical consequences of HPV-
25
linked [serious autoimmune events] should be examined."
26
158.
Science Feedback does not address two facts which undermine its opinion:
27
(1) auto-immune medical conditions are found in the HPV vaccine warning insert itself (see
28
Gardasil, Highlights of Prescribing Information, FDA,
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https://www.fda.gov/files/vaccines,%20blood%20&%20biologics/published/Package-Insert---
2
Gardasil.pdf) and (2) the study cited by Dr. Brownstein found that there were increased
3
autoimmune adverse event findings in data from VAERS which warranted further study.
4
Instead, Science Feedback labels CHD's post "false fact" based on its own bare bones opinion
5
that no "association" (a term which Science Feedback doesn't define) between the HPV
6
vaccine and any of the medical conditions mentioned in this claim has been found.
7
159.
Defendants were aware, or acted in reckless disregard, of these and other specific
8
falsities in the Science Feedback opposition “fact-check,” but posted it on CHD’s page
9
nonetheless, in furtherance of their fraudulent scheme.
10
160.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
161.
26
162.
On April 9, 2020, CHD posted an RFK, Jr. editorial entitled Gates’s Globalist
27
Vaccine Agenda, a Win-Win for Pharma and Mandatory Vaccination, which expressed RFK,
28
Jr.’s criticisms of Bill Gates’ involvement with vaccine development and deployment in the
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third world. Facebook superimposed a fact-check claiming “False Information” with a link to
2
Correctiv, a German fact checking website with a fact-check written in German. On June 13,
3
2020, CHD attempted to post the editorial again. It received a link to the same German
4
language “fact-check” with a warning that “pages and websites that repeatedly publish false
5
news will see their overall distribution reduced and restricted in other ways.” Out of concern
6
that their Facebook page would be taken down entirely, CHD did not attempt to repost the
7
article.
8
163.
Fact-checking an English language editorial post with a German language post as
9
the basis for threatening punitive actions is arbitrary and capricious. In doing so, Facebook
10
showed that its interest lies in labeling CHD opinion articles as “false fact,” and censoring
11
CHD on that false basis. Defendants were aware, or acted in reckless disregard, of these and
12
other specific falsities in the Correctiv German language opposition “fact-check,” but posted it
13
on CHD’s page nonetheless, in furtherance of their fraudulent scheme.
14
164.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
165.
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
166.
16
167.
On September 28th, 2020, CHD attempted to post a link to an article about
17
breastfeeding and coronavirus, adding the header: New research suggests there may be yet
18
another health benefit associated with breastfeeding. Facebook blocked this post and stated
19
that the article went against Community Standards. They wrote, “We have these standards
20
because misinformation that could cause physical harm can make some people feel unsafe on
21
Facebook.”
22
168.
At no point did Facebook identify any misinformation in the article or indicate
23
what harm it threatened to cause. The article discussed research in Beijing on the effect of
24
human breast milk on cells exposed to the Sars-CoV-2 virus in which most living virus strains
25
were killed by the milk. That this article could actually contravene any genuine set of
26
“Community Standards” is difficult to fathom considering that the WHO official stance is that
27
mothers should continue to breastfeed even if they have Covid-19. Given the historical
28
suppression of the health benefits of breastfeeding influenced by financially interested parties
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such as the infant formula industry, this censorship is particularly outrageous. Out of concern
2
that their Facebook page would be taken down entirely, CHD did not attempt to repost the
3
article. Defendants were aware, or acted in reckless disregard, of these and other specific
4
falsities in their “Community Standards” notice, but posted it on CHD’s page nonetheless, in
5
furtherance of their fraudulent scheme.
6
7
8
9
10
11
12
13
14
15
16
17
169.
18
170.
On March 3, 2020, CHD posted a link to an article from The Epoch Times
19
webpage regarding the results of a federal lawsuit by ICAN. Stipulated Order Proving CDC
20
Has No Studies To Support Claim That Vaccines Given in First 6 Months of Life Do Not Cause
21
Autism, ICAN (Mar. 5, 2020), https://www.icandecide.org/ican_lawsuits/stipulated-order-
22
proving-cdc-has-no-studies-to-support-claim-that-vaccines-given-in-first-6-months-of-life-do-
23
not-cause-autism/.)
24
171.
The lawsuit requested that the CDC produce all studies for several specific
25
vaccines on the CDC-schedule which prove that such vaccines do not cause autism. CDC
26
produced 20 studies, but only one of them pertained to the vaccines for which ICAN requested
27
information, and does not even support that conclusion.
28
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172.
This discovery was a watershed moment. Yet Science Feedback’s “fact-check”
2
misrepresents the facts by repeating the trope that “numerous studies show that vaccines don’t
3
cause autism” — even though this statement clearly cannot reasonably be considered valid in
4
light of the CDC’s production in the ICAN lawsuit. Indeed, at a minimum, the phrase,
5
“vaccines don’t cause autism,” cannot include all vaccines in the CDC’s 72-childhood vaccine
6
dose schedule (16 separate vaccines), as there are simply no studies to address, much less
7
verify, that claim for the entire schedule. Science Feedback’s “fact-check” is deceptive and
8
misleading. Defendants were aware, or acted in reckless disregard of, these and other specific
9
falsities in the Science Feedback opposition “fact-check,” but posted it on CHD’s page
10
nonetheless, in furtherance of their fraudulent scheme.
11
12
13
14
15
16
17
18
19
20
21
22
23
173.
24
174.
On September 2, 2020, CHD posted an article about University of California
25
campuses requiring online students to get a flu shot and CHD’s decision to sue. Facebook
26
darkened the post and superimposed text that stated, “This post mentions COVID-19. For more
27
info and resources, go to the COVID-19 information center,” and included a link to the center.
28
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175.
The darkened screen with text overlay creates the impression that the information
2
CHD is posting is not reliable or trustworthy, and intentionally diverts and discourages users
3
from clicking through to read it. Defendants were aware, or acted in reckless disregard of, this
4
specific imputation of falsity in its grey overlay and warning label, but posted it on CHD’s
5
page nonetheless, in furtherance of their fraudulent scheme.
6
176.
In actuality, the CHD article cites several studies that show an increase in
7
respiratory infections associated with the flu vaccine. Given the recent mandates around the
8
flu vaccine, making this post less accessible goes against public health. The public has a right
9
to know about these studies. That is especially so since a Cochrane Vaccines Field analysis,
10
which evaluated studies measuring the benefits of flu vaccination and was published in the
11
BMJ, concluded: “The large gap between policy and what the data tell us (when rigorously
12
assembled and evaluated) is surprising .... Reasons for the current gap between policy and
13
evidence are unclear, but given the huge resources involved, a re-evaluation should be urgently
14
undertaken.” Tom Jefferson, Influenza vaccination: policy versus evidence, BMJ, v.333, p. 912
15
(Oct. 28, 2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1626345/.)
16
17
18
19
20
21
22
23
24
25
26
27
28
177.
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178.
On September 14, 2020, Facebook and Science Feedback labeled CHD’s post on
2
CoVID-19 Testing PCR by Bose Ravenel, M.D., F.A.A.P as “False Information Found on
3
Children’s Health Defense.” The “fact-check” placed over the post leads to an opposition
4
article by Science Feedback that claims that a “misinterpreted New York Times report leads to
5
a false claim that the number of COVID-19 cases in the US is inflated up to 90%.” This “fact-
6
check” is deceptive because, while the New York Times article is quoted in Dr. Ravenel’s
7
piece, it is merely one of several articles referenced by the author, and is not “misinterpreted”
8
at all. Defendants were aware, or acted in reckless disregard of, these and other specific
9
falsities in the Science Feedback opposition “fact-check,” but posted it on CHD’s page
10
nonetheless, in furtherance of their fraudulent scheme.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
179.
27
180.
28
On or about October 10, 2019, CHD posted a link to an editorial by RFK, Jr.
about vaccine injuries. The article referenced studies such as the 2010 U.S. Health and Human
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Services (HHS) pilot study by the Federal Agency for Health Research Quality (AHRQ) that
2
looked at the prevalence of vaccine injuries reported to VAERS. R. Lazarus et al., Grant Final
3
Report: Electronic Support for Public Health – Vaccine Adverse Event Reporting System
4
(ESP:VAERS), https://digital.ahrq.gov/sites/default/files/docs/publication/r18hs017045-
5
lazarus-final-report-2011.pdf.
6
181.
Science Feedback’s false and misleading “fact-check” asserts that the data
7
captured from VAERS does not “prove” vaccines caused any adverse event. Yet, the data that
8
RFK, Jr. references (2.6% of injuries, or 1 in 39) is taken directly from the study. Defendants
9
were aware, or acted in reckless disregard, of these and other specific falsities in the Science
10
Feedback opposition “fact-check,” but posted it on CHD’s page nonetheless, in furtherance of
11
their fraudulent scheme. Currently, the post is no longer visible on CHD’s Facebook page and
12
appears to have been taken down by Facebook.
13
14
15
16
17
18
19
20
21
22
182.
23
183.
On April 16, 2020, CHD posted a link to an editorial in the journal Jewish Voice,
24
stating that “Nobel Prize Winner Dr. Luc Montagnier has unique insights regarding COVID-
25
19.” Facebook labeled the post “False Information.” The article reported that Dr. Luc
26
Montagnier’s work showed that the “coronavirus genome contained sequences of another
27
virus, … the HIV virus (AIDS virus), but he was forced to withdraw these findings because
28
“the pressure from the mainstream was too great.” Science Feedback’s “fact-check” is an
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attempt to censor a debate on the open question of the origins of COVID-19. Defendants were
2
aware, or acted in reckless disregard, of these and other specific falsities in the Science
3
Feedback opposition “fact-check,” but posted it on CHD’s page nonetheless, in furtherance of
4
their fraudulent scheme. The post can no longer be found on the CHD Facebook page and
5
appears to have been removed.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
184.
20
185.
On September 3, 2020 and thereafter, CHD posted a link to an article on their
21
website about oral polio vaccines causing polio outbreaks in Africa. Facebook posted a grey
22
overlay with the flag that CHD’s post was “fact-checked” by Science Feedback, with a link to
23
a Science Feedback opposition article which characterizes yet another article in the Journal,
24
21st Century Wire as “Inaccurate and Lacks Content.” Science Feedback’s “fact-check” is
25
false and misleading in that it does not specifically address CHD’s article. Moreover, Science
26
Feedback’s key point — that the oral polio vaccine contains a live but weakened form of the
27
poliovirus which does not cause infection — is patently false. The CHD article cites several
28
cases and studies, and quotes health officials who flatly state the opposite. Defendants were
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aware, or acted in reckless disregard, of these and other specific falsities in the Science
2
Feedback opposition “fact-check,” but posted it on CHD’s page, in furtherance of their
3
fraudulent scheme, nonetheless.
4
5
6
7
8
9
10
11
12
13
14
15
186.
16
17
18
19
20
21
22
23
24
25
26
27
28
187.
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188.
On September, 20, 2020, Facebook labeled an editorial tribute to Ruth Bader
2
Ginsburg (“RBG”) as “Missing Context” and added a USA Today “fact-check” notice to the
3
post taking issue with the term, “Medical Freedom.” In CHD’s editorial post entitled RIP RBG
4
– Medical Freedom and Environmental Champion, RFK, Jr. writes that “Justice Ginsburg was
5
a champion for safe vaccines” and lists her opinions and dissents which support his assertion.
6
This application of “fact-checking” to editorial opinion is false and misleading. RFK, Jr.’s
7
opinion is not “missing context” at all. RFK, Jr. also hails RBG as an “Environmental
8
Champion,” and lists her written opinions which support why he believes this to be true – i.e.,
9
the same sort of evidence of RBG’s pedigree as he uses to support his “Medical Freedom
10
Champion” assertion. Defendants were aware, or acted in reckless disregard of, these and other
11
specific falsities in the Science Feedback opposition “fact-check,” but posted it on CHD’s page
12
nonetheless, in furtherance of their fraudulent scheme.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
189.
27
190.
28
On or about May 29, 2020, CHD attempted to “boost” (i.e., pay Facebook for
wider distribution) of an article entitled Electromagnetism and Human Health: WiFi and Cell
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Phones. CHD received a notification from Facebook that the article had reached 5,014 users,
2
and that the boost button was “unavailable.” This is the only open instance — although there
3
have been many more surreptitious ones — in which Facebook either constrained, demoted or
4
shadowbanned CHD’s 5G content, making it available only to CHD’s principals or a highly-
5
limited number of CHD members, while misrepresenting to CHD and to its members that the
6
content is more widely-available, and can be redistributed by them across Facebook’s platform.
7
Over the past year or longer, the numbers of likes/shares of CHD’s 5G posts have decreased
8
significantly from their numbers before Facebook began its fraudulent scheme. Facebook’s
9
fundamental duplicity here is found both in its use of surreptitious methods and in its
10
pretextual reasons for banning or demoting content which threatens its profit interests in global
11
5G deployment.
12
13
14
15
16
17
18
19
20
21
22
23
24
191.
5.
25
26
192.
Disabling CHD’s Fundraising and Ads.
On or about May 2, 2019 and thereafter, Facebook permanently deactivated the
27
fundraising function, or “donate” button, on CHD’s Facebook page, in disregard of CHD’s
28
501(c)(3) non-profit status. In its termination email to CHD, Facebook’s “Charitable Giving
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Team” fraudulently misrepresented that it took this action because CHD’s page was “in
2
violation of [its] fundraising terms and conditions.” Combatting Vaccine Misinformation,
3
supra, https://about.fb.com/news/2019/03/combatting-vaccine-misinformation/.
4
193.
Also on or about May 2, 2019 and thereafter, Facebook blocked CHD and RFK,
5
Jr., and subsequently Prizeo, their third-party advertising agency, from purchasing online ads
6
to promote CHD, including most recently ads promoting its Summer 2020 fundraising drive. In
7
its April 20, 2020 electronic notice rejecting the attempted transactions on behalf of CHD and
8
RFK, Jr., Facebook fraudulently misrepresented to Prizeo that it took this action because CHD
9
has “repeatedly posted content that has been disputed by third-party fact-checkers [for]
10
promoting false content.”
11
12
6.
194.
Disabling CHD’s Right to “Appeal” These Actions.
On or about May 1, 2019, Facebook permanently disabled the “dispute” function
13
on CHD’s account so that neither CHD, RFK, Jr., nor Prizeo could challenge Facebook’s
14
actions through direct submission, and Facebook has ignored CHD’s written requests over the
15
past eighteen months that both its content and full functionality be restored to CHD’s page.
16
17
7.
195.
Concealment of the Overall Scheme.
On or about May 1, 2019, for pretextual reasons alleged infra, Facebook began
18
covertly to demote and/or ban content (“shadow-ban”) that CHD posted to its Facebook page,
19
both vaccine- and 5G-related, effectively limiting its visibility and reach, and secondarily
20
reducing ad revenue to CHD. Facebook owns a patent on social media shadowbanning. See
21
United States Patent No. 10,356,024, Kanter et al. (Moderating content in an online forum),
22
USPTO Patent Full-Text and Image Database, UNITED STATES PATENT AND TRADEMARK
23
OFFICE (Jul 16, 2019), http://patft.uspto.gov/netacgi/nph-
24
Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/search-
25
bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024 (last visited Aug.
26
15, 2020). The patent describes the mechanism by which shadowbanning is accomplished: In
27
one embodiment, the social networking system blocks banned comments by analyzing the text
28
of the comments. For example, if a comment includes a profane word, as provided in a list of
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banned words, the social networking system will not display the comment to other users of the
2
social networking system.
3
196.
Additionally, in one embodiment, Facebook also performs a “sentiment analysis”
4
to identify whether a comment includes sentiment that is banned under Facebook’s community
5
standards, e.g., derogatory racial epithets. Finally, Facebook’s patent permits it to train a
6
machine learning classifier to block comments based on Facebook content moderators’ actions
7
of manually deleting comments or unblocking comments in the online forum. In one
8
embodiment, the blocked comments are not displayed to the wider community of Facebook
9
users. However, the blocked comments are displayed to the commenting user and his or her
10
friends within the social networking system. As such, Facebook’s software creates a
11
simulacrum in which the “offending” user — here CHD — is not aware that their comment or
12
content is not displayed to other users of the forum. Since May 2019, Facebook has utilized
13
this deceptive scheme in order to covertly limit or block CHD’s content while misrepresenting
14
the visibility and reach of that content to CHD itself, and misrepresenting the totality of CHD’s
15
content to all third-party users.
16
197.
Moreover, a “whistleblower” recently disclosed Facebook internal documents,
17
which reveal the extent of Facebook’s sophisticated designs aimed at user behavior
18
modification in order to limit the spread of “undesirable” information. Facebook boasted
19
internally that it has employed these methods based on its psychological research
20
demonstrating their efficacy because nearly all third-party users (95%) will be dissuaded from
21
clicking through to the original content by the very design and trade dress elements of
22
Facebook’s warnings. This Facebook design document shows a technical discussion of such
23
mechanisms:
24
25
26
27
28
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2
3
4
5
6
7
8
9
10
11
12
13
14
198.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
199.
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200.
At an April 17, 2020, CNN “Global Town Hall,” Zuckerberg boasted that “we
2
work with independent fact-checkers [] and warning labels work. We know that because 95%
3
of the time when someone sees a piece of information that has a fact-check on it, they don’t
4
click through and consume that information.” Entire CNN April 16 coronavirus town hall,
5
supra, https://www.cnn.com/videos/business/2020/04/17/entire-april-16-coronavirus-town-
6
hall-part-5-sot-vpx.cnn.
7
201.
Indeed, Facebook has used “A/B testing” (testing users’ response to variants) to
8
achieve its intended psychological effect on user behavior. Essentially, similar demographic
9
test-groups are shown two (or more) different behavior modification mechanisms, and the most
10
effective mechanism is chosen based on statistical results in terms of which variant achieves
11
the desired user behavior. About A/B Testing, Business Help Center, FACEBOOK FOR BUSINESS,
12
https://www.facebook.com/business/help/1738164643098669?id=445653312788501 (last
13
visited Aug. 14, 2020).
14
202.
The “whistleblower” also described Facebook’s use of “troll scores” that were
15
assigned to accounts and used to assess what punitive actions it would take against the
16
accountholder. There is no accountability or accountholder recourse, since Facebook compiles
17
its punitive “troll scoring” without the holder’s knowledge. Anonymous – Facebook, PROJECT
18
VERITAS (Apr. 6, 2020), https://www.projectveritas.com/news/anonymous-facebook/.
19
203.
The “whistleblower” also revealed Facebook’s use of a “deboosting” score,
20
which it uses to “deboost” content produced by the accountholder’s page. Facebook deployed a
21
similar, if not the same algorithm, to limit the visibility and reach of CHD content. As
22
explained by the whistleblower and screenshots obtained by Project Veritas, the
23
ActionDeboostLiveDistribution tag is designed to “deboost” content produced by the pages it
24
is attached to, specifically suppressing the distribution of livestreams from that page. A current
25
Facebook employee confirmed to Project Veritas that the code could reduce a “video’s
26
visibility in news feeds, remove sharing features, and disable interactive notifications.”
27
28
204.
The “whistleblower’s” account elaborates upon newspaper and magazine articles
about internal and top-down biases in Facebook’s content control processes. A Wired
77
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magazine article reported on Facebook’s use of a custom algorithm — “Click Gap” —
2
specifically to limit the spread of whatever Facebook terms “fake news.” Facebook deployed a
3
similar, if not the same algorithm, to damage CHD, by covertly limiting the visibility and reach
4
of its content. An April 18, 2019 Wired article explains: “Click-Gap, which Facebook is
5
launching globally today, is the company’s attempt to limit the spread of websites that are
6
disproportionately popular on Facebook compared with the rest of the web. If Facebook finds
7
that tons of links to a certain website are appearing on Facebook, but few websites on the
8
broader web are linking to that site, Facebook will use that signal, among others, to limit the
9
website’s reach.” Facebook Is Changing News Feed (Again) to Stop Fake News, WIRED (Apr.
10
10, 2019), https://www.wired.com/story/facebook-click-gap-news-feed-changes/.
11
205.
A CNET article reported that Facebook planned to use “updated machine
12
learning” to detect more potential “hoaxes” and send them to third-party “fact-checkers.”
13
Facebook used the same or similar machine learning systems to detect and flag CHD content
14
for sending to Facebook’s “fact-checker” affiliates. R. Cheng, Facebook will use machine
15
learning to fight fake news, CNET (Aug. 3, 2017), https://www.cnet.com/news/facebook-will-
16
use-machine-learning-to-fight-fake-news/.
17
206.
The Doe defendants comprise, inter alia, members of an enterprise with or
18
within Facebook working directly to label, suppress, and censor vaccine and 5G-network
19
related content on CHD’s Facebook page. The enterprise operates under the direct supervision
20
and control of Facebook’s corporate leadership and Zuckerberg. It includes individual
21
Facebook officers or employees (known only to Facebook) responsible for key design elements
22
that enable widespread AI-driven “fact-check” content suppression and manipulation. The
23
enterprise manipulates technical processes to “shadow ban” CHD, i.e., deceive Plaintiff as to
24
the reach and visibility of content on its Facebook page, and prevent its content from being
25
disseminated. The enterprise also exploits internal marketing and psychometric data to
26
“sandbox” users, i.e., selectively hide content from users based on their psychological profile,
27
and ward off the possibility that alternative content may influence their views. “Sandbox” is an
28
78
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1
apt term for isolating users in an echo chamber of like-minded viewpoints where existing
2
views are reinforced, and alternative or opposing ideas are not considered.
