Plaintiff's Motion for Leave to File Second Amended Complaint — Children's Health Defense v. Facebook, Inc. (Dkt. 65, N.D. Cal.)

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Plaintiff’s Motion for Leave to File Second Amended Complaint by Children’s Health Defense, Document 65 filed 12/04/20 in Case 3:20-cv-05787-SI, CHD v. Facebook et al., in the Northern District of California. The notice of motion sets the motion for Friday, January 8, 2021 at 10:00 a.m. The motion states that Plaintiff filed a Complaint on August 17, 2020 and a First Amended Complaint on November 13, 2020. It states that the Second Amended Complaint, attached as Exhibit A, seeks to add seven paragraphs raising factual allegations of additional government involvement with Defendants that bear on the Bivens “color of law” analysis of Claim 1.

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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
1
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. (pro hac vice)
MARY HOLLAND (pro hac vice)
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

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

CHILDREN’S HEALTH DEFENSE,

Plaintiff,

v.

FACEBOOK, INC., et al.,

Defendants.
Case No. 3: 20-cv-05787-SI

PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED
COMPLAINT

Fed. R. Civ. P. 15

Date:  January 8, 2021
Time: 10:00 a.m.
Courtroom 1 – 17th Floor

Case 3:20-cv-05787-SI   Document 65   Filed 12/04/20   Page 1 of 9

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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
2
NOTICE OF MOTION
Please take notice that on Friday, January 8, 2021 at 10:00 a.m. in Courtroom 1 of the
Phillip Burton Federal Building and United States Courthouse, 450 Golden Gate Avenue, San
Francisco, California, Plaintiff Children’s Health Defense (“CHD”) will, and hereby does,
move the Court to grant it leave to file a Second Amended Complaint.

INTRODUCTION
Plaintiff CHD, by and through undersigned counsel, moves this Court to grant it leave
to file a Second Amended Complaint.
On August 17, 2020, Plaintiff filed a Complaint (Dkt. #1), and on November 13, 2020, a
First Amended Complaint (Dkt. #64). In its Second Amended Complaint, attached hereto as
Exhibit A, CHD seeks to add seven paragraphs which raise factual allegations of additional
U.S. Government involvement with Defendants which bear on the Bivens1 “color of law”
analysis of Claim 1.
First, new Paragraph 98 alleges that U.S. State Department and National Endowment
for Democracy (“NED”) direct funding of defendant The Poynter Institute for Media Studies,
Inc. (“Poynter”), and/or of Poynter’s International Fact-Checking Network (“IFCN”) unit. New
Paragraphs 99-101 allege that, under Executive Order 13747 (2016), the U.S. Secretary of
State coordinates private sector initiatives which advance the Global Health Security Agenda
(“GHSA”), including “bio-security” measures such as the censorship at issue in Claim 1.
Direct funding is an element of Bivens analysis, different in kind from the currently-alleged
flow of monetary contributions from Facebook and Mark Zuckerberg to the Centers for
Disease Control and Prevention (“CDC”) Foundation (see First Amended Complaint, Dkt. #64,
paras. 46-48, 94-97).  The government’s GHSA “bio-security” agenda supplies a significant
additional nexus between the public and private action at issue here.

1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
3
Second, new Paragraph 102 alleges newly-revealed “cyberwar” coordination between
the U.K. and U.S. Governments, including with social media platforms, to take down or
disrupt the online content of certain websites which publish COVID-19 “anti-vaccine
propaganda.”
Third, new Paragraph 103 alleges the existence of a Federal Bureau of Investigation
(“FBI”)-private sector partnership known as “InfraGard,” in which Facebook participates.
Fourth, new Paragraph 104 alleges that defendant Mark Zuckerberg himself is under
direct and severe pressure from these or other U.S. government actors to censor any criticism
of government “bio-security” policies on his social media platform. Finally, new Paragraph
104 alleges that Plaintiff requires process to prove the non-obvious role of the U.S. government
in implementing, requiring, or actively encouraging defendants’ specific censorship at issue,
precisely because it is concealed from public scrutiny. This is so particularly in light of the
high priority that the U.S. Government assigns to the task of shaping the public debate on
vaccine safety issues. See, e.g., Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 570
U.S. 205 (2013) (government requirement that non-governmental recipients of anti-HIV/AIDS
funding explicitly agree with government policy to oppose prostitution violates the First
Amendment).
CHD makes this request for leave to file a Second Amended Complaint pursuant to
Rule 15(a)(2) of the Federal Rules of Civil Procedure, the pleadings and papers on file in this
action, and the memorandum below. The Verified Second Amended Petition is being lodged
simultaneously with this motion.

