Defendants’ Notice Of Motion
- Date
- 2021-02-05
Summary
Defendants' notice of motion and motion to dismiss, with a memorandum of points and authorities, 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 October 23, 2020 as Document 56 before Judge Susan Illston. Facebook, Inc. and Mark Zuckerberg move under Fed. R. Civ. P. 12(b)(6) to dismiss the complaint with prejudice, noticing a hearing for February 5, 2021. The memorandum argues that the complaint does not state a Bivens claim, that the First Amendment and 47 U.S.C. § 230 bar the Lanham Act and civil RICO claims, and that the plaintiff fails to state those claims or any claim against Mark Zuckerberg. It also argues the plaintiff is not entitled to declaratory relief. The 33-page filing is signed by Sonal N. Mehta of Wilmer Cutler Pickering Hale and Dorr LLP.
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Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 1 of 33
1
SONAL N. MEHTA (SBN 222086)
2 Sonal.Mehta@wilmerhale.com
WILMER CUTLER PICKERING
3 HALE AND DORR LLP
2600 El Camino Real, Suite 400
4 Palo Alto, California 94306
Telephone: (650) 858-6000
5 Facsimile: (650) 858-6100
6 ARI HOLTZBLATT (pro hac vice)
Ari.Holtzblatt@wilmerhale.com
7 MOLLY M. JENNINGS (pro hac vice)
Molly.Jennings@wilmerhale.com
8 ALLISON SCHULTZ (pro hac vice)
Allison.Schultz@wilmerhale.com
9 WILMER CUTLER PICKERING
HALE AND DORR LLP
10 1875 Pennsylvania Ave, NW
Washington, DC 20006
11 Telephone: (202) 663-6000
Facsimile: (202) 663-6363
12
Attorneys for Defendants
13 FACEBOOK, INC. and
MARK ZUCKERBERG
14
15
16 UNITED STATES DISTRICT COURT
17 NORTHERN DISTRICT OF CALIFORNIA
18 SAN FRANCISCO DIVISION
19 CHILDREN’S HEALTH DEFENSE,
Case No. 3:20-cv-05787-SI
20 Plaintiff,
21 DEFENDANTS’ NOTICE OF MOTION
v.
AND MOTION TO DISMISS;
22 FACEBOOK, INC., ET AL., MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
23 Defendants. THEREOF
24 Hon. Susan Illston
25 Courtroom I – 17th Floor
Date: February 5, 2021
26 Time: 10:00 a.m.
27
28
CASE NO.: 3:20-CV-05787-SI NOTICE OF MOT. & MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 2 of 33
1 TABLE OF CONTENTS
2 Page
NOTICE OF MOTION AND MOTION TO DISMISS ................................................................... - 1 -
3
STATEMENT OF REQUESTED RELIEF ...................................................................................... - 1 -
4
MEMORANDUM OF POINTS AND AUTHORITIES .................................................................. - 1 -
5
BACKGROUND .............................................................................................................................. - 3 -
6
A. Facebook Uses Third-Party Fact-Checkers To Identify Misinformation ................. - 3 -
7
B. Facebook Labels and Demotes CHD Content Identified By Third-Party Fact-
8 Checkers As Containing False Information .............................................................. - 5 -
9 ARGUMENT .........................................................................................................................................6
10
I. CHD HAS NOT STATED A BIVENS CLAIM (COUNT I)............................................... - 6 -
11
A. The Complaint Does Not Plausibly Allege Federal Action ...................................... - 6 -
12
B. Neither Facebook Nor Mark Zuckerberg Is A Proper Bivens Defendant ................ - 8 -
13
C. The Bivens Claim Requires An Unwarranted Expansion Of Bivens Liability ........ - 9 -
14
II. THE FIRST AMENDMENT BARS THE REMAINDER OF CHD’S CLAIMS
15 (COUNTS 2 & 3) ................................................................................................................ - 10 -
16 A. The First Amendment Protects Facebook’s Statements And Content-
Moderation Decisions ............................................................................................. - 10 -
17
B. CHD Cannot Recover For Alleged False Statements Absent Actual Malice ......... - 11 -
18
III. THE CDA ALSO BARS CHD’s LANHAM ACT AND CIVIL RICO CLAIMS
19 (COUNTS 2 & 3) ................................................................................................................ - 13 -
20 IV. CHD HAS NOT STATED A CLAIM UNDER THE LANHAM ACT (COUNT 2) ........ - 14 -
21 A. CHD Lacks Standing Under The Lanham Act ....................................................... - 15 -
22 B. The Complaint Does Not Identify A Promotional Statement ................................. - 15 -
23 V. CHD HAS NOT STATED A CIVIL RICO CLAIM (COUNT 3) ..................................... - 17 -
24 A. CHD Lacks Statutory Standing To Bring A Civil RICO Claim ............................. - 17 -
25 B. CHD Has Not Pleaded Any Predicate Acts Of Wire Fraud.................................... - 18 -
26 1. Defendants did not obtain “money or property” from CHD....................... - 18 -
27 2. None of the purported acts of “wire fraud” were fraudulent ...................... - 19 -
VI. CHD Fails To State Any Claim Against Mark Zuckerberg ................................................ - 22 -
28
CASE NO.: 3:20-CV-05787-SI -i- NOTICE OF MOT. & MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 3 of 33
1 VII. CHD Is Not Entitled To Declaratory Relief ........................................................... - 23 -
2 CONCLUSION ......................................................................................................................23
3
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CASE NO.: 3:20-CV-05787-SI ii NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 4 of 33
1 TABLE OF AUTHORITIES
2 Page(s)
CASES
3
Animal Legal Defense Fund v. HVFG LLC,
4
939 F. Supp. 2d 992 (N.D. Cal. 2013) ................................................................................... 15
5
Anza v. Ideal Steel Supply Corp.,