3
207.
Facebook shows CHD’s vaccine- and 5G network-safety content to CHD’s
4
already-“decided” users, but Facebook does not show it to any other “undecided” or “opposed”
5
users. Thus, Facebook seeks to rigidify users’ positions on matters of public concern, and
6
foreclose public debate, or any possibility of the societal “ultimate good [] reached by free
7
trade in ideas” (see Abrams v. United States, 250 U.S. at 630 (Holmes, J., dissenting)), while
8
concealing its methods and effects. Facebook, with the government’s assistance, blocks content
9
critical of the CDC and WHO. The First Amendment protects against this new “privatized”
10
form of governmental censorship. This is also a classic method of fraud concealment: if
11
Plaintiff does not know what defendants are telling or showing third parties, Plaintiff is less
12
likely to sue. See, e.g., Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (“suppose
13
an enterprise that wants to get rid of rival businesses mails misrepresentations about them to
14
their customers and suppliers, but not to the rivals themselves”).
15
208.
On December 27, 2018, New York Times reporter Max Fisher wrote that, based
16
on his review of Facebook internal documents, Facebook’s “closely-held rules” for moderating
17
content on its website had “numerous gaps, biases and outright errors.” Fisher characterized
18
those errors as a byproduct of the over- and under-inclusive nature of binary rules when
19
applied to “highly complex issues,” plus the highly time-sensitive (“eight to 10 seconds per
20
post”) workload constraint Facebook puts on the decisions at issue. He quoted Facebook
21
officer Bickert as saying, “we have billions of posts every day, we’re identifying more and
22
more potential violations using our technical systems. At that scale, even if you’re 99 percent
23
accurate, you’re going to have a lot of mistakes” (emphasis added). (Here, Facebook’s
24
wrongdoing is deliberate, a form of decision-making which Bickert’s reference to “mistakes”
25
elides.) Fisher reported that, “By telling moderators to follow the rules blindly, Facebook
26
hopes to guard against bias and to enforce consistency.” But, “Facebook has little visibility into
27
the giant outsourcing companies, which largely police themselves, and has at times struggled
28
to control them.” M. Fisher, Inside Facebook's Secret Rulebook for Global Political Speech,
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1
NEW YORK TIMES (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/world/facebook-
2
moderators.html.
3
209.
Fisher further reported that, “[t]hough Facebook says its focus is protecting
4
users, the documents suggest that other concerns come into play. [For example, Pakistan-
5
related] guidelines warn moderators against creating a “PR fire” by taking any action that
6
could “have a negative impact on Facebook’s reputation or even put the company at legal risk.
7
[. . .] And its decisions often skew in favor of governments, which can fine or regulate
8
Facebook.” Id.
9
210.
More recently, on May 16, 2020, New York Times reporters Mike Isaac, Sheera
10
Frenkel and Cecilia Kang wrote in their article Now More Than Ever, Facebook Is a ‘Mark
11
Zuckerberg Production’ that:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[A]t Facebook, for more than a decade, Mark Zuckerberg was a
product guy’s product guy. In practice, this meant [. . .] he was
comfortable delegating in areas that interested him less keenly —
including [. . .] the realm of Facebook policy around what kind of
speech was and was not permitted. Those subjects fell into a
specific category: Too important to ignore, but not exactly what a
young billionaire wants to spend all of his time on.
[After the 2016 election] Mr. Zuckerberg resolved to take control
of the global superpower in which he already dominated the voting.
[In July 2018,] Mr. Zuckerberg called a meeting with his top
lieutenants. [. . .] Mr. Zuckerberg said he would be making more
decisions on his own, based on his instincts and vision for the
company. [. . . ] Mr. Zuckerberg also began to participate more
directly in meetings that had previously been Ms. Sandberg’s
domain — from the nitty-gritty of taking down disinformation
campaigns, to winding philosophical discussions on how Facebook
ought to handle political ads. [. . .] Other board disagreements,
specifically around political advertising and the spread of
misinformation, always ended with Mr. Zuckerberg’s point of view
winning out. [. . .] To replace [departing board members], Mr.
Zuckerberg picked [ . . .] Peggy Alford, the former chief financial
officer of the Chan Zuckerberg Initiative.
Mike Isaac, Sheera Frenkel & Cecilia Kang, Now More Than Ever, Facebook Is a ‘Mark
80
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1
Zuckerberg Production,’ NEW YORK TIMES (May 16, 2020),
2
https://www.nytimes.com/2020/05/16/technology/zuckerberg-facebook-coronavirus.html
3
(emphases added).
4
211.
Facebook contracted with Science Feedback, a French organization which
5
Facebook funds, to “fact-check” CHD’s content, and directed Science Feedback to deploy
6
Facebook’s circular WHO and CDC definitions of “vaccine misinformation.” Science
7
Feedback is wholly dependent upon Facebook, both financially and editorially. On information
8
and belief, neither Facebook nor Science Feedback makes any genuinely independent effort to
9
check the veracity of the censored or labeled CHD content.
10
11
212.
Instead, Facebook created a classification system that provides Science Feedback
with a limited set of nine pre-populated classifications to apply to a posting:
12
• False
13
• Partly False
14
• True
15
• False Headline
16
• Not Eligible
17
• Satire
18
• Opinion
19
• Prank Generator
20
• Not Related
21
Fact-Checking on Facebook, Business Help Center, FACEBOOK FOR BUSINESS,
22
https://www.facebook.com/help/publisher/182222309230722 (last visited Aug. 14, 2020).
23
213.
Apparently, if Science Feedback decides that an article is not “false,” “partly
24
false,” or “false headline” but falls into any of the other six classifications (i.e., True, Not
25
Eligible, Satire, Opinion, Prank Generator, and Not Related), Facebook does not display (or
26
does not prominently display) a link to the “See Why” window or to Science Feedback’s
27
oppositional article.
28
81
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1
214.
Under this arrangement, Facebook pays Science Feedback to classify content,
2
and Facebook flags content for Science Feedback to evaluate and classify as part of their
3
partnership. Science Feedback is paid by Facebook to find false stories, and here willfully
4
marked Plaintiff’s content as “false” or “partly false” in order to generate traffic to its website
5
through the warning and link, and to further its contractual partnership with Facebook. The
6
“fact-checking” system Facebook created encourages this type of mislabeling. The Science
7
Feedback fact-checkers have an obvious incentive to categorize a post as “False” rather than an
8
accurate but less damaging classification of “Opinion,” because that is the only way Facebook
9
will insert the clear warning with a prominent link to Science Feedback’s oppositional article.
10
Facebook deceives its users by materially misrepresenting that its “fact-checkers” are
11
“independent,” contractually or editorially. Significantly, the arrangement also permits
12
Facebook and Science Feedback to create categorical exemptions from “fact-checking” where
13
it suits Zuckerberg’s political or other biases, e.g., the “opinion” exemption for climate science
14
deniers. Emily Atkin, Facebook creates fact-checking exemption for climate deniers, supra,
15
https://heated.world/p/facebook-creates-fact-checking-exemption.
16
215.
As to each of the CHD and RFK, Jr. articles and video posts, which Facebook
17
and Science Feedback, or Poynter/PolitiFact labeled “False Information” or “Partly False
18
Information,” see supra, Science Feedback and Poynter/PolitiFact’s opposition articles show,
19
at most, that the specific matter asserted was the opinion of its authors on fully-disclosed
20
limited facts, not that it was a “false” or “partly false” statements of fact. Nonetheless,
21
Facebook directed its surrogate “fact-checkers” to label these posts “false” or “partly false,” as
22
a pretext for Facebook to publish the grey overlay with those “false” or “partly false
23
information” labels over CHD’s posts, and to publish links to their opposition content. The
24
“fact-checker” surrogates complied because it was in their financial interests to do so. Hence,
25
Science Feedback designated the articles and videos as “False” or “Partly False,” not
26
“Opinion.” Facebook then proceeded to gray out the articles and videos and placed its
27
warnings over them. By using Facebook’s pre-populated options other than “opinion,” to
28
mislabel the articles and videos, Science Feedback and Facebook intentionally tell the public
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1
that Plaintiff is presenting false information, when they know that the information presented is,
2
at most, opinion and not false fact.
3
4
8.
216.
Continuing Injuries to CHD.
CHD’s primary source of revenue derives from membership dues and donations
5
that CHD solicits on its website, through PayPal and Stripe, and formerly on its Facebook
6
page. In addition to that monetary interest, attracting visitors to the CHD Facebook page, and
7
through it to CHD’s website, enables CHD and RFK, Jr., their authors, and readers to associate
8
and to engage in speech on matters of mutual concern. Prior to March 2019, CHD’s Facebook
9
page content generated significant third-party user traffic to CHD’s website, and significant
10
membership fees and donations to CHD.
11
217.
From January to May 2019, CHD generated $41,241 in user donations from its
12
Facebook page. In May 2019 alone, CHD received $24,872, until Facebook deactivated CHD’s
13
donate function. CHD has not received any further donation revenue through Facebook.
14
218.
Facebook has exclusive possession, custody, and control of evidence to assess
15
the full extent of the damages to Plaintiff’s business and property interests which defendants’
16
deceptions have proximately caused, e.g.: (1) how many visitors to CHD’s page instead click
17
through to “go to CDC.gov”; (2) how many are diverted from CHD’s content due to “fact-
18
check” labels; (3) how much has Facebook-wide traffic of such content decreased; (4) what are
19
the daily click-through, cost-per-click, conversion, and cost-per-action rates for visitors to
20
Plaintiff’s Facebook page — all of which is information Facebook compiles in the ordinary
21
course of its business operations of gathering, manipulating, and marketing psychometric and
22
other data on users. Plaintiff lacks access to these missing pieces of the puzzle.
23
219.
As a result of defendants’ actions, third-party user visits from CHD’s Facebook
24
page to CHD’s website declined significantly since March 2019, while visits to CHD’s website
25
grew from other interactive computer services (e.g., Bing and DuckDuckGo) that have not
26
implemented Facebook’s smear campaign. CHD’s Twitter account has grown by 80,000
27
followers during the past twelve months, while its Facebook account has grown by only 20,000
28
followers, despite the smear campaign.
83
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1
220.
Additionally, CHD’s trade reputation and “goodwill” are traditional property
2
rights whose value defendants have diminished through their fraudulent misconduct. CHD’s
3
reputation for accurate and timely content is a source of its goodwill, and paramount to its
4
operations and success. “[A] man’s right to the continued enjoyment of his trade reputation and
5
the good will that flows from it, free from unwarranted interference by others, is a property
6
right[.]” Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413 (1916). Defendants targeted
7
CHD, and the injuries to CHD’s organizational trade and reputation were both foreseeable and
8
intended. Bridge v. Phoenix Bond & Indem. Co., 553 U.S. at 658.
9
221.
CHD is the most direct victim of Facebook’s “vaccine misinformation” smear
10
campaign, and is best positioned to sue; its financial losses are provable, and far more than a
11
“bit part in the scheme” (Kelly v. United States, 140 S. Ct. 1565, 1573 (2020)), and there is no
12
risk of duplicative recoveries because no one else can recover CHD’s losses. At the same time,
13
Facebook controls the proof of that portion of claimed damages attributable to the defendants'
14
unlawful conduct. See Lexmark International, Inc. v. Static Control Components, Inc., 572
15
U.S. 118, 134 S. Ct. 1377, 1393 (2014) (“When a defendant harms a Plaintiff's reputation by
16
casting aspersions on its business, the Plaintiff's injury flows directly from the audience's belief
17
in the disparaging statements….”).
18
D.
Material Questions of Vaccine Safety.
19
222.
By 1986, the “litigation costs associated with claims of damage from vaccines
20
had forced several companies to end their vaccine research and development programs as well
21
as to stop producing already-licensed vaccines.” Institute of Medicine, Adverse Events
22
Associated with Childhood Vaccines: Evidence Bearing on Causality, at 2 (1994). In response,
23
Congress enacted the National Childhood Vaccine Injury Act, codified at 42 U.S.C. §§ 300aa-
24
1 through 300aa-34 (the “1986 Act”), which virtually eliminated economic liability for
25
pharmaceutical companies for injuries caused by their vaccines. 42 U.S.C. § 300aa-11 (“No
26
person may bring a civil action for damages in the amount greater than $1,000 or in an
27
unspecified amount against a vaccine administrator or manufacturer in a State or Federal court
28
for damages arising from a vaccine-related injury or death.”); Bruesewitz v. Wyeth LLC, 562
84
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1
U.S. 223, 243 (2011) (“we hold that the National Childhood Vaccine Injury Act preempts all
2
design-defect claims against vaccine manufacturers brought by Plaintiffs who seek
3
compensation for injury or death caused by vaccine side effects”); cf. Davis v. Wyeth
4
Laboratories, 399 F.2d 121, 129-30 (9th Cir. 1968) (recipient of polio vaccine entitled to make
5
a “true choice judgment” whether to be inoculated with Sabin III vaccine, an “unavoidably
6
unsafe” product).
7
223.
By granting pharmaceutical companies immunity from actual or potential
8
liability from injuries caused by vaccines, Congress eliminated the market forces relied upon to
9
assure the safety of these typically mandatory consumer products. Recognizing that it
10
eliminated the financial incentive for pharmaceutical companies to assure the safety of their
11
vaccine products, Congress placed the responsibility for vaccine safety in the hands of the
12
Department of Health and Human Services (“HHS”) and its agencies, most pertinently here,
13
the CDC. 42 U.S.C. § 300aa-27(a) (“Mandate for safer childhood vaccines”) provides, inter
14
alia, that the Secretary of HHS “(1) shall promote the development of childhood vaccines that
15
result in fewer and less serious adverse reactions [. . .], and (2) make or assure improvements
16
in, and otherwise use the authorities of the Secretary with respect to . . . research on vaccines,
17
in order to reduce the risks of adverse reactions to vaccines.”
18
224.
In executing their statutory duties, HHS and the CDC must avoid conflicts of
19
interest with pharmaceutical companies because these agencies are responsible for promoting
20
safe vaccines, and for defending against claims of vaccine injuries. Indeed, the CDC is the
21
single largest purchaser and distributor of vaccines (nearly forty percent of the total
22
administered) in the United States. In 2019 alone, the CDC entered into contracts to purchase
23
and distribute up to $5.1 billion of the three leading manufacturers’ vaccine products.
24
See 2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS,
25
https://www.governmentcontracts.us/government-contracts/opportunity-
26
details/NBD00159991194385117.htm (last visited Aug. 15, 2020); Indefinite Delivery
27
Contract 75D30119D04518, Federal Contract IDV Award, GOVTRIBE (Jun. 29, 2020),
28
https://govtribe.com/award/federal-idv-award/indefinite-delivery-contract-75d30119d04518;
85
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1
2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS AND BIDS,
2
https://www.govcb.com/government-bids/vaccines-for-children-
3
NBD00159022703927119.htm (last visited Aug. 15, 2020).
4
225.
And, while HHS is obliged to report to Congress every two years on the actions
5
HHS has taken to make and assure improvements in the licensing, manufacturing, adverse
6
reaction reporting, research, safety and efficacy testing of vaccines in order to reduce the risk
7
of adverse vaccine reactions, HHS apparently has never complied with that statutory
8
obligation. See Stipulated Order, U.S.D.C. S.D. N.Y. No. 18-cv-03215 (JMF) (filed Jul. 9,
9
2018) & Press Release, INFORMED CONSENT ACTION NETWORK (ICAN) (Jul. 13, 2018),
10
https://www.icandecide.org/wp-content/uploads/2019/09/Stipulated-Order-copy-1.pdf; 42
11
U.S.C. § 300aa-27.
12
226.
Under the 1986 Act, the CDC plays a central role in ensuring the safety of the 72
13
doses of vaccines on the CDC’s Child and Adolescent Immunization Schedule. Most of these
14
vaccines, which are vigorously promoted by the CDC for injection into America’s children, are
15
manufactured and sold by four pharmaceutical companies -- GlaxoSmithKline (“GSK”),
16
Sanofi S.A. (“Sanofi”), Pfizer, and Merck & Co. (“Merck”).
17
227.
If a vaccine injures an individual, the injured individual must (pursuant to the
18
1986 Act) bring a claim in the National Vaccine Injury Compensation Program (“VICP”),
19
administered in the Federal Court of Claims. In such actions, the Secretary of HHS is the
20
respondent with the Department of Justice as its litigation counsel, and these government
21
lawyers regularly and vigorously defend against any claim that a vaccine caused injury. (42
22
U.S.C. § 300aa-12; Vaccine Injury Compensation Program: Addressing Needs and Improving
23
Practices, Sixth Report by the Committee on Government Reform, Union Calendar No. 575,
24
106th Congress, 2d Session, House Report 106–977, HOUSE COMMITTEE ON GOVERNMENT
25
REFORM HEARINGS (Oct. 12, 2000), https:///www.congress.gov/106/crpt/hrpt977/CRPT-
26
106hrpt977.pdf. As explained by HHS, which administers the program, listed injuries “are
27
presumed to be caused by vaccines unless another cause is proven” if occurring within a given
28
time frame post-vaccination. Frequently Asked Questions, National Vaccine Injury
86
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1
Compensation Program, HEALTH RESOURCES & SERVICES ADMINISTRATION,
2
https://www.hrsa.gov/vaccine-compensation/FAQ/index.html (last visited Aug. 14, 2020).
3
Total compensation paid over the life of the VICP from FY 1988 through May 2019 is
4
approximately $4.1 billion. Data & Statistics, HEALTH RESOURCES & SERVICES
5
ADMINISTRATION (May 1, 2019), https://www.hrsa.gov/sites/default/files/hrsa/vaccine-
6
compensation/data/monthly-stats-may-2019.pdf.
7
228.
At the same time, the plight of America’s children is that 54% (40 million) of
8
them suffer from chronic illnesses such as deadly allergies, asthma, eczema, anxiety,
9
depression, sensory abnormalities; 13% (9 million) are in special education; 11% (8 million)
10
have Attention Deficit Hyperactivity Disorder (“ADHD”); 2.7% (2 million) have or will be
11
diagnosed with Autism; 0.0035% (260,000) will be diagnosed with cancer by age 19; and
12
49.5% of teens aged 13 to 18 have (or have had) a mental health disorder. See, e.g., Christina
13
D.Bethell, Ph.D. et al., A National and State Profile of Leading Health Problems and Health
14
Care Quality for US Children: Key Insurance Disparities and Across-State Variations,
15
ACADEMIC PEDIATRICS, Volume 11, Issue 3, Supplement, May–June 2011, pp. S22-S33,
16
https://www.sciencedirect.com/science/article/pii/S1876285910002500 [54% chronic illness];
17
Students with Disabilities, NATIONAL CENTER FOR EDUCATION STATISTICS (May 2020),
18
https://nces.ed.gov/programs/coe/indicator_cgg.asp [13% special education]; Susanna N.
19
Visser, MS et al., Trends in the Parent-Report of Health Care Provider-Diagnosed and
20
Medicated Attention-Deficit/Hyperactivity Disorder: United States, 2003–2011, JOURNAL OF
21
THE AMERICAN ACADEMY OF CHILD & ADOLESCENT PSYCHIATRY, Volume 53 Number 1
22
(January 2014), https://jaacap.org/article/S0890-8567(13)00594-7/fulltext [11% ADHD]. This
23
level of chronic illness and disability among children is unprecedented in the United States.
24
229.
Significantly, no scientific studies have tested the entire immunization schedule
25
or compared the differences in health outcomes between children vaccinated according to the
26
CDC’s full 72-dose vaccine schedule and children who have remained partially, or completely,
27
unvaccinated. See Institute of Medicine, Childhood Immunization Schedule and Safety:
28
Stakeholder Concerns, Scientific Evidence, and Future Studies, NATIONAL ACADEMIES PRESS
87
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1
(2013), pp. 5-6, https://doi.org/10.17226/13563. Simply put, no studies have refuted the
2
biologically-plausible hypothesis that the CDC’s vaccine schedule is contributing in some
3
degree to the epidemic of chronic childhood illnesses.
4
230.
Vaccines are among the pharmaceutical industry’s best-selling products. Andrew
5
Ward, Vaccines are among big pharma’s best-selling products, FINANCIAL TIMES (Apr. 24,
6
2016), https://www.ft.com/content/93374f4a-e538-11e5-a09b-1f8b0d268c39. According to
7
two recent market research reports, the global vaccine market was over $41 billion in 2019, is
8
projected to reach over $58 billion by 2024, and over $93 billion by 2026. Vaccines Market -
9
Global Forecast to 2024, MARKETSANDMARKETS (January 2020),
10
https://www.marketsandmarkets.com/Market-Reports/vaccine-technologies-market-1155.html;
11
Vaccines Market Size, Share & Industry Analysis, 2020-2027, FORTUNE BUSINESS INSIGHTS,
12
https://www.fortunebusinessinsights.com/industry-reports/vaccines-market-101769 (last
13
visited Aug. 14, 2020).
14
231.