PROCEDURAL HISTORY AND PETITIONER’S PROPOSED AMENDMENT
On August 17, 2020, CHD filed its 95-page Verified Complaint alleging four claims for
relief: (1) First and Fifth Amendments (Bivens); (2) Lanham Act (15 U.S.C. § 1125(a));
(3) RICO Fraud (18 U.S.C. § 1962); and (4) Declaratory Relief. (Dkt. #1.) On September 9,
2020, the parties stipulated that Defendants Facebook, Inc., Mark Zuckerberg, Poynter, and
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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
4
Politifact’s response to the Complaint would be due October 23, 2020.2 (Dkt. #23.) On
September 11, 2020, pursuant to stipulation, the Court ordered that Plaintiff’s opposition be
filed by December 21, 2020, and Defendants’ reply by January 21, 2020. (Dkt. #29.)
On October 23, 2020, Facebook/ Zuckerberg and Poynter filed separate motions to
dismiss the Complaint with prejudice. (Dkts. #54, 56.) On November 9, 2020, pursuant to
Stipulation, the Court ordered that Plaintiff file its Amended Complaint by November 13,
2020, pursuant to Fed. R. Civ. P. 15(a)(1)(B); Defendants’ motions to dismiss Plaintiff’s
Amended Complaint by December 21, 2020; Plaintiff’s oppositions to Defendants’ renewed
motions to dismiss by February 5, 2021; and Defendants’ replies by March 5, 2021. (Dkt. #63.)
The Court set March 19, 2021 as the date for hearing the motions to dismiss and for the initial
case management conference, and stayed all discovery between these parties unless and until
the motions to dismiss are denied in whole or in part. (Id.)
On November 13, 2020, Plaintiff filed its 148-page verified First Amended Complaint
(Dkt. #64.) During the ensuing three weeks, Plaintiff learned of three additional and very
signicant modes of U.S. Government involvement with Defendants which bear on the Bivens
“color of law” analysis. The instant motion follows.
For purposes of clarity, and for ease of reference, CHD summarizes its requested
amendments here:
New ¶ 98.
Defendant Poynter lists among its major funders the NED, which
“receives an annual appropriation from the U.S. Congress through the Department of State.”
The U.S. Department of State is also a direct funder of IFCN, a unit of Poynter, contributing, in
combination with NED, 10% of IFCN’s budget in 2019.

2
On September 22, 2020, Plaintiff’s private process server effected physical service of
the Complaint on French defendant Science Feedback through Emanuel Vincent, its founder
and director, but he refused to sign a return receipt for the documents. (Dkt. #45-1.) Consistent
with this Court’s Order (Dkt. #48), Plaintiff is continuing to attempt service on Science
Feedback, including through the Hague Convention.  On October 7, 2020, Plaintiff voluntarily
dismissed without prejudice defendant PolitiFact, which is a fictitious name registered by
Poynter for its “fact-checker” service, and not a separate legal entity. (Dkts. #47, 50.)
Case 3:20-cv-05787-SI   Document 65   Filed 12/04/20   Page 4 of 9