6 547 U.S. 451 (2006) ............................................................................................................... 18
7 Ashcroft v. Iqbal,
556 U.S. 662 (2009) ..................................................................................................... 8, 12, 22
8
Barnes v. Yahoo!, Inc.,
9 570 F.3d 1096 (9th Cir. 2009) ............................................................................................... 13
10
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
11 403 U.S. 388 (1971) ................................................................................................................. 6
12 Blum v. Yaretsky,
457 U.S. 991 (1982) ................................................................................................................. 7
13
Canyon County v. Syngenta Seeds, Inc.,
14 519 F.3d 969 (9th Cir. 2008) ................................................................................................. 18
15
Carlson v. Green,
16 446 U.S. 14 (1980) ................................................................................................................... 9
17 Chaiken v. VV Publishing Corp.,
119 F.3d 1018 (2d Cir. 1997)................................................................................................. 13
18
Coastal Abstract Services, Inc. v. First American Title Insurance Co.,
19 173 F.3d 725 (9th Cir. 1999) ................................................................................................. 15
20 Correctional Services Corp. v. Malesko,
21 534 U.S. 61 (2001) ............................................................................................................... 6, 8
22 County of Santa Clara v. Trump,
267 F. Supp. 3d 1201 (N.D. Cal. 2017) ................................................................................. 23
23
Daniels-Hall v. National Education Ass’n,
24 629 F.3d 992 (9th Cir. 2010) ................................................................................................... 8
25 Decker v. GlenFed, Inc.,
42 F.3d 1541 (9th Cir. 1994) (en banc) ........................................................................... 19, 20
26
27 Dex Media West, Inc. v. City of Seattle,
696 F.3d 952 (9th Cir. 2012) ................................................................................................. 16
28
CASE NO.: 3:20-CV-05787-SI -i- NOTICE OF MOT. & MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 5 of 33
1 Eastwood v. National Enquirer, Inc.,
123 F.3d 1249 (9th Cir. 1999) ...............................................................................................12
2
Edwards v. Marin Park, Inc.,
3 356 F.3d 1058 (9th Cir. 2004) ...............................................................................................19
4
Eller v. Equitrust Life Insurance Co.,
5 778 F.3d 1089 (9th Cir. 2015) .........................................................................................18, 22
6 FDIC v. Meyer,
510 U.S. 471 (1994) .................................................................................................................8
7
Federal Agency of News LLC v. Facebook, Inc.,
8 432 F. Supp. 3d 1107 (N.D. Cal. 2020) .............................................................................8, 14
9 Ferrari v. Mercedes-Benz USA, LLC,
10 2016 WL 7188030 (N.D. Cal. Dec. 12, 2016) .......................................................................23
11 Franklin v. Fox,
312 F.3d 423 (9th Cir. 2002) ...................................................................................................7
12
Fyk v. Facebook, Inc.,
13 808 F. App’x 597 (9th Cir. 2020) ..........................................................................................14
14 Gordon & Breach Science Publishers, S.A. v. American Institute of Physics,
15 859 F. Supp. 1521 (S.D.N.Y. 1994).......................................................................................16
16 Greater L.A. Agency on Deafness, Inc. v. CNN, Inc.,
742 F.3d 414 (9th Cir. 2014) .................................................................................................14
17
Harte-Hanks Communications Inc. v. Connaughton,
18 491 U.S. 657 (1989) ...............................................................................................................12
19 Holmes v. Securities Investor Protection Corp.,
503 U.S. 258 (1992) ...............................................................................................................18
20
21 Hurley v. Irish American Gay, Lesbian & Bisexual Group of Boston,
515 U.S. 557 (1995) ...............................................................................................................11
22
Jian Zhang v. Baidu.com Inc.,
23 10 F. Supp. 3d 433 (S.D.N.Y. 2014)......................................................................................11
24 Kimzey v. Yelp, Inc.,
836 F.3d 1263 (9th Cir. 2016) ...............................................................................................13
25
Klayman v. Zuckerberg,
26
753 F.3d 1354 (D.C. Cir. 2014) .............................................................................................13
27
Knievel v. ESPN,
28 393 F.3d 1068 (9th Cir. 2005) .................................................................................................3
CASE NO.: 3:20-CV-05787-SI ii NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 6 of 33
1 La’Tiejira v. Facebook, Inc.,
272 F. Supp. 3d 981 (S.D. Tex. 2017) ...................................................................................11
2
Langdon v. Google, Inc.,
3 474 Supp. 2d 622 (D. Del. 2007) ...........................................................................................11
4
Lewis v. Google LLC,