Yet, as bioethics professor Carl Elliott wrote in a July 2, 2020 New York Review
15
of Books article, “[I]t would also be a mistake to assume that drug makers will be honest and
16
open about their research results. It is not just that many have repeatedly failed to publish
17
unfavorable data. As the former editor of The British Medical Journal has written, many have
18
simply designed their research studies to produce the results they want. Medical journal editors
19
have been raising the alarm about this for over fifteen years now. Between 1991 and 2010,
20
according to Public Citizen, the pharmaceutical industry was the leading defrauder of the
21
federal government, as measured by penalties paid for violating the False Claims Act.” Carl
22
Elliott, An Ethical Path to a Covid Vaccine, NEW YORK REVIEW OF BOOKS (July 20, 2020),
23
https://www.nybooks.com/articles/2020/07/02/ethical-path-covid-19-vaccine/.
24
232.
Criticism of the CDC, discussion of conflicts of interest within the organization
25
and their effect on vaccine safety were open topics among the public and lawmakers not long
26
ago. In 2006, Reps. Dr. Dave Weldon (R-FL), and Carolyn Maloney (D-NY), introduced a bill
27
that would give responsibility for vaccine safety to an independent agency within DHHS, and
28
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remove most vaccine safety research from the CDC. While the bill did not pass, it was openly
2
recognized that there were conflicts of interest.
3
233.
There was bipartisan scrutiny of the CDC. On February 22, 2006, a letter to Dr
4
David Schwartz, Director of the National Institute of Environmental Health Sciences, signed
5
by U.S. Senators Joe Lieberman (D-Conn) and Debbie Stabenow (D-Mich), and members of
6
the House Representatives including, Dr Dave Weldon, (R-Fla) Chris Smith, (R-NJ), Carolyn
7
Maloney, (D-NY), Dan Burton, (R-Ind), Joseph Crowley, (D-NY), and Maurice Hinchey, (D-
8
NY) stated, “If the federal government is going to have a study (regarding the flu vaccine)
9
whose results will be broadly accepted, such a study cannot be led by the CDC.” Evelyn
10
Pringle, Lawmakers Sever Ties Between CDC and Big Pharma, LAWYERS AND SETTLEMENTS
11
(Aug. 21, 2006) https://www.lawyersandsettlements.com/legal-news/drugs-
12
medical/CDC_Big_Pharma-00285.html. At the time, Dr Weldon stated, “There's an enormous
13
inherent conflict of interest within the CDC and if we fail to move vaccine safety to a separate
14
independent office, safety issues will remain a low priority and public confidence in vaccines
15
will continue to erode.”
16
234.
In recent years, The Atlantic Monthly among others has published stories critical
17
of the CDC’s “internal scandal and funding issues.” See, e.g., Vann. R. Newkirk II, Is the CDC
18
Losing Control?, THE ATLANTIC (Feb. 3, 2018), https://www.theatlantic.com/politics/archive/
19
2018/02/cdc-scandal-preparedness-budget/552200/. And, during the current COVID-19
20
pandemic, journalists and public officials alike have increasingly questioned whether the CDC
21
is a truly reliable or up-to-date source of public health information. See, e.g., Alexis C.
22
Madrigal & Robinson Meyer, How Could the CDC Make That Mistake?, THE ATLANTIC (May
23
21, 2020), https://www.theatlantic.com/health/archive/2020/05/cdc-and-states-are-
24
misreporting-covid-19-test-data-pennsylvania-georgia-texas/611935/. On May 9, 2020, Dr.
25
Deborah Birx, the White House Coronavirus Response Coordinator, reportedly stated, “There
26
is nothing from the CDC that I can trust.” Josh Dawsey, Ashley Parker, Philip Rucker and
27
Yasmeen Abutaleb, As deaths mount, Trump tries to convince Americans it’s safe to inch back
28
to normal, WASHINGTON POST (May 9, 2020),
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https://www.washingtonpost.com/politics/as-deaths-mount-trump-tries-to-convince-americans-
2
its-safe-to-inch-back-to-normal/2020/05/09/bf024fe6-9149-11ea-a9c0-
3
73b93422d691_story.html (emphasis supplied). Similarly, on June 3, 2020, Dr. Ashish Jha, the
4
director of the Harvard Global Health Institute, stated, “The CDC is no longer the reliable go-
5
to place.” Eric Lipton, et al., The CDC waited 'its entire existence for this moment.' What went
6
wrong?, NEW YORK TIMES (Jun. 2, 2020), https://www.sfgate.com/news/article/The-CDC-
7
Waited-Its-Entire-Existence-for-This-15312642.php. CHD and RFK, Jr. have echoed many of
8
their concerns, yet CHD has been singled out for Facebook’s misleading “fact-checks,” and its
9
falsely disparaging warning label which trumpets the CDC “party line.”
10
E.
Material Questions of 5G Network Safety.
11
235.
According to the FCC, “[w]ithin the next few years, 5G networks . . . will make
12
possible once-unimaginable advances, such as self-driving cars and growth of the ‘Internet of
13
Things,’” i.e., the rapidly expanding collection of devices that collect, transmit and share data
14
via the internet. 5G networks “will increasingly need to rely on network densification, [which
15
entails] the deployment of far more numerous, smaller, lower-powered base stations or nodes
16
that are much more densely spaced.” United Keetoowah Band of Cherokee Indians in Okla. v.
17
FCC, 933 F.3d 728, 739 (D.C. Cir. 2019).
18
236.
Cellular wireless services, including cellular phones and other forms of wireless
19
data transmission, use pulsed and modulated radio frequency signals to transmit the data
20
wirelessly. Wireless service in the United States has mostly depended on large “macro cell”
21
towers to transmit cell signal. However, to provide sufficient bandwidth to support wirelessly
22
interconnecting tens of billions more devices (see, e.g., Sundeep Rangan, Theodore S.
23
Rappaport & Elza Erkip, Millimeter-Wave Cellular Wireless Networks: Potentials and
24
Challenges, PROCEEDINGS OF THE IEEE | Vol. 102, No. 3, March 2014,
25
https://ecfsapi.fcc.gov/file/60001013329.pdf), companies offering the next generation of
26
wireless service — known as 5G — are in the process of adding hundreds of thousands of
27
densely-spaced, wireless facilities, or “small cells.” United Keetoowah Band of Cherokee
28
Indians in Okla. v. FCC, 933 F.3d at 732. These “small cell” antennas are largely being
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deployed in the public rights-of-way, on utility poles and lamp posts sometimes only a few feet
2
from homes and children’s bedrooms. Although small cells may use less power than big cell
3
towers, because of their proximity, the radiation exposure may be exponentially greater.
4
237.
The evolution of cellular phone technology is represented by “Generations”
5
(“G”), from 1G to 4G. 5G is different. It is not only cellular phone networks, but it describes a
6
broader wireless infrastructure that will support the” Internet of Things,” driverless cars,
7
“smart cities,” and other technologies that may not yet be in existence. See, e.g., Remarks of
8
Chairman Wheeler on The Future of Wireless, FEDERAL COMMUNICATIONS COMMISSION (Jun.
9
20, 2016), https://www.fcc.gov/document/remarks-chairman-wheeler-future-wireless. It is also
10
used to provide internet services and thereby can displace existing wired internet services such
11
as cable-internet.
12
238.
5G cellular networks operate in the same group of RF frequencies used for
13
current wireless technologies. For example, currently, it is using low band frequencies around
14
600 MHz and mid band frequencies between 2.5-4.2 GHz. However, the increased bandwidth
15
and speed for 5G is achieved partly by using higher RF frequencies (currently, between 24-47
16
GHz), known as “millimeter wave” frequencies. 5G, WIKIPEDIA,
17
https://en.wikipedia.org/wiki/5G (last visited Aug. 14, 2020). Wireless technology uses RF
18
signals to carry data (“carrier wave”). The data is encoded on the carrier RF wave by pulsing
19
and modulating the RF signal. The scientific evidence shows that the pulsation and modulation
20
are biologically active. See e.g., Igor Belyaev et al., 2012 Supplement, Evidence for Disruption
21
by Modulation, BIOINITIATIVE.ORG (Sept. 2012), https://bioinitiative.org/wp-
22
content/uploads/pdfs/sec15_2012_Evidence_Disruption_Modulation.pdf. 5G is also using
23
complex modulation schemes.
24
239.
Well over a thousand studies illustrate the biological and potential risks of
25
exposure to non-thermal levels of pulsed and modulated radiofrequency radiation used for
26
wireless technology.
27
240.
28
The BioInitiative Report is the most extensive review of the scientific evidence
of the biological and adverse health effects of RFs and electromagnetic fields (EMFs). It was
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originally published in 2007. In 2012 an updated version was published, and it has been
2
continuously updated ever since, most recently in 2020. The report is authored by the
3
BioInitiative Working Group, comprised of 29 independent world-leading scientists and public
4
health experts on RFs and EMFs. The report aims to provide a “Rationale for Biologically-
5
based Public Exposure Standards for Electromagnetic Fields (Extremely Low Frequency and
6
Radio Frequency.” BIOINITIATIVE.ORG, https://bioinitiative.org/. The BioIniative concludes
7
that “bio-effects can occur… from just minutes of exposure… Many of these bioeffects can
8
reasonably be presumed to result in adverse health effects if the exposures are prolonged or
9
chronic.”
10
241.
The BioInitiative’s recommended levels of exposure are based on “observed
11
effects” found in humans in epidemiological studies. They are based on actual adverse effects
12
observed in individuals living near cell towers and therefore highly relevant to the exposure
13
from the “small cells” used for the 5G infrastructure. The recommended levels are well below
14
the existing FCC guidelines. Furthermore, the BioInitiative recommends adopting guidelines
15
that take into consideration the effects of pulsation and modulations.
16
242.
Since 5G is using the same group of RF frequencies, as well as pulsed and
17
modulated signals, the existing body of science regarding the biological and health effects of
18
current RF-based technologies is relevant to 5G. Furthermore, there is a growing body of
19
evidence regarding the biological and adverse effects of millimeter waves. Effects shown
20
include arrhythmias, heart rate variability, bacterial effects, antibiotic resistance, immune
21
system effects, altered gene expression and cataracts. See, e.g., Cindy L. Russell, 5G wireless
22
telecommunications expansion: Public health and environmental implications, ENVIRON RES.
23
2018 Aug;165:484-495. doi: 10.1016/j.envres.2018.01.016. Epub 2018 Apr 11. PMID:
24
29655646, https://pubmed.ncbi.nlm.nih.gov/29655646/.
25
243.
There are specific concerns regarding the exposure of children to RF based
26
wireless technology and radiation. The BioInitiative report reviewed over 200 studies showing
27
profound neurological effects showing clear evidence of adverse effects from RF/EMF
28
including effects during the prenatal period and childhood. Studies show that prenatal exposure
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can permanently affect brain neuro-development, memory and behavior and can lead to
2
ADHD. RF/EMF exposure can also cause headaches, ringing in the ears, heart palpitations,
3
sleep problems, cognitive and memory problems and nose bleeds. Belyaev I, Dean A, Eger H,
4
et al., EUROPAEM EMF Guideline 2016 for the prevention, diagnosis and treatment of EMF-
5
related health problems and illnesses, REV. ENVIRON HEALTH. 2016, 31(3), 363-397,
6
https://pubmed.ncbi.nlm.nih.gov/27454111/. Over 200 studies also establish Oxidative Stress
7
as a causal mechanism of harm. The evidence of profound harms associated with exposure to
8
RFs suggests that wireless technology may also contribute to the exponential increase in
9
sickness in children referenced supra.
10
244.
There is also strong evidence that RF radiation can cause cancer and DNA
11
damage. In November 2018, the results of a $30 million study conducted by the U.S. National
12
Toxicology Program (NTP) were published. The study found “clear evidence” that exposure to
13
pulsed and modulated cell phone RF radiation caused cancer in rats. High Exposure to Radio
14
Frequency Radiation Associated with Cancer in Male Rats, NATIONAL INSTITUTE OF
15
ENVIRONMENTAL HEALTH SCIENCES (Nov. 1, 2018),
16
https://www.niehs.nih.gov/news/newsroom/releases/2018/november1/ index.cfm. In November
17
2019, the NTP published further results showing DNA damage. The NTP’s DNA findings
18
confirm the results of dozens of other DNA studies.
19
245.
The Ramazzini Institute in Italy replicated the key finding of the NTP using
20
much weaker exposure levels to cell phone radiation over the life of the rats. Thus, the
21
Ramazzini Institute study, a €6 million study, extended the results of the NTP study to far
22
lower levels of radiation exposure, comparable to levels of radiation from cell towers and
23
therefore relevant to 5G networks. Falcioni L, Bua L, Tibaldi E, et al., Report of final results
24
regarding brain and heart tumors in Sprague-Dawley rats exposed from prenatal life until
25
natural death to mobile phone radiofrequency field representative of a 1.8 GHz GSM base
26
station environmental emission, ENVIRON RES. 2018; 165:496-503,
27
https://pubmed.ncbi.nlm.nih.gov/29530389/; see also Joel M. Moskowitz, We Have No Reason
28
to Believe 5G Is Safe, SCIENTIFIC AMERICAN (Oct. 17, 2019),
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2
https://blogs.scientificamerican.com/observations/we-have-no-reason-to-believe-5g-is-safe/.
246.
In 2011, the International Agency for Research on Cancer (IARC) of the WHO
3
classified RF radiation including radiation from cell towers as a “possible” (2B) carcinogen in
4
humans. In its 2013 Monograph, IARC stated that while there is epidemiological evidence of
5
increased cancer risk in humans, more animal studies are needed for a higher classification.
6
Non-ionizing Radiation, Part 2: Radiofrequency Electromagnetic Fields, IARC Monographs
7
on the Evaluation of Carcinogenic Risks to Humans Volume 102, IARC Publications,
8
INTERNATIONAL AGENCY FOR RESEARCH ON CANCER, WORLD HEALTH ORGANIZATION,
9
https://publications.iarc.fr/126. The results of the NTP and Ramazzini studies provide the
10
“missing link.” Scientists, including a retired NTP/NIEHS scientist who designed the NTP
11
study, are calling for the reclassification of RF as at least a “probable” (2A) carcinogen, and
12
some claim the evidence is sufficient for a 1A “human carcinogen.” See, e.g., Ronald L.
13
Melnick, Commentary on the utility of the National Toxicology Program study on cell phone
14
radiofrequency radiation data for assessing human health risks despite unfounded criticisms
15
aimed at minimizing the findings of adverse health effects, ENVIRON RES. 2019 Jan;168:1-6.
16
doi: 10.1016/j.envres.2018.09.010. Epub 2018 Sep 20. PMID: 30243215,
17
https://pubmed.ncbi.nlm.nih.gov/30243215/.
18
247.
In 2012, Italy’s Supreme Court found that cell phones cause acoustic neuroma-
19
type brain tumors. Acoustic Neuroma is a Schwannoma tumor, the same type of tumor found
20
in the NTP study. Since then, courts in three additional cases reached the same conclusion.
21
248.
In December 2017, the California Department of Public Health (“CDPH”)
22
published guidelines in response to the available peer-reviewed scientific evidence that RFR
23
may cause DNA damage, reproduction harms, cancer and learning disabilities in humans,
24
among other effects. CDPH Director and State Public Health Officer Dr. Karen Smith stated
25
that “although the science is still evolving, there are concerns among some public health
26
professionals and members of the public regarding long-term, high use exposure to the energy
27
emitted by cell phones.” CDPH Issues Guidelines on How to Reduce Exposure to Radio
28
Frequency Energy from Cell Phones, Office of Public Affairs, CALIF. DEPT. OF PUBLIC
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HEALTH (Dec. 13, 2017), https://www.cdph.ca.gov/Programs/OPA/Pages/NR17-086.aspx. See
2
also Cal. Gov. Code § 659641.1, subd. (f) (exempting wireless facilities on fire department
3
facilities from mandatory approval after some firefighters developed severe neurological
4
injuries from cell towers located on their stations).
5
249.
In 2014, the California Medical Association passed a resolution calling upon the
6
FCC to update its health guidelines as the scientific evidence showing profound adverse effects
7
from wireless technologies. California Medical Association House of Delegates Resolution,
8
Wireless Standards Reevaluation, 2014 Resolution 107, CALIFORNIA MEDICAL ASSOCIATION
9
(adopted Dec. 7, 2014), https://ecfsapi.fcc.gov/file/1092989731923/30-Attachment%2030-
10
%20California%20Medical%20Association%20Resolution.pdf.
11
250.
In 2015, over 200 scientists from 42 countries, who collectively published over
12
2,000 papers, reviews, commentaries, and letters in professional journals on different types of
13
non-ionizing EMF, sent the “International EMF Scientist Appeal” letter to the United Nations
14
and WHO, stating: “Based upon peer reviewed, published research, we have serious concerns
15
regarding the ubiquitous and increasing exposure to … wireless devices.” Scientists call for
16
Protection from Non-ionizing Electromagnetic Field Exposure, EMF SCIENTIST,
17
https://www.emfscientist.org/index.php/emf-scientist-appeal (last visited Aug. 14, 2020).
18
251.
The 5G Appeal was prepared in 2017 by scientists and doctors who called on the
19
European Union (“EU”) to impose a moratorium on the roll out of 5G due to serious potential
20
health effects from 5G technology. They expressed their “serious concerns” regarding the
21
ubiquitous and increasing exposure to EMF generated by electric and wireless devices already
22
before the additional 5G roll-out. As of August 27, 2020, 403 scientists and medical doctors
23
have signed the 5G Appeal. The Signatories, 5G APPEAL, http://www.5gappeal.eu/signatories-
24
to-scientists-5g-appeal/. The 5G Appeal urges the EU to “take all reasonable measures to halt
25
the 5G RF-EMF [“radio frequency-electromagnetic fields”] expansion until independent
26
scientists can assure that 5G and the total radiation levels caused by RF-EMF (5G together
27
with 2G, 3G, 4G, and WiFi) will not be harmful for EU citizens, especially infants, children
28
and pregnant women, as well as the environment.”
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252.
The 5G Appeal states that “RF-EMF has been proven to be harmful for humans
2
and the environment.” Quoting the EMF Scientist, it asserts “numerous recent scientific
3
publications have shown that EMF affects living organisms at levels well below most
4
international and national guidelines”. Effects include increased cancer risk; cellular stress,
5
increase in harmful free radicals, genetic damage, structural and functional changes of the
6
reproductive system, learning and memory deficits, neurological disorders, and negative
7
impacts on the general well-being in humans. Damage goes well beyond the human race, as
8
there is growing evidence of harmful effects to both plant and animal life.” International
9
Appeal: Scientists call for Protection from Non-ionizing Electromagnetic Field Exposure,
10
EMFSCIENTIST.ORG, https://emfscientist.org/index.php/emf-scientist-appeal.
11
253.
The 5G Appeal concludes that an epidemic of sickness from this radiation
12
already exists and “inaction is a cost to society and is not an option anymore.” About, 5G
13
APPEAL, http://www.5gappeal.eu/about/ (last visited Aug. 14, 2020) (emphasis added).
14
F.
15
16
Facebook’s Adverse Motives.
1.
254.
Zuckerberg’s Personal Involvement and Biases.
It is highly probable that Zuckerberg has participated in, and personally directed
17
“vaccine misinformation” policy decisions at Facebook which directly harmed CHD. It is also
18
highly probable that Zuckerberg is directly involved with, and directing the philosophy of
19
Facebook’s public health agency partnership strategy. The decision to demonetize advertising
20
and donations for organizations like CHD related to “vaccine misinformation” is a decision
21
that Zuckerberg would likely have known about, and approved, given his historical prominence
22
in decisions related to content management generally, and vaccine “misinformation”
23
specifically. As CEO of Facebook, Zuckerberg would have known about Facebook’s
24
Preventive Health App, and most likely set the direction of its requirements in conjunction
25
with public health agencies. Zuckerberg’s commentaries on public health/Facebook
26
collaborations, and his direct involvement in related efforts such as CZI’s for-profit vaccine
27
development, strongly suggest that he has exercised direct personal supervision and control of
28
Facebook’s corporate actions at issue here.
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255.
There is substantial evidence that Zuckerberg, acting in his position as Facebook
2
CEO and controlling shareholder, is personally involved with and directs its editorial decisions
3
and policies with respect to what sorts of posts are and are not censored. It is more than likely
4
Zuckerberg was substantially involved in the setting of vaccine “misinformation” policies and
5
algorithms which Facebook deployed against CHD.
6
256.
CHD has been effective in spreading information that is threatening to
7
Zuckerberg’s financial interests in pharmaceutical ad revenue, 5G network deployment, and
8
vaccine development. Independent media sources have verified that CHD was, prior to
9
censorship, one of the top sources of purportedly “anti-vaccine” ads on Facebook.
10
257.
CHD started posting articles against 5G, the new telecom technology, in October,
11
2019. Currently, CHD posts anti-5G content once every seven days. These posts include
12
science-based claims that 5G may cause significant damage to human DNA, may cause cancer,
13
and is being installed in order to carry out mass surveillance. CHD and RFK, Jr.’s 5G-related
14
posts have garnered more than 400,000 likes or other interactions.
15
258.