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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
5
New ¶ 99.
Executive Order 13747 (2016) declares that it is the policy of the United
States to advance the Global Health Security Agenda (“GHSA”). Section 3(b)(vii) of that
Order directs the Secretary of State to “coordinate [. . .] the United States Government
relationship with [. . .] domestic GHSA nongovernmental stakeholders, including the private
sector.”
New ¶ 100. Consistent with the high priority it gives to “bio-security” in U.S. foreign
policy, the GHSA seeks to build alliances between government and the private sector, inter
alia, to improve immunization rates, strengthen real-time bio-surveillance, and establish a
global health security workforce. As part of this mission, Executive Order 13747 authorized
the State Department to recruit private corporations -- including social media platforms and
their enablers, such as Facebook and Poynter/Science Feedback -- to suppress speech such as
Plaintiff’s solely because it is critical of GHSA’s agenda, and the risks which that agenda poses
to public health.
New ¶ 101. The WHO’s January 2019 announcement declaring “vaccine hesitancy” to
be a major threat to global health was a byproduct of the State Department’s GHSA “bio-
security” agenda. Rep. Schiff’s March 2019 public letter to Facebook, referenced elsewhere in
the First Amended Complaint, was in furtherance of the public-private “partnership” at the
core of the GHSA. (See First Amended Complaint, Dkt. #64, at paras. 1, 60-67, 71, 79, 293-94,
302-304, 307, 311, 313.) The State Department made its donations (including through NED) to
Poynter and its IFCN to induce “fact-checker” censorship of criticism by Plaintiff, among
others, of government policies respecting the GHSA and its goals of mandatory universal
immunization. Thus, at least one of the defendants (Poynter) receives direct government
funding as part of the complex web of public/private relationships evidently at work here.
New ¶ 102. Within the past month, the British Government — acting in conjunction
with the U.S. Government — has undertaken “cyber-warfare operations” to take down or
disrupt the online content of websites which publish purportedly foreign state-sponsored
COVID-19 “anti-vaccine propaganda.” Lucy Fisher & Chris Smyth, GCHQ in cyberwar on
anti-vaccine propaganda, THE TIMES (Nov. 9, 2020), https://www.thetimes.co.uk/article/gchq-
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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
6
in-cyberwar-on-anti-vaccine-propaganda-mcjgjhmb2.  Indeed, a British Cabinet Office
spokesman recently stated, “As we edge closer to a [COVID-19] vaccine we continue to work
closely with social media companies and other organizations to anticipate and mitigate any
emerging anti-vax narratives and promote authoritative sources of information.” Emer Scully,
British Army's Information Warfare Unit will be deployed to tackle anti-vaccine propaganda
ahead of jab rollout, DAILY MAIL (Nov. 28, 2020), https://www.dailymail.co.uk/news/article-
8997437/British-Armys-information-warfare-unit-deployed-tackle-anti-vaccine-
propaganda.html (emphasis added). Thus, it appears that the U.K.-U.S. Government censorship
campaign is designed to target any content — even from a legitimate 501(c)(3) entity such as
Plaintiff — which raises concerns, however well-founded, about the safety or efficacy of
experimental COVID-19 vaccines, or the lack of unbiased regulatory or pharmaceutical
company oversight of vaccines generally.
New ¶ 103. The FBI, in its role with respect to U.S. “critical infrastructure,” also
collaborates with Facebook through its public-private partnership (“InfraGard”), to censor
information on Facebook’s platform that expresses criticism of government “bio-security”
policies. A 2019 InfraGard publication stressed that “[w]e also need social media companies to
continue to refine the algorithms that power their services to better distinguish quality
information from deceptions or otherwise misleading information.” The Anti-Vaxxers
Movement and National Security, THE INFRAGARD JOURNAL, Volume 2, Issue 1 (June 2019),
https://www.infragardnational.org/wp-
content/uploads/2019/07/InfraGard_June_2019_Article3.pdf.
New ¶ 104. Plaintiff requires process to discover in greater detail the precise means by
which the U.S. Government – including, inter alia, through its GHSA funding of
Poynter/IFCN, its Infragard FBI/private “partnership,” and/or its U.K. “cyberwar”
collaboration - implements, requires, or actively encourages the Facebook censorship at issue.
On recent information and belief, Zuckerberg himself is under direct and severe pressure from
the above named or other U.S. government actors to censor any criticism of government “bio-
security” policies on his social media platform. In addition to these allegations, Plaintiff
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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
7
requires process to prove the non-obvious role of the U.S. government in defendants’ specific
conduct at issue – precisely because that role is concealed from public scrutiny.

LEGAL PRINCIPLES GOVERNING AMENDMENT
Federal Rule of Civil Procedure 15(a)(2) permits pleadings to be amended by leave of
court when justice so requires. Leave to amend should be liberally granted, as the purpose of
pleadings is to facilitate a proper decision on the merits. DCD Programs, Ltd. v. Leighton, 833
F.2d 183, 186 (9th Cir. 1987) (“Rule 15’s policy of favoring amendments to pleadings should
be applied with ‘extreme liberality’”); Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
1052 (9th Cir. 2003) (Rule 15 “is to be applied with extreme liberality”); Howey v. United
States, 481 F.2d 1187 (9th Cir. 1973). The Supreme Court has explained:
Rule 15 (a) declares that leave to amend “shall be freely given
when justice so requires”; this mandate is to be heeded. See
generally, 3 Moore, Federal Practice (2d ed. 1948), paras. 15.08,
15.10. . . . In the absence of any apparent or declared reason -- such
as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of amendment, etc. -- the
leave sought should, as the rules require, be “freely given.”