Similarly, RFK, Jr. and CHD only posted about Bill Gates twice prior to
16
December, 2019, but since then have mentioned Mr. Gates about once every five days. CHD’s
17
highest-ever performing post was about Mr. Gates, and was flagged by Poynter/PolitiFact as
18
false: It claimed that the Gates Foundation paralyzed 496,000 children in India when it tested a
19
polio vaccine. He has also accused Mr. Gates of profiting from the pandemic, of wanting to
20
“genetically modify” humanity, and of controlling not only the WHO, but also “the flow of
21
global information.” So far, RFK, Jr., and CHD’s posts about Mr. Gates have achieved more
22
than one million likes, shares and clicks. Alexi Mostrous, How a Kennedy became a
23
‘superspreader’ of hoaxes on COVID-19, vaccines, 5G and more, THE GLOBE AND MAIL
24
(Sept. 16, 2020), https://www.theglobeandmail.com/world/article-robert-f-kennedy-jr-medical-
25
misinformation/. Given Zuckerberg’s close involvement and CHD’s prominence in these
26
issues, it is quite likely that Zuckerberg was personally aware of CHD and RFK, Jr.’s work.
27
28
259.
Zuckerberg’s goal is to reduce anti-vaccine “sentiment” in the populace
generally, in which Facebook’s vaccine “misinformation” campaign plays a significant part.
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He is less concerned with finding scientific truth than the pursuit of an ideology of universal
2
vaccination. Given Zuckerberg’s ideology and his position as CEO, Facebook policy cannot
3
but mold itself to his whims. Thus, the modus operandi which Zuckerberg set in motion was to
4
identify any information critical of vaccines in any way, and then attempt to see if “fact-
5
checking” could be done on it. Facebook said that a variety of human “fact-checkers” and
6
machine learning was used to do so.
7
260.
Zuckerberg has publicly stated his ideological belief in vaccinations numerous
8
times. He has said, for example, that “[v]accination is an important and timely topic. The
9
science is completely clear: vaccinations work and are important for the health of everyone in
10
our community.” Phil Plait, Mark Zuckerberg: Pro-Vaxxer, SLATE (Jan. 12, 2016),
11
https://slate.com/technology/2016/01/mark-zuckerberg-publicly-supports-vaccination.html.
12
261.
13
Foundation.
14
262.
As alleged supra, Zuckerberg has donated at least $25 million to the CDC
At an October 22, 2019 U.S. House Committee on Financial Services hearing,
15
Congressman Bill Posey (R-FL) had the following exchange with Zuckerberg, which revealed
16
a strikingly unscientific view of the scientific method with respect to vaccines:
17
18
19
20
21
22
23
24
25
26
27
Representative Posey: I support vaccinations of children and adults,
but I also support open and frank communication about the risks of
vaccination. You testified that you believe in giving people a voice.
Is Facebook able to assure us it will support users’ fair and open
discussions and communications about the risks as well as the
benefits of vaccinations?
Mr. Zuckerberg: We do care deeply about giving people a voice
and freedom ofexpression. At the same time, we hear consistently
from our community that people want us to stop the spread of
misinformation. So what we do is try to focus on misinformation
that has the potential to lead to imminent or physical harm, and that
can include especially misleading health advice.
Representative Posey: Are you 100% confident that vaccines pose
no injury to any person on this planet?
28
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Mr. Zuckerberg: I don’t think it would be possible for anyone to be
100 percent confident but my understanding of the scientific
consensus is that it’s important that people get their vaccines.
1
2
3
Representative Posey: Shouldn’t somebody have the opportunity to
express an opinion different from yours?
4
5
8
Mr. Zuckerberg: If someone wants to post anti-vaccination content
or they want to join a group where people are discussing that, we
don’t stop them from doing that. But […] we don’t go out of our
way to make sure our group recommendation systems show people
or encourage people to join those groups. We discourage that.
9
Facebook CEO Testimony Before House Financial Services Committee [Video], C-SPAN (Oct.
10
23, 2019), https://www.c-span.org/video/?465293-1/facebook-ceo-testimony-house-financial-
11
services-committee (emphasis added).
6
7
12
263.
Yet, by contrast, when it comes to “political speech,” Zuckerberg claims to be a
13
First Amendment absolutist. In a May 27, 2020 interview with Fox TV News anchor Dana
14
Perino, Zuckerberg rebuked Twitter for its decision to tag two of President Donald Trump’s
15
tweets about mail-in voting with fact-check links. Zuckerberg said, “I just believe strongly that
16
Facebook shouldn't be the arbiter of truth of everything that people say online. Private
17
companies probably shouldn't be, especially these platform companies, shouldn't be in the
18
position of doing that.” Rachel Sandler, Zuckerberg Criticizes Twitter For Fact-Checking
19
Trump Tweets, FORBES (May 27, 2020), https://www.forbes.com/sites/rachelsandler/
20
2020/05/27/zuckerberg-criticizes-twitter-for-fact-checking-trump-tweets/#2aec97616f7a
21
(emphasis added). This is a very significant admission by Facebook’s chairman even as he and
22
his company purport to “arbitrate the truth” of open scientific controversies when doing so
23
advances their business interests.
24
264.
On June 2, 2020, Zuckerberg held a “town hall” with Facebook employees who
25
believe the company should take action on a controversial post by President Trump that “when
26
the looting begins, the shooting begins[,]” which many people interpreted as a call for violence
27
in nationwide protests over the death of George Floyd. Twitter put a warning label over the
28
tweet, flagging it as violent content that violated that company's policies, but the tweet was
99
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1
being left up because it was newsworthy. Facebook declined to take any action on a similar
2
post on its site.
3
265.
At the “town hall,” Zuckerberg defended his decision that the post did not
4
constitute a policy violation, as he “personally walked employees through different
5
interpretations of Trump's language.” Zuckerberg’s personal involvement in the decision is
6
“characteristic of the way he has handled controversial policy choices over the last several
7
years[.] [. . .] His leadership style contrasts with Twitter CEO Jack Dorsey, who tends to
8
delegate policy decisions to his deputies. Zuckerberg also made the decision not to take down a
9
video of House Speaker Nancy Pelosi that was manipulated to make her appear drunk. He
10
made a personal call not to fact check political advertising, despite frustration from the public
11
and from employees, according to a person familiar with the decision-making.” Elizabeth
12
Dwoskin, Zuckerberg defends decisions on Trump as Facebook employee unrest grows,
13
WASHINGTON POST (Jun. 2, 2020), https://www.sfgate.com/news/article/Zuckerberg-defends-
14
decisions-on-Trump-as-Facebook-15311764.php. Zuckerberg justified his decision not to act
15
against the President’s posts, citing his responsibility as the “leader of an institution committed
16
to free expression.” Donie O'Sullivan & Brian Fung, Mark Zuckerberg tries to explain his
17
inaction on Trump posts to outraged staff, CNN BUSINESS (Jun. 2, 2020),
18
https://www.cnn.com/2020/06/02/tech/facebook-all-hands-trump/index.html. Tellingly,
19
Zuckerberg’s professed commitment to “free expression” does not extend to truthful
20
communication about vaccine safety or 5G network health risks.
21
266.
On an October 28, 2020, U.S. Senate Commerce Committee Hearing,
22
Zuckerberg testified to his belief that free speech is an “equity” that should be weighed against
23
other considerations, not a foundational freedom. Sen. Marsha Blackburn (R-TN) said in
24
introducing her question that Facebook is “picking winners and losers,” and that the company
25
is “inserting itself” into issues of free speech. “Is the First Amendment a given right, or is that
26
a competing equity?” she asked, referencing Zuckerberg’s earlier commentary.
27
28
267.
“I believe strongly in free expression,” Zuckerberg replied. “But I do think that,
like all equities, it is balanced against other equities, like safety and privacy. Even people who
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1
believe in the strongest possible interpretation of the First Amendment still believe there
2
should be some limits on speech when it could cause an imminent risk of physical harm.”
3
Rudy Takala, Mark Zuckerberg Says Facebook ‘Balances’ First Amendment Against ‘Other
4
Equities’: ‘There Should be Some Limits on Speech,’ MEDIAITE (Oct. 28, 2020),
5
https://www.mediaite.com/news/mark-zuckerberg-says-facebook-balances-first-amendment-
6
against-other-equities-there-should-be-some-limits-on-speech/.
7
8
2.
268.
Vaccine-Maker Ad Revenue.
Facebook earns revenue primarily through the sale of targeted advertising that
9
appears on members’ Facebook pages. See, e.g., Fraley v. Facebook, 830 F. Supp. 2d 785, 791
10
(N.D. Cal. 2011). Facebook generates 98 percent of its revenue through ads. It netted $17.4
11
billion from advertising in its most recent quarter. Tiffany Hsu & Cecilia Kang, “Morally
12
Impossible”: Some Advertisers Take a Timeout From Facebook, NEW YORK TIMES (Jun. 9,
13
2020), https://www.nytimes.com/2020/06/09/business/media/facebook-advertisers-trump-
14
zuckerberg.html?searchResultPosition=2.
15
269.
Beginning as early as 2016, Facebook initiated programs to capture an ever
16
greater share of the pharmaceutical direct-to-consumer advertising market. That year,
17
Facebook unveiled a new feature enabling pharmaceutical companies to comply with
18
regulatory restrictions on advertising by showing “important safety information,” or ISI, in a
19
scrolling section featured below the ad. Beth Snyder Bulik, Bayer blazes new trails for pharma
20
with Betaseron Facebook ad, FIERCEPHARMA (Oct. 30, 2016),
21
https://www.fiercepharma.com/marketing/bayer-s-first-facebook-ad-campaign-features-first-
22
scrolling-isi-a-pharma-ad-facebook-ad. That feature has paid off hugely for Facebook.
23
24
25
26
27
28
270.
In a Washington Post article entitled Facebook has a prescription: More
pharmaceutical ads dated March 3, 2020, journalist Natasha Tiku wrote:
After years of avoiding social media, drug companies are growing
bolder about advertising on Facebook and other social networks,
according to interviews with advertising executives, marketers,
health-care privacy researchers and patient advocates. That is
exposing loopholes around the way data can be used to show
consumers relevant ads about their personal health, even as both
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1
social networks and pharmaceutical manufacturers disavow
targeting ads to people based on their medical conditions.
2
Ads promoting prescription drugs are popping up on Facebook for
depression, HIV and cancer. Spending on Facebook mobile ads
alone by pharmaceutical and health-care brands reached nearly a
billion dollars in 2019, nearly tripling over two years, according to
Pathmatics, an advertising analytics company. Facebook offers
tools to help drug companies stay compliant with rules about
disclosing safety information or reporting side effects.
3
4
5
6
7
8
But seeing an ad for a drug designed to treat a person’s particular
health condition in the relatively intimate setting of a social media
feed — amid pictures of friends and links to news articles — can
feel more intrusive than elsewhere online. The same opaque
Facebook systems that help place an ad for a political campaign or
a new shoe in a user’s feed also can be used by pharmaceutical
companies, allowing them to target consumers who match certain
characteristics or had visited a particular website in the past.
9
10
11
12
13
14
[…]
15
The growing concern about targeted pharmaceutical ads is
unfolding against an expansion at Facebook focusing more
generally on health — including encouraging more groups, where
community members gather to discuss certain topics, like the one
Downing moderates. It’s also been actively soliciting more healthcare-focused ads.
16
17
18
19
20
23
[. . .]
Pfizer, Allergan, Merck and GlaxoSmithKline were among the top
10 spenders on Facebook mobile ads in 2019, along with fastgrowing health start-ups such as SmileDirectClub and Roman,
according to Pathmatics.
24
Natasha Tiku, Facebook has a prescription: More pharmaceutical ads, WASHINGTON POST
25
(Mar. 3, 2020), https://www.washingtonpost.com/technology/2020/03/03/facebook-pharma-
26
ads/.
21
22
27
28
271.
“While healthcare and pharma digital ad spending has grown faster in previous
years, its 2020 growth is substantial, as the total US digital ad market is expected to grow by
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1
only 1.7%.” Blake Droesch, US Healthcare and Pharma Is Among the Fastest-Growing Digital
2
Ad Spenders, eMarketer (Oct. 9, 2020), https://www.emarketer.com/content/us-healthcare-
3
pharma-digital-ad-spending-outlook.
4
5
6
7
8
9
10
11
12
13
14
15
16
272.
17
18
19
20
21
22
23
24
25
26
273.
27
274.
28
As alleged supra, Merck & Co., Pfizer, and GlaxoSmithKline are three of the
four pharmaceutical manufacturers (Sanofi is the other) which control the United States
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1
vaccine market. Facebook and Zuckerberg personally have a substantial adverse motive to
2
protect the brands and goodwill of their largest pharmaceutical advertising buyers from
3
criticism, however legitimate and well-founded, at the hands of CHD.
4
5
3.
275.
Vaccine Development.
In December 2015, Zuckerberg and his wife Dr. Priscilla Chan co-founded the
6
Chan Zuckerberg Initiative, LLC, (“CZI”), a for-profit corporation, of which he is chairman,
7
chief executive officer, and co-managing member, with a pledge to “donate” (i.e., transfer) 99
8
percent of their Facebook shares, then valued at $45 billion. CZI and CZ Biohub, its wholly-
9
owned subsidiary, have set as their “moon shot mission” the goal “to cure all disease on the
10
planet within the Facebook executive’s childrens’ lifetimes.” The CZI Infectious Disease
11
Initiative seeks to develop new drugs, diagnostic tests and vaccines that could aid the fight
12
against diseases like HIV, Ebola and newly emerging threats like Zika. CZI Announces the
13
Chan Zuckerberg Biohub, CHAN ZUCKERBERG INITIATIVE (Sept. 23, 2016),
14
https://chanzuckerberg.com/newsroom/czi-announces-the-chan-zuckerberg-biohub/. CZI
15
purports that “[o]ur scientists and engineers will apply the most advanced technologies
16
available today and work to invent new tools as well to support the global fight against
17
infectious diseases. The work will be clustered around four key areas: diagnostic tests, new
18
drugs, vaccines and rapid response.”
19
20
21
22
23
24
25
26
27
28
276.
With respect to vaccines specifically, CZI’s online statement purports that:
We’re seeking new approaches to overcoming challenges that have
stymied vaccine development for diseases like HIV/AIDS and
tuberculosis. To push forward on vaccine development, we’ll use
recent advances emerging from structural biology, machine
learning and computer-assisted protein design to establish a new
approach for creating vaccine candidates. And we’ll adopt
“machine learning” strategies to develop powerful computer
programs that can sort through large volumes of scientific data for
insights.
We believe machine learning technology, now used for things like
driverless car and threat assessments, could be particularly
effective for probing clinical trial data for insights existing
analytical methods fail to find.
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1
Infectious Disease Initiative, CHAN ZUCKERBERG BIOHUB, https://www.czbiohub.org/projects/
2
infectious-disease/ (last visited Aug. 15, 2020).
3
277.
In 2018, Zuckerberg purported to transfer 29 million of his Facebook shares,
4
worth $5.3 billion, to CZI. Overall, the CZ Biohub (CZB) is expected to receive a transfer of
5
$600 million over the course of ten years from Zuckerberg. The CZB provides $50 million in
6
funding for researchers based in the San Francisco area at UC Berkeley, Stanford University,
7
and the University of California at San Francisco (UCSF). 750 researchers applied for the
8
grants, and 47 were awarded cash grants of up to $1.5 million, presumably in exchange for
9
patent ownership transfers to CZB, and thereby to Zuckerberg as controlling co-owner and co-
10
manager. The Chan Zuckerberg Biohub: Seeking to Cure All Diseases, BIOLEGEND BLOG,
11
https://www.biolegend.com/ja-jp/blog/the-chan-zuckerberg-biohub-seeking-to-cure-all-
12
diseases (last visited Aug. 15, 2020).
13
14
4.
278.
5G Networks.
Over the past five years, Facebook has made significant investments in
15
developing 5G home systems, 60 GHz antenna infrastructure for cities (“Project Telegraph”),
16
and 5G for rural areas (“Project Aries”), as well as satellites. Facebook purchased Inovi, a 5G
17
company, which it used to build a trial 5G network in San Jose, California and on Facebook’s
18
“campus” to test the viability and cost-effectiveness of 5G for mass deployment. Facebook also
19
spearheaded the Telecom Infrastructure Project (“TIP”). By building a network of companies
20
focused on 5G, Facebook seeks to harmonize the technical and standardization challenges of
21
rolling out the 5G network. Bijan Khosravi, Facebook's New Focus On 5G and Golden
22
Opportunity for Entrepreneurs, FORBES (Apr. 30, 2018), https://www.forbes.com/sites/
23
bijankhosravi/2018/04/30/todays-black-clouds-over-facebook-will-part-look-at-their-golden-
24
ideas-in-5g/#37c15fdd313b.
25
279.
Facebook also collaborates with Common Networks, a United States company,
26
to deliver ultra high-speed gigabit internet service to residential customers. Common Networks
27
is using Facebook’s Terragraph technology, which employs high-frequency radio waves to
28
speed up networks in locations with dense populations, as a replacement for standard home
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broadband. Katie Collins, Facebook and partners collaborate to bring 5G wireless internet to
2
California homes, CNET (Feb. 25, 2019), https://www.cnet.com/news/facebook-brings-faster-
3
than-fiber-5g-wireless-connectivity-to-california/.
4
280.
Facebook's subsidiary PointView Tech has designed an internet satellite (called
5
“Athena”) to provide broadband access to unserved and underserved areas throughout the
6
world. Facebook’s designers intend that Athena will deliver data 10-times faster than SpaceX’s
7
Starlink satellites. Mark Harris, Facebook May Have Secret Plans to Build a Satellite-Based
8
Internet, IEEE (May 2, 2018), https://spectrum.ieee.org/tech-talk/aerospace/satellites/facebook-
9
may-have-secret-plans-to-launch-a-internet-satellite. To support this expansion, Facebook
10
among other companies and governments have plans to launch collectively nearly 50,000
11
satellites to provide 5G and Wi-Fi services everywhere on Earth. See, e.g., Henry, C.,
12
Facebook willing to invest in satellite user equipment, SPACE NEWS (March 8, 2017),
13
https://spacenews.com/facebook-willing-to-invest-in-satellite-user-equipment/.
14
281.
Facebook recently announced its plan to construct an undersea cable circling the
15
African continent (“Project Simba”), to complement its transatlantic cable “Marea.” Facebook
16
intends that this global wifi infrastructure will support its “Free Basics” project, which
17
provides cheap internet services to the developing world. It currently operates in 63 countries.
18
282.
The greater bandwidth and lower latency (delay) of 5G will allow Facebook to
19
display more advertising content to its users at faster browsing speeds, generating ever more ad
20
revenue for Facebook. It also stands to benefit financially from expanded global Internet access
21
to its social media platform through expanding 5G networks. See, e.g., Jessi Hempel, Inside
22
Facebook’s Ambitious Plan to Connect the Whole World, WIRED (Jan. 19, 2016),
23
https://www.wired.com/2016/01/facebook-zuckerberg-internet-org/.
24
283.
Facebook also profits from expanded 5G networks, which can leverage other
25
substantial investments it has made in new technologies. In 2014, Facebook acquired the
26
virtual reality company Oculus for $2 billion, and since then, Facebook has filed a number of
27
related patents in the field of augmented reality technology (AR, VR, and home hardware
28
products). See, e.g., Christopher Yasiejko & Sarah Frier, Facebook’s Augmented Reality Push
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1
Causes Leap in U.S. Patents, BLOOMBERG (Jan. 14, 2020),
2
https://www.bloomberg.com/news/articles/2020-01-14/facebook-s-leap-in-u-s-patents-hints-at-
3
eye-on-virtual-reality (Zuckerberg opinion that “at some point in the 2020’s, we will get
4
breakthrough augmented reality glasses that will redefine our relationship with technology”);
5
Leo Sun, Will Facebook Redefine Augmented Reality With Stella and Orion?, MOTLEY FOOL
6
(Sept. 20, 2019), https://www.fool.com/investing/2019/09/20/will-facebook-redefine-
7
augmented-reality-with-stel.aspx (With respect to augmented reality, Facebook plans to
8
manufacture “smartglasses” which it has ‘codenamed’ ‘Stella,” set to launch between 2023 and
9
2025, and a more advanced model it has ‘codenamed’ ‘Orion.’). The success of these AR and
10
other products depends to a significant extent (if not entirely) on Facebook’s capacity to
11
exploit 5G networks’ increased bandwidth and speed.
12
284.
Additionally, Facebook has solidified its position as a leading developer of
13
artificial intelligence (“AI”) technology. 5G helps enable both AI and drone technology. Tom
14
Taulli, Facebook AI (Artificial Intelligence): Will M&A Help?, FORBES (Feb. 15, 2020),
15
https://www.forbes.com/sites/tomtaulli/2020/02/15/facebook-ai-artificial-intelligence-will-ma-
16
help/#104eed427664. Facebook purportedly has also been developing solar-powered drone
17
technology. Jon Russell, Facebook is reportedly testing solar-powered internet drones again
18
— this time with Airbus, TECHCRUNCH (Jan. 21, 2019), https://techcrunch.com/2019/01/21/
19
facebook-airbus-solar-drones-internet-program/?guccounter=1.
20
285.
Finally, Facebook stands to benefit from its investments in the “Internet of
21
Things” infrastructure that depends on 5G. At present, roughly 8.4 billion ‘things’ make up this
22
‘universe,’ - from cars to appliances to wearable tech – which represents a 31% increase in the
23
past four years. By the year 2025, that number may increase to 55 billion internet-enabled
24
devices. The Internet of Things will thrive on 5G technology, VERIZON (Jun. 12, 2018),
25
https://www.verizon.com/about/our-company/5g/internet-things-will-thrive-5g-technology.
26
Facebook’s business plan contemplates widespread exploitation of 5G networks across the
27
globe to drive its platform’s profitability.
28
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286.
While Facebook has faced criticism from Rep. Schiff regarding vaccine
2
“misinformation” and while there have been calls from public health institutions to address to
3
vaccine “misinformation,” there have been little-to-no public calls regarding 5G. It would
4
appear that censorship of CHD’s 5G-critical content is directly related to Facebook’s economic
5
interests, quite possibly coming at the suggestion from Zuckerberg himself.
6
287.
The 5G CHD material does not violate any community guidelines. Community
7
Standards, supra, FACEBOOK, https://www.facebook.com/communitystandards/. Rather,
8
Facebook and Zuckerberg have censored, flagged, and demoted CHD’s 5G-related posts in bad
9
faith and for pretextual reasons to conceal their true motives in advancing 5G deployment
10
globally, and suppressing any speech which increases 5G-“hesitancy,” here and abroad.
11
G.
No Affirmative Defense of CDA Section 230 Immunity.
12
288.
The Communications Decency Act (CDA) states: “No provider or user of an
13
interactive computer shall be treated as the publisher or speaker of any information provided
14
by another information content provider.” 47 U.S.C. § 230(c)(1). The affirmative defense of
15
Section 230 immunity has been broadly construed as to information provided by third parties
16
and hosted on Facebook. However, if an entity is “responsible, in whole or in part, for the
17
creation or development of information” that forms the subject matter of the lawsuit, it is itself
18
a content provider and is not protected. 47 U.S.C. § 230(f)(3).
19
289.
In publishing its false “warning label” and “fact-checks,” Facebook has acted,
20
and continues to act, both as an interactive computer service provider and as “content
21
provider.” Section 230(f)(3) defines an information content provider as “any person or entity
22
that is responsible, in whole or in part, for the creation or development of information provided
23
through the Internet or any other interactive computer service.” Under Ninth Circuit law, as to
24
content that a website service provider creates itself, or is responsible in whole or in part for
25
creating or developing, the website is also a content provider. Fair Housing Council v.
26
Roommates.com, LLC, 521 F.3d at 1162-63; Fraley v. Facebook, 830 F. Supp. 2d at 801-02.
27
Under the CDA, 47 U.S.C. § 230(f)(3), Facebook’s warning label and its other affirmative
28
content-development and creation far exceed “a publisher’s traditional editorial functions,”
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Batzel v. Smith, 333 F.3d 1018, 1031 n.18 (9th Cir. 2003), and far exceed that content-creation
2
of question-and-answer-sets which the Ninth Circuit found sufficient in the Roommates.com
3
case. See, e.g., Roommates.com, 521 F.3d at 1163 (Congress did not seek to immunize “the
4
creation of content.”) (emphasis added). Facebook has no immunity from liability for
5
actionable harms arising from its fraudulent course of conduct.
6
290.
47 U.S.C. § 230(c)(2)(A) grants immunity from civil liability to an interactive
7
computer service provider for “any action voluntarily taken in good faith to restrict access to or
8
availability of material that the provider or user considers to be obscene, lewd, lascivious,
9
filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material
10
is constitutionally protected.” (Emphasis added). Here, Facebook’s application of fact-
11
checking, demotion, and censorship against CHD are pretextual, and in truth are driven by
12
Zuckerberg’s ulterior profit motives and ideological interests, and government pressure and
13
benefits, rather than the vague catch-all for “otherwise objectionable” speech within
14
Facebook’s community guidelines. For all the reasons alleged herein, Facebook and
15
Zuckerberg have not acted in “good faith” with respect to CHD’s page, as required by 47
16
U.S.C. § 230(c)(2)(A).
17
H.
Section 230 Immunity Plus Pressure Equals State Action.
18
291.
There are very cogent reasons in law and public policy why some kind of
19
constitutional scrutiny must be triggered when legislators, through an immunity statute, such as
20
the Communications Decency Act (“CDA”) deliberately seek to induce private conduct that
21
would violate constitutional rights if state actors engaged in that conduct themselves.
22
292.
The U.S. Supreme Court has found state action in two cases where an immunity
23
statute (or its equivalent) was coupled with official pressure on a private actor to address a
24
specific issue: Skinner v. Ry. Labor Execs.' Ass'n,, 489 U.S. 602 (1989) and Bantam Books,
25
Inc. v. Sullivan, 372 U.S. 58 (1963). In Skinner, the Supreme Court held that a federal agency
26
regulation designed to induce private railroads to test their workers for drugs and alcohol
27
subjected a subsequent search by a private railroad to Fourth Amendment protections. The
28
regulation immunized the railroad from all state law liability, and the government had made
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plain its strong preference for testing. Accordingly, “the Government’s encouragement,
2
endorsement, and participation” “suffice to implicate the Fourth Amendment.” Skinner, 489
3
U.S. at 615-616.
4
293.
Just as the agency regulation in Skinner immunized from state law liability
5
railroads that administered specified tests, Section 230 immunizes from state law liability
6
platforms that censor “lewd, lascivious, filthy, excessively violent, harassing or otherwise
7
objectionable” material. Just as railway workers were not free to decline to submit to the tests,
8
so too CHD cannot decline to submit to Facebook censorship; in both cases, individuals who
9
refuse to comply can be excluded from service. And just as the government in Skinner had
10
made plain its “strong preference” for the testing, Section 230 and its legislative history make
11
plain the government’s strong preference for the removal of “offensive” content. Moreover, the
12
CDC, WHO, and Rep. Schiff have actively encouraged, endorsed, and participated in
13
Facebook’s conduct at issue here.
14
294.
In Bantam Books, supra, the Supreme Court held that informal governmental
15
pressure and threats can turn private-party conduct into state action. Bantam, 372 U.S. at 68. In
16
Bantam Books, a private bookseller had stopped selling certain books after receiving a letter
17
from state commissioners listing those books as objectionable and suggesting that the
18
bookseller might be referred to local prosecutors if he continued selling them. The court found
19
“state action.” Bantam, 372 U.S. at 72. The conceptual “bottom-line” is this: When
20
governmental pressure is combined with a statutory provision like Section 230, the result must
21
be state action. Immunity plus pressure has to trigger the Constitution’s restraints. This case
22
offers a paradigm of how government immunity (Section 230) plus pressure (Rep. Schiff) and
23
benefits and various forms of collaboration (CDC/WHO), should turn Facebook and
24
Zuckerberg’s private-party conduct into state action.
25
I.
The May 28, 2020 Executive Order.
26
295.
On May 28, 2020, President Donald J. Trump issued an Executive Order on
27
Preventing Online Censorship. The Executive Order provides, in pertinent part:
28
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Sec. 2. Protections Against Online Censorship. (a) [. . .] It is the
policy of the United States to ensure that, to the maximum extent
permissible under the law, this provision [47 U.S.C. § 230] is not
distorted to provide liability protection for online platforms that —
far from acting in “good faith” to remove objectionable content —
instead engage in deceptive or pretextual actions (often contrary to
their stated terms of service) to stifle viewpoints with which they
disagree. [. . .] When an interactive computer service provider
removes or restricts access to content and its actions do not meet
the criteria of [47 U.S.C. § 230] subparagraph (c)(2)(A), it is
engaged in editorial conduct. It is the policy of the United States
that such a provider should properly lose the limited liability shield
of subparagraph (c)(2)(A) and be exposed to liability like any
traditional editor and publisher that is not an online provider.
2
3
4
5
6
7
8
9
10
11
Executive Order on Preventing Online Censorship, Executive Orders, THE WHITE HOUSE
12
(May 28, 2020), https://www.whitehouse.gov/presidential-actions/executive-order-preventing-
13
online-censorship/.
14
296.
The Executive Order’s free expression principles are consistent with this lawsuit,
15
and its statement of the policy of the United States may be informative for the Court. But, as
16
set forth, supra, the Court need not rely upon the Executive Order to adjudicate this
17
controversy because CHD’s claims for relief are fully viable and warrant extraordinary relief
18
under existing authorities.
19
FIRST CAUSE OF ACTION
20
(FIRST AND FIFTH AMENDMENTS — BIVENS VIOLATIONS)
21
Defendants Facebook, Zuckerberg, Science Feedback, Poynter, and Does 1-20
22
297.
Paragraphs 1 through 252 are realleged and incorporated as if fully set forth
298.
Plaintiff seeks an implied private damages remedy against private defendants
23
24
herein.
25
who act jointly or in concert with federal government agencies or actors to deny Plaintiff’s
26
First Amendment speech and Fifth Amendment property rights. Davis v. Passman, 442 U.S.
27
228 (1979) (implied damages remedy under Fifth Amendment Due Process Clause); Bivens v.
28
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (Fourth
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Amendment). The private cause of action is implied under 28 U.S.C. § 1331 to vindicate
2
constitutional rights which would otherwise go unredressed. By analogy to 42 U.S.C. § 1983,
3
Plaintiff must show both (1) the deprivation of a right secured by the Constitution and laws of
4
the United States, and (2) that the deprivation was committed by a person acting under color of
5
[federal] law. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
6
299.
The purpose of Bivens is to deter individual federal officers from committing
7
constitutional violations, and the constitutional tort remedy against private entities is foreclosed
8
only where claimant has other effective remedies. Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
9
71 (2001); cf. Davis v. Passman, 442 U.S. at 245 (“For Davis, as for Bivens, it is damages or
10
nothing.”). Here, too, a private remedy should be implied because Plaintiff has no other
11
recourse to right the wrongs of all defendants, corporate and individual.
12
300.
The First Amendment protects Plaintiff’s rights of free speech and association.
13
Under the First Amendment, Americans have the right to hear all sides of every issue and to
14
make their own judgments about those issues without government interference or limitations.
15
Content-based restrictions on speech are presumptively unconstitutional, and courts analyze
16
such restrictions under strict scrutiny. It is axiomatic that public agencies such as the CDC and
17
WHO could not themselves directly censor or issue a prior restraint upon Plaintiff’s online
18
speech. See, e.g., Freedman v. Maryland, 380 U.S. 51, 59 (1965) (motion picture exhibition
19
censoring panel could prohibit screening of films only if it assured exhibitor “that the censor
20
will, within a specified brief period, either issue a license or go to court to restrain showing the
21
film”); Speiser v. Randall, 357 U.S. 513, 526 (1958) (“Where the transcendent value of speech
22
is involved, due process certainly requires . . . that the State bear the burden of persuasion to
23
show that the appellants engaged in criminal speech.”). So, here, the judicial branch must
24
affirm a bedrock principle of liberty that governmental agencies cannot legally “sub-contract”
25
or “privatize” the role of public censor to Facebook as an end-run around the Constitution.
26
Facebook’s actions, taken “under color of” federal law, Villegas v. Gilroy Garlic Festival
27
Ass'n, 541 F.3d 950, 954 (9th Cir. 2008) (en banc), constitute a violation of Plaintiff’s
28
constitutional free speech rights.
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301.
Defendants’ deprivation of Plaintiff’s federal rights is “fairly attributable” to the
2
government, Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982), as it was taken with
3
significant encouragement from, and in close consultation with, governmental agencies and
4
actors. Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002). Ultimately, joint action exists
5
when the government has “‘so far insinuated itself into a position of interdependence with [the
6
private entity] that it must be recognized as a joint participant in the challenged activity.’”
7
Gorenc v. Salt River Project Agric. Improvement & Power Dist., 869 F.2d 503, 507 (9th Cir.
8
1989) (emphases added). Defendants’ misconduct is a far cry from “merely hosting speech by
9
others.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019); Fed. Agency
10
of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107, 1124-1126 (N.D. Cal. 2020) (supplying
11
information to the State alone does not amount to state action).
12
302.
Specifically, the corporate and individual defendants have acted in concert with
13
Rep. Schiff, federal officials at the CDC and the CDC Foundation, and under the CDC’s
14
express consent, the WHO, a United Nations specialized agency, to deprive Plaintiff of its
15
constitutional free expression rights. At all times relevant hereto, the United States was a
16
member of the WHO. Under Article 71 of its Constitution, the WHO may only consult and
17
cooperate with non-governmental national organizations with the consent of the Government
18
concerned. Basic Documents, WORLD HEALTH ORGANIZATION, supra, https://apps.who.int/
19
gb/bd/pdf_files/BD_49th-en.pdf#page=1 (emphasis added).
20
303.
Facebook willfully participated in joint action with Rep. Schiff, CDC and CDC
21
Foundation, and/or WHO officials or their agents to enforce CDC and WHO policies through
22
Facebook’s signature algorithms and machine learning to define, identify, label as “false news”
23
and/or censor Plaintiff’s speech with respect to vaccine-related speech. For Bivens purposes,
24
the WHO must be recognized as a public entity, particularly when its charter requires official
25
consent for its involvement with Facebook.
26
304.
Rep. Schiff’s February 14, 2019 public letter to Zuckerberg deployed the term
27
“vaccine misinformation” as it has been used by the CDC and WHO, as a substantive standard
28
by which to censor, flag, or demote any expression of skepticism toward government or
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pharmaceutical industry pronouncements about vaccine safety or efficacy, regardless of its
2
truth. Rep. Schiff also forcefully encouraged Facebook to refer users to “authoritative” sources
3
of information, i.e., the CDC and/or WHO.
4
305.
On March 7, 2019, with flagrant disregard for CHD’s nine-page letter rebuttal,
5
Facebook publicly cited the CDC and WHO as the sources of Facebook’s initiative to identify
6
and “take action against verifiable vaccine hoaxes,” including removing such content from its
7
platform. Facebook also identified those governmental agencies as the sources of affirmative
8
information which Facebook would instead provide to its members, by posting that content at
9
the top of results for related searches, on pages discussing the topic, and on invitations to join
10
groups about the topic. Combatting Vaccine Misinformation, FACEBOOK, supra,
11
https://about.fb.com/news/2019/03/combatting-vaccine-misinformation/. The same day that
12
Facebook published its Warning Label on CHD’s page, the WHO publicly boasted that
13
Facebook’s effort was the product of “several months of discussion” between the two. Vaccine
14
Misinformation: Statement by WHO Director-General on Facebook and Instagram, supra,
15
https://www.who.int/news-room/detail/04-09-2019-vaccine-misinformation-statement-by-who-
16
director-general-on-facebook-and-instagram (emphasis added). Unlike Fed. Agency of News
17
LLC v. Facebook, Inc., 432 F. Supp. 3d at 1126, where no plausible "meeting of the minds"
18
was alleged, Facebook’s consultation and joint action with the CDC and WHO predates and
19
provides the template by which Facebook has injured Plaintiff, and strongly suggest extensive
20
willing collaboration between them toward that end..
21
306.
Moreover, defendants integrated CDC and WHO definitions of “vaccine hoax”
22
into the algorithms and machine learning by which they have identified CHD’s content, which
23
is often flagged merely because it is critical of those same agencies as “biased”, “unreliable”,
24
and “out-of-date.” Science Feedback’s “fact-checker” responses merely cite to those flawed
25
CDC studies of which Plaintiff is justly critical. Essentially, the government furnished critical
26
information to Facebook, which Facebook then willfully used to effectuate its misinformation
27
and agitprop scheme. Defendants’ behavior qualifies as “state action” under the joint action
28
test due to their active cooperation and interdependence with the CDC and WHO. On the
114
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public record, there is a “sufficiently close nexus” or symbiosis between the federal
2
government and the challenged actions of defendants that the actions of the latter may be fairly
3
treated as those of the government itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345,
4
351 (1974). The CDC’s and WHO’s open and extensive coordination with Facebook shows
5
“state action” in furtherance of an agreement between the government and a private party for
6
purposes of Plaintiff’s Bivens claim.
7
307.
Rep. Schiff also acted “under color of federal law” in issuing his pointed request
8
to Facebook to censor and remove “vaccine misinformation” from its platform. Thus, Rep.
9
Schiff’s conditional notice to remove Facebook’s Section 230 immunity also constitutes
10
“significant encouragement, either overt or covert, that the [private actor's] choice must in law
11
be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
12
308.
It is well-established that, as a general rule, the government “may not suppress
13
lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition,
14
535 U. S. 234, 255 (2002). Facebook has closely coordinated with government actors in the
15
design of its aims, and the technical means by which Facebook applies public agency
16
definitions and literature to accomplish their jointly-held goals: to identify, warn against,
17
purportedly “rebut,” and censor so-called “vaccine hoax” speech. Facebook’s actions in
18
censoring CHD’s protected speech amount to state action for purposes of the First
19
Amendment. See, e.g., Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983).
20
309.
In the typical case raising a state action issue, a private party has taken the
21
decisive step that caused the harm to the Plaintiff, and the question is whether the State was
22
sufficiently involved to treat that decisive conduct as state action. Nat'l Collegiate Athletic
23
Ass'n. v. Tarkanian, 488 U.S. 179, 192, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988). Beyond the
24
public record cited supra, the missing pieces of official “involvement” are within the Facebook
25
defendants’ possession, custody, and control. Plaintiff requires judicial process to obtain
26
defendants’ records and recollections of the “who, what, when, where, why, and how” of
27
Facebook’s collaboration with Rep. Schiff, the CDC and WHO, the CDC Foundation, and/or
28
others under their supervision or control, to design, implement, and monitor Facebook’s
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“vaccine misinformation” algorithm for identifying anti-CHD content, and/or to supervise or
2
monitor Facebook “fact-checkers” opposition articles.
3
310.
Assessing whether conduct by Facebook and Zuckerberg constitutes action under
4
“color of law” is a “necessarily fact-bound inquiry,” addressed on a case-by-case basis. Lugar
5
v. Edmondson Oil Co., Inc., 457 U.S. at 939; see also Skinner v. Ry. Labor Execs.' Assoc., 489
6
U.S. at 614 (holding that courts consider the totality of the circumstances to determine whether
7
conduct amounts to state action). There is no rigid formula for assessing whether there is a
8
sufficiently close nexus between the State and the challenged private conduct. “Only by sifting
9
facts and circumstances can the nonobvious involvement of the State in private conduct be
10
attributed its true significance.” Burton v. Wilminton Parking Auth., 365 U.S. at 722.
11
311.
Here, there are several overlapping features in the public record, which is the “tip
12
of the iceberg.” First, the CDA Section 230 immunity statute plus the “informal policy” of
13
coercion and encouragement by which Rep. Schiff, the WHO (with express consent of the
14
CDC), and the CDC itself induced Facebook’s censorship rises to the level of state action
15
under the Skinner and Bantam Books line of cases. Second, the CDC and CDC Foundation,
16
WHO, Facebook and Zuckerberg have formed a “symbiotic relationship” with one another,
17
from which the government benefits, and whose division of labor is that Facebook serves as
18
those public agencies’ “content manager” on its platform. In other nonobvious ways, those
19
government agencies and Facebook “somehow reached an understanding,” or quid pro quo, to
20
censor and demonetize CHD’s page. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152
21
(1970) (conspiracy between private restaurant and policeman to arrest plaintiff schoolteacher
22
following her sitdown strike). “The mere fact that [Facebook] might have been willing to act
23
without coercion makes no difference if the government did coerce.” Carlin Communications
24
Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291, 1295 (9th Cir. 1987), cert. denied, 483
25
U.S. 1029 (1988).
26
312.
Facebook and the other defendants violated Plaintiff’s First Amendment rights
27
by labeling CHD’s content “False Information,” and taking other steps effectively to censor or
28
block content from users. With a mix of these and other nonobvious forms of governmental
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coercion and encouragement, Facebook took these actions against Plaintiff in an effort to
2
silence and deter its free speech solely on account of their viewpoint. The case raises an urgent
3
wrong that will go unredressed absent a judicial remedy fitted to the high stakes of speech
4
suppression in a free society.
5
313.
In addition, the Fifth Amendment provides that “[n]o person shall be . . .
6
deprived of . . . property, without due process of law; nor shall private property be taken for
7
public use, without just compensation.” U.S. CONST. amend. V. In May 2019, Facebook
8
permanently disabled the “donate” button on CHD’s Facebook page, for and in which action
9
Facebook received significant encouragement from the government. Cf. Del's Big Saver Foods,
10
Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1346 (7th Cir. 1986) (“A state cannot avoid its
11
obligations under the due process clause by delegating to private persons the authority to
12
deprive people of their property without due process of law.”). And, as Rep. Schiff requested,
13
Facebook also refused to carry CHD’s advertising of its fundraising campaigns.
14
314.
Facebook misrepresented to CHD as its rationale that CHD had violated its
15
fundraising terms. But, in actuality, Facebook took these punitive actions to squelch CHD’s
16
viewpoint by cutting off its donations. Defendants’ actions amount to an unlawful deprivation
17
or “taking” of Plaintiff’s property interests in its own fundraising functions.
18
315.
“[T]he existence of a property interest is determined by reference to ‘existing
19
rules or understandings that stem from an independent source such as state law.’” Phillips v.
20
Washington Legal Foundation, 524 U.S. 156, 164 (1998) (quoting Board of Regents of State
21
Colleges v. Roth, 408 U.S. 564, 577 (1972)). Certainly, by that measure, the funding button is a
22
“thing of value” to CHD as its beneficial owner, and a valid property interest by means of
23
which CHD raised $41,241 in user donations from January to May 2019 alone. See, e.g.,
24
Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910) (Holmes, J.) (“the question
25
is what has the owner lost, not what has the taker gained”). Indeed, it may be said that
26
Facebook’s fundraising function is as much a lifeblood for CHD as it is for many other
27
501(c)(3) organizations, and that the power to remove it at the government’s behest is the
28
power to destroy these charitable organizations.
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316.