Foman v. Davis, 371 U.S. 178, 182 (1962); see also Riley v. Taylor, 62 F.3d 86, 89-92 (3rd
Cir. 1995). Such factors are not given equal weight; prejudice to the opposing party is the most
important factor, see Eminence Capital, LLC. v. Aspeon, 316 F.3d 1048, 1052 (9th Cir. 2002),
and delay alone is insufficient reason to deny leave to amend, see Bowles v. Reade, 198 F.3d
752, 758 (9th Cir. 1999).

AMENDMENT IS PROPER AND IN THE
INTERESTS OF JUSTICE IN PLAINTIFF’S CASE
Pursuant to the above standards, the requested leave to amend should be granted.  None
of the factors that might militate against permitting an amendment are present. As an initial
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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
8
matter, Plaintiff has acted diligently in seeking the proposed amendment. Undersigned counsel
filed a 148-page First Amended Complaint by right a short time ago on November 13, 2020
(Fed. R. Civ. P. 15(a)(1)(B)). Thereafter, counsel were informed of additional information
(some of which are truly new facts) which bears significantly on the Bivens “color of law”
Claim 1. Counsel have promptly brought this information to the Court’s attention, which adds
as many facts to those allegations as it is within Plaintiff’s power to procure without subpoena
power. Moreover, Plaintiff’s request will not create an undue delay of the proceedings, as none
of the Defendants has filed a response to the First Amended Complaint.3 On these facts, there
can be no suggestion that Plaintiff has acted in a dilatory fashion or in bad faith.
Nor will Defendants suffer any undue prejudice by the Court’s allowance of an
amendment. In their original motion to dismiss, Facebook/Zuckerberg took the position that
Plaintiff did not allege that any federal actor was sufficiently intertwined with Facebook’s
censorship of CHD’s content so as to to sustain Plaintiff’s Bivens claim that Facebook’s
conduct constitutes state action. See, e.g., Dkt. #56, p. 11 of 33. Undoubtedly, Defendants will
continue to assert this position. Plaintiff strongly disagrees with Defendants’ stance and will
vigorously oppose any motion to dismiss brought by Defendants. The new allegations are
clearly germane to, and provide additional support for, Plaintiff’s Bivens claim. The Court, of
course, need not determine these issues now. The essential point at this stage is that Defendants
have been on notice of the Bivens claim since Plaintiff’s original complaint was filed on
August 17, 2020. There can be no reasonable argument that Defendants’ ability to litigate the
claim will be impaired by Plaintiff’s requested amendment. See Howey v. United States, 481
F.2d 1187, 1190-92 (9th Cir. 1973) (finding lack of prejudice because the party opposing
amendment had, through the course of the litigation, been “on notice” of the grounds
underlying the movant’s claim and were “prepared to litigate the substantive issues”). In sum,

3
Plaintiff maintains that, to the extent Rule 16 is applicable, there is also “good cause” to
alter the Court’s November 9, 2020 briefing schedule order, if necessary. See Fed. R. Civ. P.
16(b)(4) (“A schedule may be modified only for good cause and with the judge's consent”).
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PLAINTIFF’S MOTION FOR LEAVE
TO FILE SECOND AMENDED COMPLAINT
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
9
Plaintiff’s proposed amendment will do nothing to alter the parties’ respective positions in this
litigation, and thus Defendants cannot show that they will be prejudiced by Plaintiff’s request.
Finally, Plaintiff’s requested amendment would not be futile, as each of the seven new
paragraphs adds additional facts to the complex web of public-private relationships which lie at
the heart of the Bivens claim. Thus, it would not prove futile for Plaintiff to make the requested
amendment or for the Court to consider the fully-pleaded claims presented therein in the
context of Defendants’ renewed motions to dismiss.

CONCLUSION
For the reasons stated above, CHD requests an order granting it leave to file the Verified
Second Amended Complaint and Exhibits lodged herewith.

Dated:  December 4, 2020
Respectfully submitted,

ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense

MARY S. HOLLAND
General Counsel, Children’s Health Defense

ROGER I. TEICH

Counsel for Plaintiff
Children’s Health Defense
Case 3:20-cv-05787-SI   Document 65   Filed 12/04/20   Page 9 of 9

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