Facebook violated Plaintiff’s Fifth Amendment rights by confiscating its
2
fundraising functions under color of law without just compensation or due process. Facebook
3
took these actions against CHD in order to snuff out CHD’s ability to raise funds, solely on
4
account of CHD’s viewpoint. Defendants’ removal of the donate button is conduct suggesting
5
that CHD is unworthy of monetary contributions and, thus, the object of special opprobrium,
6
all damaging to CHD’s reputation and its ability to sustain itself. This represents another
7
urgent wrong that will go unredressed absent a judicial remedy fitted to the high stakes of
8
officially sponsored viewpoint-suppression in a free society.
9
317.
Additionally, to establish a First Amendment retaliation claim, Plaintiff must
10
show that: (1) it engaged in constitutionally protected activity; (2) the defendants’ resulting
11
actions would chill a person of ordinary firmness from continuing to engage in the protected
12
activity; and, (3) the protected activity was a substantial or motivating factor in the defendants’
13
conduct. See Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006); Skoog v.
14
County of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006) (plaintiff stated a claim for First
15
Amendment retaliation by asserting that a police officer had obtained and executed a search
16
warrant against him to punish him for filing a lawsuit against another police officer).
17
318.
On August 17, 2020, CHD filed this action against Facebook and Zuckerberg.
18
On or about August 31, 2020, CHD received notice that Facebook would modify the parties’
19
contractual term of service § 3.2, effective October 1, 2020, to read: “We also can remove or
20
restrict access to your content, services, or information if we determine that doing so is
21
reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”
22
319.
Essentially, the Facebook-CHD relationship has morphed over three stages:
23
(1) the pre-2019 one in which Facebook did not interfere at all with CHD’s truthful content;
24
(2) the 2019 through August 17, 2020 one in which Facebook damaged CHD through flags,
25
labels, and “fact-checks”; and (3) the post-August 17, 2020 one in which Facebook, still acting
26
under “color of law,” has damaged CHD in new and other ways by removing CHD's content or
27
restricting accessing to the material to CHD principals. Section 3.2 purports to allow Facebook
28
to do that simply to “avoid adverse legal or regulatory impacts to Facebook.” And that is
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precisely what Facebook has now done under its new § 3.2 in the ten weeks since the action
2
was filed. This third paradigm states a clear case of retaliation by Facebook in the context of
3
CHD’s protected activity in filing this action, at least in part because the removal of this CHD
4
content and the restriction of access to it, were not actions that Facebook deemed authorized
5
under its prior terms.
6
320.
Close proximity in time between a protected activity and an adverse action alone
7
establish a prima face case of retaliatory causation. Facebook’s use of its newly-amended § 3.2
8
so close on the heels of CHD’s lawsuit to demote or block CHD’s previously “fact-checked”
9
content is clear evidence that Facebook (in its role as a state actor) is also retaliating for CHD’s
10
protected conduct in filing the action.
11
321.
Plaintiff needs process to ascertain the full extent to which Facebook has
12
demoted or blocked its posts since the filing of this action, and that Facebook has taken these
13
steps, also, under “color of law.” So far as Plaintiff can establish, it appears that, since August
14
17, 2020, Facebook has retaliated for CHD’s protected activity by removing entirely at least
15
six previously “fact-checked” CHD posts, which are no longer visible as of November 8, 2020
16
at the latest: (1) Epoch Times CDC vaccines/autism article (factchecked on or about March 13,
17
2020; (2) The Jewish Voice Luc Montagnier COVID article (fact-checked on or about April
18
16. 2020, but no longer visible); (3) RFK, Jr. Merck/Gardasil presentation (fact-checked on or
19
about May 15, 2020, but no longer visible); (4) Brian Hooker vaxxed/unvaxxed article (fact-
20
checked on or about May 28, 2020, but no longer visible); (5) Decreased Infant Deaths (fact-
21
checked on or about June 20, 2020, but no longer visible); and (6) RFK, Jr./Dershowitz Debate
22
(posted on or about July 23, 2020, but no longer visible).
23
322.
"[The plaintiff] must ultimately prove that [the defendant's] desire to cause the
24
chilling effect was a but-for cause of [the defendant's] action." Dietrich v. John Ascuaga's
25
Nugget, 548 F.3d 892, 900-01 (9th Cir. 2008) (citation omitted); see also Vinatieri v. Mosley,
26
787 F. Supp. 2d 1022, 1033 (N.D. Cal. 2011) aff'd, 532 Fed. Appx. 762 (9th Cir. 2013).
27
“Because direct evidence of retaliatory intent rarely can be pleaded in a complaint, allegation
28
of a chronology of events from which retaliation can be inferred is sufficient to survive
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dismissal.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Pratt v. Rowland, 65 F.3d
2
802, 808 (9th Cir. 1995) ("timing can properly be considered as circumstantial evidence of
3
retaliatory intent"). It is also significant that, despite having removed the purportedly
4
“harmful” content, Facebook has not restored CHD’s fundraising tools. This suggests that
5
CHD’s posts were pretextually fact-checked in order to justify demonetization in the first
6
place.
7
SECOND CAUSE OF ACTION
8
(LANHAM ACT VIOLATIONS — 15 U.S.C. § 1125(A))
9
Defendants Facebook, Zuckerberg, Science Feedback, Poynter, and Does 1-20
10
323.
Paragraphs 1 through 1272 are realleged and incorporated as if fully set forth
324.
The elements of a false promotion claim under the Lanham Act, 15 U.S.C.
11
12
herein.
13
§ 1125(a)(1)(B), are: (1) in an advertisement or promotion, defendants made false statements
14
of fact about its own or another’s services; (2) the promotion actually deceived or has the
15
tendency to deceive a substantial segment of their audience; (3) such deception is material, in
16
that it is likely to influence the purchasing decision; (4) defendants caused their falsely
17
promoted services to enter interstate commerce; and (5) Plaintiff has been or is likely to be
18
injured as the result of the foregoing either by direct diversion of sales from themselves to
19
defendants, or by lessening of the goodwill which its services enjoy with the buying public.
20
Rice v. Fox Broad Co., 33 F.3d 1170, 1180 (9th Cir. 2003). Facebook’s warning label and
21
“fact-checks” on CHD’s page violate the Lanham Act in that these are (1) commercial speech;
22
(2) by defendants who or whose privities are in commercial competition with Plaintiff; (3) for
23
the purpose of influencing consumers to buy defendants’ goods or services, or to lessen the
24
goodwill which CHD’s services enjoy with the contributing public; and (4) disseminated
25
sufficiently to the relevant purchasing public to constitute “promotion” within that industry.
26
Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999).
27
Facebook and the individual defendants made, authored, and published the warning label and
28
“fact-checks” on CHD’s page in order to deter Plaintiff’s followers and other consumers from
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listening to, trusting, and relying on Plaintiff’s content, and donating or contributing to
2
Plaintiff. By warning consumers instead to “go to CDC.gov” for “reliable and up-to-date
3
[vaccine] information,” defendants intended to persuade consumers instead to follow the
4
CDC’s recommendations to get the vaccines produced by its major advertisers, Merck, GSK,
5
Sanofi, and Pfizer, who buy $1 billion per annum in advertisements from Facebook.
6
325.
The Lanham Act is not strictly limited to conduct that is unfair to a direct
7
competitor, if defendant is affiliated with a competitor. Here, it suffices that Facebook is
8
engaged in promoting competitive products through its pharmaceutical manufacturer
9
advertisers, and competitive services through its affiliation with the CDC and WHO. See, e.g.,
10
Grasshopper House, LLC v. Clean & Sober Media LLC, 394 F. Supp. 3d 1073 (C.D. Cal.
11
2019) (finding liability where adverse reviewer was allied with competitor). Facebook’s
12
intention to lessen the goodwill which CHD’s services enjoy is manifest from its false
13
“warning label” and “fact-checks” and its disabling of CHD’s fundraising function and
14
advertising. Plaintiff has suffered a competitive injury under the Lanham Act.
15
326.
The false representations need not be made in a “classic advertising campaign,”
16
but may consist instead of more informal types of “'promotion.” Coastal Abstract Serv., Inc. v.
17
First Am. Title Ins. Co., 173 F.3d at 735. Facebook’s “warning label” and “fact-checks” are
18
promotional in that these are all part of Facebook’s ongoing “vaccine misinformation” public
19
relations campaign. See, e.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 77 (1983)
20
(mailing of informational pamphlets by non-profit organization can be classified as
21
commercial speech). Facebook’s “community initiatives” are promotional by definition
22
because Facebook’s business model is, always and in all things, to manufacture users’ “trust”
23
in Facebook – so Facebook can collect, manipulate, and market more of those trusting users’
24
data. “Facebook’s business model [] rests on the need to keep consumers engaged in its
25
services on the one hand and the need to monetize the data it gathers by targeting those users
26
with new services and advertising on the other. [. . .] Over the long term, Facebook’s business
27
model must evolve to center around trust, which means making user privacy and data security
28
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as important as monetization.” Adam Burt, Can Facebook Ever Be Fixed?, HARVARD
2
BUSINESS REVIEW (April 8, 2019), https://hbr.org/2019/04/can-facebook-ever-be-fixed.
3
327.
Facebook and CHD may reasonably be considered commercial competitors with
4
respect to the messaging regarding vaccines and 5G that they promulgate to Facebook users.
5
That Facebook views CHD as a competitor is demonstrated by its comprehensive, carefully
6
planned and aggressive campaign to falsely label CHD’s website content, to marginalize and
7
stigmatize CHD, and to subject it to severe commercial damage by cutting off CHD’s
8
advertising and deactivating its funding button. CHD depends on donor funds for its survival.
9
Facebook — possessing commercial power which most businesses do not have with respect to
10
their competitors — has engaged in the ultimate form of unfair commercial competition by
11
unilaterally cutting off a major source of CHD’s funding. This particular censorship technique
12
is integrally linked with Facebook’s false warning labels and false “fact-checks” which
13
mischaracterize CHD’s website content. All of these devices are part of Facebook’s false
14
advertising campaign directed against CHD for the overarching purpose of stigmatizing CHD’s
15
messages regarding vaccine transparency, oversight, and informed consent, diminishing
16
CHD’s ability to reach viewers and to advertise, and ultimately rendering it unable to sustain
17
itself financially. The methods are false advertising in combination with other forms of
18
censorship; Facebook’s goal is the silencing of CHD, and, ultimately, its extinction.
19
328.
Facebook has engaged in unfair competition through the false and misleading
20
nature of the content it has posted concerning CHD’s content on its website concerning the
21
potential dangers of vaccines and 5G. Facebook has conveyed to viewers that CHD’s content
22
and information concerning these dangers is false. As discussed in some detail herein, CHD’s
23
content is not false, and Facebook’s content labelling it as such is false and misleading in
24
violation of the Lanham Act.
25
329.
There are further aspects of Facebook’s warning labels affixed to CHD’s content
26
that render them false and misleading. To the extent that Facebook has labelled some of CHD’s
27
material as “Partly False,” this is inherently misleading. To label something as “partly false” is
28
to concede that the material is also “partly true.” Misleadingly, Facebook’s “partly false” label,
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which focuses only on the supposed falsity of CHD’s content, omits to specify the information
2
that is true, does not distinguish between the true and allegedly false information, and does not
3
attempt to indicate the relative proportion between the admittedly true information and the
4
allegedly false content. Instead, the essential message conveyed by CHD’s warning labels is
5
that all of CHD’s material is false. Facebook has treated as “false” even information that it
6
implicitly concedes is true — and, like all of CHD’s content, even the concededly true content
7
is subject to demotion by Facebook, prevented from obtaining advertising, and subject to
8
Facebook’s blanket deactivation of CHD’s funding button. At the very least, Facebook’s
9
deliberate failure to distinguish in its messaging between what it alleges is “false” or “partly
10
false” in CHD’s posts and what it concedes is true reveals quite literally a reckless disregard
11
for truth on Zuckerberg’s and Facebook’s part in their campaign against CHD.
12
330.
Additionally, to the extent that CHD's vaccine safety posts raise matters of open
13
scientific dispute not susceptible of definite resolution or characterization as either “true” or
14
“false, Facebook has misled users by conveying the impression that these issues are not, in
15
fact, matters for open debate, that Facebook alone is capable of discerning “truth” in these
16
matters, that its (and CDC’s and WHO’s) conclusions alone are true, and that CHD’s materials
17
are not only false, but should not even be read or considered. Facebook’s touting of its use of
18
“fact-checkers” underscores its misleading message that open or debatable scientific issues
19
concerning vaccines and 5G are matters of resolved fact. It is not only the verbal content of
20
Facebook’s messaging that conveys this message. Its demotion of CHD’s content, cutting off
21
of CHD’s advertising and the deactivation of CHD’s funding mechanism collectively convey
22
that CHD’s content does not merit the viewership and the financial support that, before
23
Facebook’s censorship, flowed from such viewership. Facebook’s stance, and its false certainty
24
regarding open scientific controversies, is contrary to historical experience, which is replete
25
with complex scientific issues that are never definitively resolved, but may be subject to
26
continuous scientific debate and reevaluation. Indeed, what appears at a given time to represent
27
the scientific “consensus” or to reflect the weight of “accepted” scientific authority is all too
28
often subject to reevaluation and ultimate reversal in favor of a revised and very different
123
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“consensus.” Facebook’s essential message that the issues concerning the efficacy and safety
2
of vaccines are closed and settled is false and misleading. It has used this false message in an
3
illegal scheme to damage CHD commercially, and ultimately to attempt to destroy it.
4
331.
The misleading nature of Facebook’s campaign against CHD has another
5
element: it fails in its messaging to disclose its own conflicts of financial interest that inform
6
and propel its false labelling of CHD’s content. Thus, Facebook’s warning labels against CHD
7
fail to warn users of Facebook’s and Zuckerberg’s own extensive forays in the Vaccine and 5G
8
industries, the vast extent of advertising on Facebook engaged in by major pharmaceutical
9
companies, or that such advertising has steadily increased each year since 2017. Nor is any
10
disclosure made to viewers concerning the pressure exerted by powerful politicians, prominent
11
among them Rep. Schiff, to have Facebook mount a campaign against alleged CHD
12
misinformation, or Facebook and Zuckerberg’s entanglements with the CDC, lest Facebook’s
13
CDA Section 230 immunity be jeopardized or lost — an immunity which Facebook considers
14
vital to its current business model.
15
332.
Statements on websites are generally available to the public at large, and satisfy
16
the commercial speech requirement. In addition, defendants published the “warning label” and
17
“fact-checks” as part of its own promotional campaign to lobby government officials to
18
preserve its immunity under the CDA, and to persuade consumers that its content-management
19
process warrants their continued trust and patronage.
20
333.
The “warning label” and “fact-check” deceptions are “material” in that these are
21
likely to lessen the goodwill that CHD’s services enjoy with the public and to influence
22
consumers’ vaccine purchasing decisions. Cook, Perkiss, and Liehe, Inc. v. N. Cal. Collection
23
Serv., 911 F.2d 242, 244 (9th Cir. 1990). By affixing the “warning label” and “fact-checks” to
24
CHD’s Facebook page where these have been viewed hundreds of thousands of times since
25
September 4, 2019 by members of Facebook’s global community, defendants effectively
26
disseminated their false statements widely within the relevant purchasing public.
27
28
334.
As alleged more specifically infra, on or about September 4, 2019 and
continuously since then, defendants Facebook and Zuckerberg have made, authored, and/or
124
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published and circulated false and unprivileged statements about CHD in the form of
2
Facebook’s Warning Label on CHD’s Facebook page. A warning label is, by definition, the
3
disclosure of facts concerning dangers inherent in the use of a product or service. Black’s Law
4
Dictionary 1421 (5th ed. 1979) (“The purpose of a ‘warning’ is to apprise a party of the
5
existence of danger of which he is not aware to enable him to protect himself against it[.]”).
6
Facebook has perverted the consumer-safety protection of a manufacturer’s “duty to warn” into
7
a license to denigrate true speech where the truth conflicts with Facebook’s economic interests,
8
business model, and/or relations with government, or Zuckerberg’s own perception of what is
9
true or scientific fact.
10
335.
Facebook’s warning label concerning CHD is false on its face and by clear
11
implication. Defendants knew that their warning label was untrue and perpetuated it to divert
12
users from CHD’s Facebook page to the CDC’s website. This was one of the tactics in
13
defendants’ RICO fraud enterprise to damage CHD financially and marginalize it’s health
14
advocacy work, and unjustly enrich themselves through their continued receipt of billions of
15
dollars in pharmaceutical advertising revenue, and billions more in future vaccine and 5G
16
network-related profits.
17
336.
Defendants’ false statements have already harmed Plaintiff and likely will harm
18
it in the future, especially within the large community of CHD followers, and among countless
19
others who wish to be informed of true facts about vaccine safety risks. CHD’s Facebook page
20
is both reliable and up-to-date, within the common meaning of those terms, as demonstrated by
21
the specific content at issue here, and the internal processes by which CHD fact-checks and
22
cite-checks all its posts, labels them unmistakably as articles or editorials, and updates content
23
multiple times a week. Plaintiff has been seriously damaged as a direct and proximate cause of
24
the falsity of the defendants’ warning label, in an amount to be determined at trial. The false
25
statement attributes conduct, characteristics, and conditions incompatible with the proper
26
exercise of Plaintiff’s trade and professional duties. The false statements were intended to hold
27
Plaintiff up to hatred, distrust, contempt, aversion, ridicule, and disgrace in the minds of a
28
substantial number in that community, and were calculated to harm, and have harmed their
125
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business relationships and goodwill, and deterred others from associating or dealing with
2
Plaintiff. Defendants’ warning label constitutes egregious conduct constituting malice.
3
Defendants’ acts were willful and malicious. As such, in addition to compensatory damages
4
and/or presumed damages, Plaintiff demands punitive damages relating to defendants’ making
5
of the above-referenced false statements and other willful misconduct, in an amount to be
6
determined at trial.
7
337.
California defamation law provides a reference point for establishing defendants’
8
false promotion liability for willfully publishing its false “warning label” on Plaintiff’s page:
9
(1) defendants published the statements; (2) the statements were about Plaintiff; (3) they were
10
false; and (4) defendants failed to use reasonable care to determine the truth or falsity. CAL.
11
CIV. CODE § 45 (defining the tort of libel as a “writing” or “fixed representation,” which
12
exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be
13
shunned or avoided, or which has a tendency to injure him in his occupation”) (emphasis
14
added); Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 450, 470 (2012).
15
Where Plaintiff is a public figure, the speech concerns a matter of public concern, and
16
defendants are media publishers, then Plaintiff must prove that defendants acted with “actual
17
malice.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 14 (1990). Milkovich left open the
18
question whether, in the case of a non-media publisher defendant, Plaintiff must show only that
19
defendants did not act with reasonable care “in checking on the truth or falsity of the
20
information before publishing it.” Carney v. Santa Cruz Women Against Rape, 221 Cal. App.
21
3d 1009, 1016 (1990). By contrast, a public figure Plaintiff suing a media publisher defendant
22
must prove that defendant acted with “actual malice,” which requires a showing that a
23
statement was made “with knowledge that it was false or with reckless disregard of whether it
24
was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (the “New York
25
Times” standard).
26
338.
Under California law, defamation is “the intentional publication of a statement of
27
fact which is false, unprivileged, and has a natural tendency to injure or which causes special
28
damages.” Gilbert v. Sykes, 147 Cal. App. 4th 13, 27 (2007). Facebook and Zuckerberg
126
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“published” their Warning Label on CHD’s Facebook page by inserting that “writing . . . or
2
other fixed representation to the eye” in a place of prominence of the page where it appears
3
every time a user opens the page, except where that user has previously seen it and deleted it.
4
California recognizes two types of libel (CAL. CIV. CODE § 45a): libel per se, which is
5
defamatory on its face, when read in context, and libel per quod, which a reasonable reader
6
would be able to recognize only by knowledge of specific facts and circumstances extrinsic to
7
the publication. Libel per se permits recovery of general damages, including reputational harm
8
and punitive damages, while libel per quod requires proof of “special damages” which are
9
defined narrowly to encompass only economic damages. CAL. CIV. CODE § 48a; Gomes v.
10
Fried, 136 Cal. App. 3d 924, 939 (1982).
11
339.
The Second Restatement of Torts defines the “context” of a statement to “include
12
all parts of the communication that are ordinarily read with it.” RESTATEMENT (2D) OF TORTS
13
§ 563(d). For example, “the entire contents of a personal letter are considered as the context of
14
any part of it because a recipient of the letter ordinarily reads the entire communication at one
15
time.” Id.; Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (Ninth Circuit adopts the
16
Second Restatement of Torts’ distinction between “context” and “extrinsic circumstance”).
17
Defendants’ defamatory statement must be read and considered in the context of the other
18
content of CHD’s Facebook page where it appears, and to which it refers expressly and by
19
necessary implication.
20
340.
Here, the context in which Facebook’s Warning Label on CHD’s page would
21
ordinarily be seen and read includes: CHD’s own mission statement on that same page that
22
vaccine safety should be taken away from the CDC; CHD’s message, “Read about CDC &
23
WHO corrupt financial entanglements with vaccine industry, childrenshealthdefense.org/cdc-
24
who”; and that context incorporates by reference numerous articles on CHD’s page which call
25
out and criticize the CDC’s continued adherence to its “all vaccines for all children” policy.
26
See, e.g., CDC Corruption, Deceit, and Cover-Up; CDC’s Vaccine “Science”— A Decades
27
Long Trail of Trickery; Why You Can’t Trust the CDC on Vaccines; CDC and WHO Corrupt
28
Financial Entanglements with the Vaccine Industry; Dr. Brian Hooker’s Official Statement
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Regarding Vaccine Whistleblower William Thompson; CDC & FDA Committee Members
2
Have Financial Conflict of Interest with Vaccine Pharmaceuticals; OSC Calls for Further
3
Review of Whistleblower Disclosures on Zika Testing; CDC Spider Letter; CDC: Off Center;
4
Real-Life Data Show that the CDC Vaccine Schedule is Causing Harm; Don’t Fall for the
5
CDC’s Outlandish Lies About Thimerosal; CDC and WHO Corrupt Financial Entanglements
6
with the Vaccine Industry; CDC Lies About, and Media Repeats, Risk of Dying from Measles;
7
CDC’s ‘Universal’ Recommendations for Infant Hep B Vaccine Not Based on Science, But
8
Assumptions; CDC’s Infant Hep B Vaccine Recommendations—No Proof of Safety? See
9
Children’s Health Defense page, FACEBOOK,
10
https://www.facebook.com/ChildrensHealthDefense (last visited Aug. 15, 2020); Knievel v.
11
ESPN, 393 F.3d at 1076-77 (considering surrounding web pages under the incorporation by
12
reference doctrine). But, Plaintiff need not prove that the CDC is nefarious to make its point
13
that the views of CHD are being unfairly misrepresented and censored, to the detriment of the
14
public which deserves to be able to consider alternative views and make up its own mind.
15
341.
“This page posts about vaccines.” Under California law, Plaintiff must show
16
that the false statement was made “of and concerning” them, either by name or by “clear
17
implication.” Ferlauto v. Hamsher, 74 Cal. App. 4th 1294, 1404 (1999). The specific reference
18
requirement is clearly met here as to CHD as an organization — by the text of the first
19
sentence (“This page”), by its large bolded font in the original, and, by its placement at the top
20
of CHD’s Facebook page. Libel exists where the words used can be shown to have referred to
21
Plaintiff, and to have been so understood. Vedovi v. Watson & Taylor, 104 Cal. App. 80, 83
22
(1930).
23
342.
“When it comes to health, everyone wants reliable, up-to-date information.”
24
This sentence, read alone, is undoubtedly true. But, it tees up the falsity of the next sentence
25
with which it should be read. “The publication in question […] must be read as a whole in
26
order to understand its import and the effect that it was calculated to have on the reader[.]”
27
Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123, 1131 (1985). The court applies a
28
“totality of the circumstances test” and “puts itself in place of an average reader [to] determine
128
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1
the natural and probable effect of the statement.” Bently Reserve LP v. Papaliolios, 218 Cal.
2
App. 4th 418, 427-28 (2013).
3
343.
Merriam-Webster’s Dictionary defines the adjective “reliable” as “suitable or fit
4
to be relied on; dependable.” Reliable, Merriam-Webster.com, https://www.merriam-
5
webster.com/dictionary/reliable (last visited Aug. 15, 2020). Merriam-Webster’s Thesaurus
6
lists synonyms for “reliable” to include “true, trustable, trusty, trustworthy, tried-and-true,
7
good, responsible, safe, secure, sure.” Reliable, Merriam-Webster.com, Thesaurus,
8
https://www.merriam-webster.com/thesaurus/reliable (last visited Aug. 15, 2020). Merriam-
9
Webster’s Dictionary defines the adjective “up-to-date” as “(1) extending up to the present
10
time; including the latest information. (2) abreast of the times; modern.” Up-to-date, Merriam-
11
Webster.com, https://www.merriam-webster.com/dictionary/up-to-date (last visited Aug. 15,
12
2020). Merriam-Webster’s Thesaurus adds the definition “having information especially as a
13
result of study or experience,” and lists synonyms for “up-to-date” which include
14
“contemporary, current, modern, new, present-day, state-of-the-art, up-to-the-minute,
15
informed, knowledgeable, well-informed.” Up-to-date, Merriam-Webster.com, Thesaurus,
16
https://www.merriam-webster.com/thesaurus/up-to-date (last visited Aug. 15, 2020).
17
344.
“The Centers for Disease Control (CDC) has information that can help
18
answer questions you may have about vaccines.” Read with the preceding “reliable, up-to-
19
date information” sentence to which it refers, and which together make its essential point, this
20
sentence is false, and provably so -- as CHD has devoted much of its organizational life to
21
showing. Read in context, the fair meaning of the sentence is to equate the word “information”
22
with “reliable and up-to-date information” in the preceding sentence. Any reasonable reader
23
would read the second “information” as shorthand for the first, and apply the “reliable, up-to-
24
date” modifiers to both. What else, if not the “reliable and up-to-date information,” which
25
Facebook says “everyone wants,” and which Facebook claims to be in a position to discern and
26
provide with respect to vaccines? By its terms of service and community standards
27
incorporated therewith, Facebook purports to be viewpoint-neutral except for limited instances
28
of speech, which poses an “imminent threat of harm or violence.” Facebook’s pretense of
129
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neutrality only compounds the reputational harm of its libel to Plaintiff. See Masson v. New
2
Yorker Magazine, Inc., 501 U.S. 496, 513 (1991) (New Yorker article which purported to be
3
non-fiction was actionable because it gave the reader no clue that fabricated quotations were
4
being used other than to allow the subject to speak for himself, which made them all the more
5
damning).
6
345.
“Go to CDC.gov.” Once more, the bolded and larger font size underscore that
7
Facebook has singled out Plaintiff’s Facebook page for negative comment. The very existence
8
of Facebook’s Warning Label on CHD’s page, and its redirection link “Go to CDC.gov,” are
9
well understood as a “black mark” on that page among Facebook’s community of 2 billion
10
users worldwide. Facebook’s highly-sporadic and selective exercise of its content-regulation
11
authority as community moderator underscores its audience’s reasonable expectation that, in
12
this context, a Facebook warning label on a third party’s page conveys an objective fact, not an
13
expression of Facebook’s opinion, or an undisclosed commercial interest and ambition. See
14
Knievel v. ESPN, 393 F.3d at 1075 (analyzing the format, structure, the language used, and the
15
expectations that the target audience would have with regard to the type of information that
16
might be found in the context, and noting that such context might be “paramount,” if not
17
“dispositive”). For any reasonable reader, the “gist” or “sting” of Facebook’s “warning label”
18
misrepresentation is its unsubtle insinuation as fact that, in contrast with the CDC’s
19
information, “what you see below on CHD’s page is not reliable, up-to-date information.
20
Rely on the CDC instead.” That is the only reasonable interpretation of Facebook’s Warning
21
Label in light of its specific wording, prominent placement on CHD’s page, and the context of
22
the CHD-created content on that page which features CHD’s scathing factual exposé of the
23
CDC.
24
346.
Facebook’s warning label on CHD’s page states a classic imputation of CHD’s
25
dishonesty in dealing with its users, and a lack of integrity about its trade in the sphere in
26
which it operates. That is how third-party readers understand it and, as such, it is falsely
27
disparaging under the Lanham Act. Defendants are liable for what is insinuated, as well as for
28
what is stated explicitly. MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 547 (1959).
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1
Further, the determinative question is whether the ‘gist or sting’ of the statement is true or
2
false, benign or defamatory, in substance. Ringler Associates, Inc. v. Maryland Casualty Co.,
3
80 Cal. App. 4th 1165, 1182 (2000). A statement is deemed false if it “would have a different
4
effect on the mind of the reader (or viewer) from that which the pleaded truth would have
5
produced.” Metabolife Int’l Inc. v. Wornick, 264 F.3d 832, 849 (9th Cir. 2001) (quoting
6
Masson v. New Yorker Magazine, Inc., 501 U.S. at 517). Facebook’s warning label is
7
“reasonably susceptible of an interpretation which implies a provably false assertion of fact,”
8
Couch v. San Juan Unified Sch. Dist., 33 Cal. App. 4th 1491 (1995); Dodds v. Am. Broad. Co.,
9
145 F.3d 1053, 1063-64 (9th Cir. 1998). Here, the conclusion that CHD’s vaccine-related
10
information is “unreliable and out-of-date” is sufficiently factual to be verifiable as true or
11
false, Milkovich v. Lorain Journal Co., 497 U.S. at 19, and indeed, it is false. See also
12
Manufactured Home Communities, Inc. v. County of San Diego, 544 F.3d 959, 964 (9th Cir.
13
2008) (defendant's statements that accused Plaintiff of lying without expressly disclosing a
14
factual basis for the statements could be defamatory).
15
347.
An old, but instructive case is Rosenberg v. J.C. Penney Co., 30 Cal. App. 2d
16
609 (1939). There, in 1924, the Rosenberg retail store sold the Healdsburg high school’s gym
17
uniform, and a competitor across the street, the J.C. Penney Co. department store, wanted that
18
business. So, a J.C. Penney manager created a window display that purported to compare
19
samples of the respective stores’ gym shorts. The comparison included a placard with these
20
comments: “Decide for Yourself. This Garment is either a poorly-made second or prison-made
21
merchandise. Seams crooked. Slovenly made. Long Loose Stitches.” Id. at 613. On appeal, the
22
California court affirmed that the window display placard was libelous per se because it was an
23
imputation against the honesty and integrity of the merchant in the sale of its goods, and
24
essentially accused it of fraud and deception, and unfair dealing with its customers. “The
25
reputation of a tradesman in the sphere in which he earns his living is a valuable asset and is
26
entitled to the protection of the law.” Id. at 620.
27
28
348.
Now fast forward nearly a century, and recast that small town America window
display libel by a giant and overreaching department store against its small cross-street rival to
131
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1
today’s world where the libel is propagated online by a comparable Goliath on a global scale.
2
That is, essentially, what Facebook has done. Like J.C. Penney’s window display, Facebook’s
3
warning label on CHD’s page draws an invidious comparison between the quality of the
4
health-related information offered by two rivals, the CDC and CHD, for the public’s trust and
5
attention. As alleged infra, Facebook has “skin in the game” because its controlling individual
6
and his related entities are in the vaccine development business, competing with CHD’s
7
educational materials, emphasizing informed consent and safety. Like the Rosenberg retail
8
store, the “business integrity of the company [CHD] is at stake.” Rosenberg v. J.C. Penney Co.,
9
30 Cal. App. 2d at 627.
10
349.
Facebook’s warning label implies a provably false assertion of fact, whether or
11
not the words used are termed “fact” or “opinion.” Milkovich, 497 U.S. at 18-19. The “gist” or
12
“sting” of the disparagement — that CHD’s page conveys “unreliable and out-of-date
13
information” — is objectively false in light of the totality of the circumstances: CHD’s page-
14
content and the fact-checking process by which it creates and curates such content,
15
distinguishes between known and unknown scientific facts, and labels expressions of opinion
16
on its page as such. See supra. Certainly the pleaded truth — that CHD’s page in fact contains
17
“reliable and up-to-date information” while CDC’s page does not — would produce an effect
18
on the mind of the reader 180-degrees different than the effect produced by Facebook’s
19
warning label. Masson, 501 U.S. at 516-17. Third-party readers understood Facebook’s
20
warning label as Facebook intended, namely as a statement of fact that the information on
21
CHD’s Facebook page is neither reliable nor up-to-date. See, e.g., Slaughter v. Friedman, 32
22
Cal.3d 149, 154 (1982) (accusations of “excessive” fees or “unnecessary” work by professional
23
dental plan administrators carry a “ring of authenticity” and reasonably might be understood as
24
being based on fact). Facebook has sought after, and must answer for, its own “ring of
25
authenticity.”
26
350.
On March 4, 2019, in response to Representative Schiff’s letter to Facebook,
27
CHD sent Facebook a nine-page single-spaced letter providing CHD’s detailed summary of the
28
known and unknown scientific facts, and its most pressing concerns, with respect to vaccine
132
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1
safety. See Exhibit A. Thus, Facebook was on notice that CHD was not promoting
2
“misinformation” of any sort.
3
351.
Yet, just three days later, on March 7, 2019, Facebook announced in its online
4
press release that it would take steps to eliminate “vaccine misinformation” on Facebook by
5
reducing its distribution and providing people with “authoritative information” on the topic,
6
and then Facebook proceeded to falsely disparage CHD. See, e.g., Masson, 501 U.S. at 521
7
(unlike “hot news” journalist, defendant author had both time and practical ability to fact-check
8
tapes in her possession). Here, with CHD’s detailed presentation in hand, Facebook had
9
“obvious reasons to doubt the veracity” of its warning label, but instead engaged in
10
“purposeful avoidance of the truth.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968); Harte-
11
Hanks Communication, Inc. v. Connaughton, 491 U.S. 657. By reasonable inference, Facebook
12
conducted no investigation whatsoever to confirm or dispel the material facts in CHD’s March
13
4, 2019 letter, and Facebook intended to convey or, at the very least, endorsed the defamatory
14
false innuendo. Newton v. National Broadcasting Co., Inc., 930 F.2d 662, 681 (9th Cir. 1990).
15
Facebook and Zuckerberg’s apparent failure to respond in writing to the March 4, 2019 letter,
16
much less to even attempt to refute the many points made in that letter (which was addressed to
17
Zuckerberg personally), reveals their reckless disregard for the truth in this matter, and that
18
their campaign against CHD was infected with legal malice. To the extent that there was a
19
failure to deliver the March 4 letter to Zuckerberg (although we are aware of no evidence that
20
he did not receive it), such a failure, and Facebook and Zuckerberg’s ultimate failure to
21
investigate the points raised in the letter and respond to them, also evinces a reckless disregard
22
for truth and underscores that Facebook and Zuckerberg’s conduct reflects the character of
23
legal malice.
24
352.
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) left open the
25
question whether non-media publisher defendants such as Facebook and Zuckerberg are
26
entitled to the same level of protection that media publisher defendants receive under the New
27
York Times standard. Either way, these defendants acted with the requisite mental state to be
28
liable for defamation measured by the “actual malice” standard that they subjectively doubted
133
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1
the veracity of the statement or purposely avoided the truth, or by the negligence standard
2
applicable to non-media defendants. Dodds, 145 F.3d at 1060; St. Amant v. Thompson, 390
3
U.S. at 731 (stating test as whether defendant “in fact entertained serious doubts as to the truth
4
of [his] publication”); Garrison v. Louisiana, 379 U.S. at 74 (whether defendant published the
5
material while subjectively possessing a “high degree of awareness of the probable falsity of
6
the publication”).
7
353.
“Actual malice” can be shown by, inter alia, “subsequent defamations [and
8
other] statements of defendants, circumstances indicating the existence of rivalry, ill will, or
9
hostility between the parties, [and] facts tending to show a reckless disregard of the Plaintiffs'
10
right[,]” Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979) (quoting 50 Am. Jur. 2d, § 455), all
11
of which are strongly present. In particular, defendants harbor an adverse motive to profit from
12
their unfettered development of vaccines and 5G networks, in furtherance of which they have
13
committed multiple other predicate acts of misrepresentation amounting to wire-fraud for
14
purposes of RICO enterprise liability. And, crucially, they knew their published warning label
15
was false or acted with reckless disregard to its falsity.
16
354.
Zuckerberg’s public statements to TV audiences, to Congress, to his investors,
17
and to Facebook users are replete with boasts that he works with government officials to
18
identify and suppress “vaccine misinformation,” and to redirect users to the government’s
19
authoritative “information,” and that his “understanding of the scientific consensus is that it’s
20
important that people get their vaccines.” He has also publicly boasted of his “outside interests
21
in health.” The three-day interval (March 4 to 7, 2019) from CHD’s nine-page letter to
22
Facebook’s press release announcing its campaign suggests that Zuckerberg willfully chose not
23
to test his “understanding” against actual facts, as brought to his attention by CHD.
24
355.
Zuckerberg has personally authorized, directed and participated in Facebook’s
25
campaign of false advertising and censorship directed against CHD and its website content.
26
Zuckerberg holds, and has long held, a position of predominance at Facebook. He is the
27
ultimate decision maker at the company. Zuckerberg is a co-founder of Facebook, Inc. and, at
28
all times relevant to the claims set forth herein, has served and functioned as Facebook’s
134
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1
Chairman, Chief Executive Officer, and controlling shareholder. According to the company’s
2
2018 Proxy Statement, Zuckerberg controls 53.3% of Facebook’s total voting shares. He
3
possesses the sole power to elect or remove any director from Facebook’s Board.
4
356.
Zuckerberg’s personal involvement in directing the operations and setting and
5
implementing the policies of Facebook has only increased over the years. As one report has
6
noted: “[After the 2016 election] Mr. Zuckerberg resolved to take control of the global
7
superpower in which he already dominated the voting. [In July 2018,] Mr. Zuckerberg called a
8
meeting with his top lieutenants. … Mr. Zuckerberg said he would be making more decisions
9
on his own, based on his instincts and vision for the company. Mr. Zuckerberg also began to
10
participate more directly in meetings that had previously been Ms. Sandberg’s domain – from
11
the nitty-gritty of taking down disinformation campaigns, to winding philosophical discussions
12
on how Facebook ought to handle political ads. … Other board disagreements, specifically
13
around political advertising and the spread of misinformation, always ended with Mr.
14
Zuckerberg’s point of view winning out.” Mike Isaac, Sheera Frenkel & Celia Kang, Now
15
More Than Ever, Facebook Is a ‘Mark Zuckerberg Production, supra,’ NEW YORK TIMES,
16
https://www.nytimes.com/2020/05/16/technology/zuckerberg-facebook-coronavirus.html
17
(emphasis added).
18
357.
As is well known, Zuckerberg is the public face of his company. He has testified
19
many times before Congress, including with regard to Facebook’s censorship policies
20
generally and its approach to vaccine information posted by users in particular. He is well
21
aware of the vaccine issue and is directly concerned with what he regards as Facebook’s role in
22
limiting the dissemination of material that he deems “misinformation.” As Zuckerberg noted in
23
response to a question from Representative Posey (R-FL) during a Congressional hearing
24
conducted on October 22,2019: “[W]e hear consistently from our community that people want
25
us to stop the spread of misinformation. So what we do is try to focus on misinformation. … If
26
someone wants to post anti-vaccination content or they want to join a group where people are
27
discussing that, we don’t stop them from doing that. But[…] we don’t go out of our way to
28
make sure our group recommendation systems show people or encourage people to join those
135
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 163 of 175
1
groups. We discourage that.” Facebook CEO Testimony Before House Financial Services
2
Committee [Video], C-SPAN (Oct.23, 2019),
3
https://www.c-span.org/video/?465293-1/facebook-ceo-testimony-house-financial-services-
4
committee (emphasis added). The above testimony is arguably self-contradictory and
5
disingenuous, and certainly understates the extraordinary aggressiveness of Zuckerberg and
6
Facebook’s censorship campaign against CHD (and, as a consequence, against the potential
7
viewers who are deprived of access to the material and information that CHD wishes to
8
provide concerning the possible dangers posed by vaccines). The point here, however, is that
9
the above testimony clearly indicates Zuckerberg’s direct interest and involvement in
10
Facebook’s effort to censor what he regards as “anti-vaccination” content, and that Zuckerberg
11
has personally authorized, directed and participated in the false advertising campaign intended
12
and designed to implement that effort.
13
358.
As noted supra, on February 14, 2019 Congressman Schiff addressed a letter to
14
Zuckerberg pointedly specifying that Facebook take steps, including the implementation of
15
algorithms, to identify, censor and remove supposed “vaccine misinformation.” In his letter’s
16
conclusion, Mr. Schiff wrote that he encouraged Zuckerberg “to consider what additional steps
17
you can take to address this growing problem. As more Americans rely on your services as
18
their primary source of information, it is vital that you take that responsibility with the
19
seriousness it requires, and nowhere more so than in matters of public health and children’s
20
health. Thank you for your attention to this important topic.” Schiff Sends Letter to Google,
21
Facebook Regarding Anti-Vaccine Misinformation, supra, Press Releases, CONGRESSMAN
22
ADAM SCHIFF, https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-
23
facebook-regarding-anti-vaccine-misinformation. By its terms, this letter is addressed
24
personally to Mark Zuckerberg, and its underlying assumption is that Zuckerberg personally
25
directs and is responsible for the conduct of the company — indeed, that he is the company.
26
359.
Whether Zuckerberg ever responded in writing to Rep. Schiff’s letter is, at
27
present, information that is exclusively within Defendants’ knowledge, disclosure of which
28
must await discovery in this matter. Plaintiff is not aware of any evidence indicating that
136
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1
Zuckerberg disclaimed interest in the vaccine issue, or that he disclaimed or had delegated the
2
personal responsibility for the censorship of so-called vaccine “misinformation” which Mr.
3
Schiff understood as residing with Zuckerberg. On the contrary, Zuckerberg personally met
4
with Mr. Schiff after the issuance of Mr. Schiff’s letter to discuss Facebook’s response to
5
Schiff’s demands. Zuckerberg’s personal interaction with Rep. Schiff alone indicates
6
Zuckerberg’s direct involvement with Facebook’s response to the issue posed by so-called
7
“anti-vaccine” information. It is evident that Schiff himself understood that when he was
8
communicating on this subject with Zuckerberg, he was communicating with the figure at
9
Facebook who had the ultimate responsibility and the ultimate say in directing Facebook’s
10
response.
11
360.
Reflected in Rep. Schiff’s communications with Zuckerberg, and
12
communications from other powerful office holders, was an implicit — and sometimes very
13
explicit — threat that if Facebook failed to censor vaccine “misinformation,” Facebook would
14
be subject to regulatory action, including the withdrawal of the CDA Section 230 so essential
15
to its business model. Thus, in June 2019, Rep. Schiff stated publicly, as Chairman of the
16
House Intelligence Committee, that Congress could or should “make changes” to the law that
17
currently does not hold social media companies liable for third party content on their
18
platforms. See, e.g., Hearings by Congress on “deepfakes” and artificial intelligence [Video],
19
GUARDIAN NEWS (June 13, 2019), https://www.youtube.com/watch?v=1ArPEDS0GTA.
20
Schiff emphasized that “if the social media companies can’t exercise the proper standard of
21
care when it comes to a whole variety of fraudulent or illicit comment, then we have to think
22
about whether that immunity still makes sense.” K. Waddell, A new attack on social media’s
23
immunity, supra, AXIOS, https:// www.axios.com/social-media-immunity-section-230-
24
f15ac071-32e9-4e33-81e6-4c7ebadaea5e.html. Similar sentiments were echoed recently in
25
even more pointed and threatening remarks made by Senator Elizabeth Warren specifically
26
directed to Facebook: “During the global pandemic, Facebook is looking the other way while
27
disinformation about the coronavirus goes viral on its platform – a direct threat to the health
28
and safety of millions of people. No company should be too big to be held accountable for
137
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1
distorting facts and spreading falsehoods, especially during a public health crisis.” Alexandra
2
Kelley, Zuckerberg says Facebook won’t remove anti-vaccine posts amid coronavirus
3
pandemic, THE HILL (Sept. 10, 2020), https://thehill.com/changing-america/well-
4
being/prevention-cures/515844-mark-zuckerberg-says-facebook-wont-remove-anti.
5
361.
Zuckerberg is unlikely to have been unaware of the above remarks made publicly
6
by two prominent and powerful politicians, and the implications that such statements carry for
7
his company. That awareness is all the more reason that Zuckerberg would have been involved
8
directly and personally in addressing the issues raised by Rep. Schiff and Senator Warren. The
9
false advertising and censorship campaign against CHD is part of Zuckerberg’s effort to
10
appease these and other government officials, and to stave off threatened government
11
regulation by complying with the demand that Facebook engage in severe censorship of so-
12
called “anti-vaccine misinformation.”
13
362.
While discovery may be necessary to demonstrate the full nature and extent of
14
Zuckerberg’s personal involvement in, and authorization and direction of, the false advertising
15
and censorship campaign against CHD, his own statements and his interactions and
16
communications with Rep. Schiff indicate his direct personal interest in the vaccine issue and
17
his specific interest in ensuring that that issue is handled to the advantage of Facebook – i.e., in
18
a manner that does not jeopardize its business model, its relationship with its pharmaceutical
19
advertisers, or its regulatory immunity. Given Zuckerberg’s position of predominance within
20
Facebook, he unquestionably has possessed the authority and capacity at all relevant times to
21
authorize, direct and actively participate in the illegal false advertising and fraud campaign
22
against CHD described herein.
23
363.
Defendants have exclusive possession, custody and control of other evidence of
24
falsity and/or Zuckerberg’s actual malice, e.g., private records and testimony concerning when,
25
with whom, how, and why Zuckerberg came to his “understanding” concerning “vaccine
26
misinformation,” which he confidently holds at “near 100%” certainty; his actual knowledge or
27
serious doubt of the “warning label’s” falsity; and what “deliberative process,” if any,
28
138
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1
occurred. See, e.g., Metabolife, 264 F.3d at 846 (ordering discovery of information within
2
defendants’ exclusive control which may be highly probative of falsity).
3
364.
Plaintiff has suffered general and special damages as enumerated below. It is
4
hornbook law that in measuring damages, the Court may consider Facebook’s influence and
5
that of Plaintiff, and Facebook’s global footprint, “for the greater the circulation, the greater
6
the wrong, and the more reason why greater care should be exercised in the publication[.]”
7
Graybill v. De Young, 140 Cal. 323, 330 (1902).
8
365.
No retraction demand was made nor required prior to filing this action under
9
California Civil Code section 48a, subdivision (a), because Facebook is not a “daily or weekly
10
news publication” as that term is defined in subsection (d)(5) of that statute.
11
366.
Plaintiff is entitled to injunctive relief and to recover their damages, including for
12
reputational harm and loss of business goodwill and revenue, and punitive damages resulting
13
from defendants’ intentional acts of false designation and false promotion under the Lanham
14
Act.
15
THIRD CAUSE OF ACTION
16
(RICO — WIRE FRAUD VIOLATIONS)
17
Defendants Facebook, Zuckerberg, Science Feedback, Poynter, and Does 1-20
18
367.
Paragraphs 1 through 223 are realleged and incorporated as if fully set forth
368.
18 U.S.C. § 1962(c) of the Racketeer Influenced and Corrupt Organizations Act
19
20
herein.
21
(“RICO”) makes it illegal for any person associated with an alleged racketeering enterprise “to
22
conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through
23
a pattern of racketeering activity.” To state a civil claim for violations of 18 U.S.C. § 1962(c),
24
as authorized by 18 U.S.C. § 1964(c), Plaintiff must allege: (1) conduct (2) of an enterprise
25
(3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) that
26
proximately causes (6) damages to the Plaintiff. Under 18 U.S.C. § 1961(1)(B), an act which is
27
indictable under 18 U.S.C. § 1343 (relating to wire fraud) constitutes a predicate act. A
28
“pattern” requires at least two related predicate acts that amount to or pose a threat of
139
VERIFIED FIRST AMENDED COMPLAINT
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Case 3:20-cv-05787-SI Document 64 Filed 11/13/20 Page 167 of 175
1
continued criminal activity. A pattern does not require multiple schemes or multiple victims.
2
“Enterprise,” as defined in 18 U.S.C. § 1961(4), broadly includes “any individual, partnership,
3
corporation, association, or other legal entity, or any union or group of individuals associated
4
in fact although not a legal entity.” The definition of a RICO enterprise has wide reach and is
5
liberally construed to effectuate its remedial purpose. Here, the “persons” were Facebook,
6
Zuckerberg, Science Feedback, Poynter, and Does 1 to 20, and the “enterprise” was that
7
distinct group of persons who associated in fact (the Facebook “content management” team) as
8
a coordinated group to effectuate their fraudulent scheme. River City Mkts., Inc. v. Fleming
9
Foods W., Inc., 960 F.2d 1458, 1461 (9th Cir. 1992) (concluding that “business relationship
10
akin to a joint venture” was sufficient to establish an associated-in-fact RICO enterprise). As
11
alleged supra, the Facebook content management team is an associated-in-fact enterprise in
12
that it is an ongoing organization, formal or informal, and its various associates function as a
13
continuing unit for a common purpose — to damage Plaintiff’s trade and property interests, to
14
divert users of their page to the CDC, and to unjustly enrich themselves – by fraudulent means.
15
369.
Defendants’ motive to profit from vaccine ads and product development and 5G
16
networks unconstrained by negative publicity on their platform is highly probative of their
17
intent to commit RICO wire-fraud, even though economic motive itself is not an element of the
18
claim. See, e.g., National Organization for Women, Inc. v. Schiedler, 510 U.S. 249, 252 (1994)
19
(rejecting the argument that “RICO requires proof either the racketeering enterprise or the
20
predicate acts of racketeering were motivated by an economic purpose”). Essentially, the task
21
of the Facebook fraud enterprise was to “clear the field” of CHD’s viewpoint for at least two
22
market purposes that involve property or money, and lots of it: (1) brand protection for its
23
vaccine maker ad buyers; and (2) its own future secured interest in vaccine patents and
24
technical products and processes that depend on 5G-networks for their commercial viability.
25
See, e.g., United States v. Reyes, 660 F.3d 454, 463 (9th Cir. 2011) (admitting evidence that
26
defendant made money on a fraudulent scheme). In addition, as alleged infra, CHD’s followers
27
and others relied upon defendant’s misrepresentation in ways that caused CHD to lose
28
donations and membership fees, and injured CHD in its organizational trade.
140
VERIFIED FIRST AMENDED COMPLAINT
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1
370.
For his part, in addition to all else, Zuckerberg was active in managing with his
2
wife the day-to-day affairs of CZI and CZ-Biohub, and he exercised specific control over their
3
vaccine development efforts. By his public statements, Zuckerberg was directly responsible for
4
Facebook’s false and misleading statements about Plaintiff’s posted content. He participated in
5
the ongoing associated-in-fact enterprise to develop his for-profit vaccine and 5G products
6
unconstrained by any public scrutiny of that effort by Plaintiff.
7
371.
Thus, all named defendants both inside Facebook’s formal structure (Zuckerberg,
8
Does 1-10) and out (Science Feedback, Poynter, Does 1-20) aided in one or another aspect of
9
their common fraud scheme: to label Plaintiff’s page “unreliable” and “out-of-date” and
10
redirect users to the CDC; to label Plaintiff’s speech-content “False” when it is critical of
11
vaccine or 5G network safety, accomplishing this censorship through the sham machinations of
12
“content moderators” and “independent fact-checkers”; and to conceal their true purposes of
13
profiting from vaccine manufacturer advertising and from their own vaccine and 5G network
14
development, all of which would be adversely affected by Plaintiff’s ongoing public health-
15
related speech.
16
372.
The wire fraud statute, 18 U.S.C. § 1343, prohibits schemes to defraud or to
17
obtain money or property, or cause financial loss to another, by means of “false or fraudulent
18
pretenses, representations, or promises” if interstate wire or electronic communications are
19
used to execute the scheme. The concept of a misrepresentation is broad, reaching not only
20
false statements of fact, but also all of Facebook’s misleading half-truths, deceptive omissions,
21
and knowingly false suggestions and promises as to the future. It is no defense that the
22
intended victim was too gullible or, on the other hand, was too sophisticated to be taken in by
23
the deception.
24
373.
Defendants also committed wire-fraud acts constituting “interference with
25
interstate commerce by threat” under 18 U.S.C. § 1951 in that the residual 0.05% of users who
26
— notwithstanding Facebook’s false “warning label” and “fact-checks” — actually click-
27
through to view Plaintiff’s actual content, suffer particular adverse consequences in terms of
28
“sandboxing,” and other detriments to their accessible tools and information on Facebook. As
141
VERIFIED FIRST AMENDED COMPLAINT
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1
alleged supra, with respect to its active collaboration with government officers and agencies,
2
Facebook took such actions under “color of official right.” 18 U.S.C. § 1951(2).
3
374.
Plaintiff further alleges that defendants caused a domestic injury to their business
4
or property. Where, as here, defendants specifically targeted their conduct at Plaintiff with the
5
aim of thwarting Plaintiff’s rights in the United States, their activity results in a domestic
6
injury.
7
375.
Under Fed. R. Civ. P. 9(b), predicate acts of wire fraud must be alleged with
8
specificity as to the contents of the communications, who was involved, where and when they
9
took place, and why they were fraudulent. As alleged supra, defendants engaged in a scheme
10
to defraud and made use of electronic and internet transmissions, and/or telephone calls, emails
11
and texts in furtherance of the scheme, with the specific intent to deceive or defraud.
12
376.
Plaintiff reasonably relied on defendant Facebook to adhere to its terms of
13
service and community standards; not to engage in content creation on their Facebook pages;
14
and not to mislead them, their advertising agency, or the world of third-party users as to the
15
truth or falsity of content on their pages, or the visibility or reach of those pages. Plaintiff was
16
misled by defendants, and even now is misled by Facebook’s product design as to which of
17
CHD’s posts have been altered, demoted, or blocked from all third-party users. Moreover,
18
Plaintiff was substantially injured by Facebook’s third-party users’ reliance on defendants’
19
falsehoods. See Bridge v. Phoenix Bond & Indem. Co., 553 U.S. at 658 (Plaintiff alleging a
20
RICO violation may establish causation through first person or third-party reliance).
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377.
As a direct and proximate result of Defendants’ predicate acts in violation of 18
22
U.S.C. §§ 1961(1)(B), 1962(c), Plaintiff has been and is continuing to be injured by harm to its
23
specific property interests and financial losses, including by Defendants’ denial of any third-
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party donations to Plaintiff’s organization; their refusal to accept Plaintiff’s advertising
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purchases aimed at promoting such third-party donations; and their concerted efforts to reduce
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the visibility and reach of Plaintiff’s page, to reduce traffic to that page, and to reduce
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membership and speaker fees, and book and other sales that accrue to Plaintiff from such
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traffic (see Xcentric Ventures, LLC v. Borodkin, 798 F.3d 1201, 1203 (9th Cir. 2015) (loss of
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specific business opportunities are recoverable under RICO)); and, finally, by publishing false
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and disparaging warning labels, and censoring of content, which have caused damage to
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Plaintiff’s professional reputation and other valuable tangible and intangible property rights
4
resulting in financial loss.
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378.
Defendants’ actions have already injured Plaintiff, and will have the effect of
6
further injuring them by damaging its trade reputation and goodwill, and those of their authors,
7
diverting traffic from its site, and further curtailing its revenue and donations. See, e.g.,
8
Harmoni Int'l Spice, Inc. v. Hume, 914 F.3d 648, 653 (9th Cir. 2019) (Plaintiff’s lost sales as a
9
direct result of the defendants’ predicate acts cognizable under RICO); Kaiser Foundation
10
Health Plan, Inc. v. Pfizer, Inc. (In re Neurontin Mktg. & Sales Practices Litig.), 712 F.3d 21,
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29-30 (1st Cir. 2013) (statistical link between fraudulent marketing and off-label prescribing,
12
without proof of any particular doctor-patient prescription, cognizable under RICO); Mendoza
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v. Zirkle Fruit Co., 301 F.3d 1163, 1166 (9th Cir. 2002) (fraud on the market for labor, in that
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wages were depressed when defendants hired undocumented workers, cognizable under
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RICO); United States v. Stockheimer, 157 F.3d 1082, 1087-88 (7th Cir. 1998) (“An intent to
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defraud does not turn on personal gain … all that matters is that [the defendant] intended to
17
inflict a loss.”); Resolute Forest Prods. v. Greenpeace Int’l., 2019 U.S. Dist. LEXIS 10263,
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*48 (N.D. Cal. 2019) (Plaintiff’s lost revenue due to customers’ reliance upon defendants’
19
statements states a cognizable injury under RICO); In re Chrysler-Dodge-Jeep EcoDiesel
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Mktg., Sales Practices & Prods. Liab. Litig. 295 F. Supp. 3d 927, 961 (N.D. Cal. 2018)
21
(statistical link between fraudulent marketing and Plaintiffs’ overpayment may establish
22
causation and injury to property). Facebook’s diversion of users and removal of CHD’s donate
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button caused a concrete RICO injury to CHD which had received $28,000 in May 2019 alone
24
through that function, before it was deactivated through one of Facebook’s predicate wire-
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fraud acts. See Resolute Forest Prods. id. Facebook may or may not take CHD’s money from
26
those third-party users it defrauds, but that is hardly a defense. Facebook profits illicitly from
27
its users whenever those users are misled by false fact-checks to click through and see new
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prompts and paid ads. Facebook also profits illicitly by solidifying its relationship with its
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pharmaceutical advertisers with duplicitous methods. There is a far greater societal good in
2
holding Facebook to its duty to be honest and truthful with its users than in letting Facebook
3
off the hook if its deceptions do not directly take money from those users. After all, Facebook
4
and Zuckerberg intended to destroy CHD’s donations, membership fees, and business goodwill
5
through coordinated acts of wire-fraud, even if they did not “pocket” CHD’s losses themselves.
6
CHD has been injured in its “business or property by reason of” defendants’ RICO violations.
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18 U.S.C. § 1964(c).
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379.
Facebook disabled CHD’s donate button in order to inflict a loss to CHD’s
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revenue. Facebook’s proffered rationale that it was because fact-checkers disputed CHD’s
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posts was pretextual. (For example, defendants have not restored the fundraising tools even
11
after removing fact-checked content entirely.) Facebook’s use of interstate wires to remove
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CHD’s fundraising tools was closely entwined with its fraudulent activity, and the removal
13
contributed to the success of the scheme. “This connection is not to be measured by a technical
14
standard; rather, what is required is that the mailings somehow contribute to the success of the
15
scheme.” United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). The mail and wire-
16
fraud statutes are identical in this regard. Under 18 U.S.C. § 1964(c), Plaintiff seeks to recover
17
threefold the damages they have sustained, and the cost of this suit, including an award of their
18
reasonable attorneys’ fees.
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FOURTH CAUSE OF ACTION
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(DECLARATORY RELIEF)
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Defendants Facebook, Zuckerberg, Science Feedback, Poynter, and Does 1-20
22
380.
Paragraphs 1 through 329 are realleged and incorporated as if fully set forth
381.
The Declaratory Judgment Act, codified in 28 U.S.C. § 2201(a), provides in
23
24
herein.
25
pertinent part that, “[i]n a case of actual controversy within its jurisdiction [] any court of the
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United States, upon the filing of an appropriate pleading, may declare the rights and other legal
27
relations of any interested party seeking such declaration, whether or not further relief is or
28
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could be sought. Any such declaration shall have the force and effect of a final judgment or
2
decree and shall be reviewable as such.”
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382.
An actual controversy has arisen and now exists between Plaintiff and
4
defendants, concerning their respective rights and duties in that these defendants have
5
published a false and misleading warning label on Plaintiff’s Facebook page; have fraudulently
6
misrepresented to third-party users of the page that Plaintiff has posted and is posting “false
7
[factual] information” in violation of their terms of service; and refuse to permit Plaintiff to
8
solicit donations or purchase advertisements on the social media platform. Defendants have
9
used deceptive means to limit the reach and visibility of CHD’s page. Finally, and within the
10
past two months, Zuckerberg has threatened to ban, limit, warn, deboost, block or censor
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content regarding 5G network safety.
12
383.
Under Ninth Circuit law, “intangible injuries, such as damage to ongoing
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recruitment efforts and goodwill, qualify as irreparable harm,” and weigh in favor of injunctive
14
relief. Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1105 (9th Cir. 1994);
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Rent-A-Ctr., Inc. v. Canyon TV and Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).
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Moreover, the “loss of First Amendment freedoms, for even minimal periods of time,
17
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
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Accordingly, Plaintiff has suffered – and continues to suffer – irreparable harm.
19
384.
Plaintiff seeks a judicial determination of its rights and remedies and a
20
declaration as to the parties’ respective rights and obligations with respect to CHD’s Facebook
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page. A judicial declaration is necessary and appropriate at this time so that Plaintiff may
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ascertain its rights to publish content on those pages without any interference, censorship,
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warning labels, “shadowbanning,” “deboosting,” “sandboxing,” or other deceptive means and
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methods employed by defendants, and with respect to other affirmative relief such as a public
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apology and entry on a First Amendment “shield list” by defendants.
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27
385.
As a result of Facebook’s unlawful conduct, Plaintiff has suffered substantial
damages, including, but not limited to:
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a.
Plaintiff was deprived of freedom of speech;
2
b.
Plaintiff was foreclosed from future opportunities to reach subscribers on
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4
Facebook;
c.
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Plaintiff lost status and prestige amongst Facebook followers, the general
public and the journalistic community;
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d.
Plaintiff suffered reputational harm;
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e.
Plaintiff lost third-party donations to Plaintiff’s organization, speaker fees,
8
and book and other sales that would have accrued to Plaintiff but for
9
defendants’ misconduct; and,
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11
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e.
These injuries are continuing in nature requiring injunctive relief.
WHEREFORE, Plaintiff CHD demands judgment against Facebook Inc. for damages
and injunctive relief as set forth below.
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DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all issues so triable.
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* * * * * *
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PRAYER FOR RELIEF
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WHEREFORE, Plaintiff Children’s Health Defense respectfully requests:
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A.
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Compensatory damages in an amount to be determined by the Jury, but not less
than $5,000,000.
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B.
An award of treble damages to Plaintiff in an amount to be determined at trial.
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C.
An injunction and declaratory judgment ordering Facebook to remove its
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warning labels and misclassification of all content on Plaintiff’s Facebook page,
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and to desist from any further warnings or classifications.
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D.
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An award of attorneys’ fees and costs to Plaintiff in an amount to be determined
at trial.
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E.
An award of punitive damages to Plaintiff in an amount to be determined at trial.
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F.
An order requiring defendants to make a public retraction of their false
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statements.
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G.
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Date: November 13, 2020
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An award of such other and further relief as the Court may deem just and proper.
Respectfully submitted,
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ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense
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MARY S. HOLLAND
General Counsel, Children’s Health Defense
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ROGER I. TEICH
Counsel for Plaintiff
Children’s Health Defense
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VERIFICATION
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I, MARY HOLLAND, declare under penalty of perjury as follows:
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1.
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I am the general counsel for Children’s Health Defense, a non-profit organization
and Plaintiff in this action.
2.
I have reviewed the foregoing Complaint and declare that the facts set out therein
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are true to the best of my knowledge and belief, except those matters stated as upon
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information and belief, which are true to the best of my belief.
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I declare under penalty of perjury of the laws of the United States that the foregoing is
true and correct.
Executed this 13th day of November 2020, in Rockland County, New York.
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MARY HOLLAND
General Counsel, Children’s Health Defense
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Attorney for Plaintiff
Children’s Health Defense
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VERIFIED FIRST AMENDED COMPLAINT
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