5 2020 WL 2745253 (N.D. Cal. May 20, 2020) .......................................................................15
6 Lexmark International, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .........................................................................................................14, 15
7
Lugar v. Edmonson Oil Co.,
8 457 U.S. 922 (1982) .................................................................................................................6
9 Makaeff v. Trump University, LLC,
10 715 F.3d 254 (9th Cir. 2013) .................................................................................................11
11 Manhattan Community Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) .........................................................................................................6, 9
12
Mathis v. Pacific Gas & Electric Co.,
13 75 F.3d 498 (9th Cir. 1995) .....................................................................................................7
14 Miami Herald v. Tornillo,
15 418 U.S. 241 (1974) ...............................................................................................................11
16 Midwest Grinding Co. v. Spitz,
976 F.2d 1016 (7th Cir. 1999) ...............................................................................................17
17
Miller v. Yokohama Tire Corp.,
18 358 F.3d 616 (9th Cir. 2004) .................................................................................................20
19 Monterey Plaza Hotel L.P. v. Local 483,
215 F.3d 923 (9th Cir. 2000) ...........................................................................................18, 19
20
21 Morse v. North Coast Opportunities, Inc.,
118 F.3d 1338 (9th Cir. 1997) .............................................................................................6, 7
22
National Organization for Women, Inc. v. Scheidler,
23 510 U.S. 249 (1994) ...............................................................................................................17
24 NCAA v. Tarkanian,
488 U.S. 179 (1988) .................................................................................................................8
25
New York State Board of Elections v. Lopez Torres,
26
552 U.S. 196 (2008) ...............................................................................................................10
27
New York Times v. Sullivan,
28 376 U.S. 254 (1964) ...............................................................................................................12
CASE NO.: 3:20-CV-05787-SI iii NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 7 of 33
1 Nicosia v. De Rooy,
72 F. Supp. 2d 1093 (N.D. Cal. 1999) ...................................................................................12
2
ONY, Inc. v. Cornerstone Therapeutics, Inc.,
3 720 F.3d 490 (2d Cir. 2013)...................................................................................................10
4
Openwave Systems, Inc. v. Fuld,
5 2009 WL 1622164 (N.D. Cal. June 6, 2009) ...................................................................22, 23
6 Ozeran v. Jacobs,
2018 WL 1989525 (C.D. Cal. Apr. 25, 2018), aff’d, 798 F. App’x 120 (9th Cir. 2020) ......18
7
Partington v. Bugliosi,
8 56 F.3d 1147 (9th Cir. 1995) .................................................................................................10
9 POM Wonderful LLC v. Coca-Cola Co.,
10 573 U.S. 102 (2014) ...............................................................................................................15
11 POM Wonderful LLC v. Purely Juice, Inc.,
362 F. App’x 577 (9th Cir. 2009) ..........................................................................................22
12
Prager University v. Google, LLC,
13 951 F.3d 991 (9th Cir. 2020) .................................................................................................17
14 Resolute Forest Products, Inc. v. Greenpeace International,
15 302 F. Supp. 3d 1005 (N.D. Cal. 2017) .................................................................................12
16 Reves v. Ernst & Young,
507 U.S. 170 (1993) ...............................................................................................................22
17
Rice v. Fox Broadcast Co.,
18 330 F.3d 1170 (9th Cir. 2003) ...............................................................................................17
19 Royce International Broadcasting Corp. v. Field,
2000 WL 236434 (N.D. Cal. Feb. 23, 2000) .........................................................................17
20
21 Savage v. Council on Am.-Islamic Relations, Inc.,
2008 WL 2951281 (N.D. Cal. July 25, 2008)........................................................................12
22
Schreiber Distributing Co. v. Serv-Well Furniture Co.,
23 806 F.2d 1393 (9th Cir. 1986) .........................................................................................19, 22
24 Search King Inc. v. Google Technologies, Inc.,
2003 WL 21464568 (W.D. Okla. May 27, 2003) ..................................................................11
25
Sheperd v. American Honda Motor Co.,
26
822 F. Supp. 625 (N.D. Cal. 1993) ..................................................................................17, 18
27
Sikhs for Justice, Inc. v. Facebook, Inc.,
28 697 F. App’x 526 (9th Cir. 2017) ..........................................................................................14
CASE NO.: 3:20-CV-05787-SI iv NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 8 of 33
1 Sikhs for Justice (“SFJ”), Inc. v. Facebook, Inc.,
144 F. Supp. 3d 1088 (N.D. Cal. 2015) ...........................................................................13, 14
2
Snyder v. Phelps,
3 562 U.S. 443 (2011) ...............................................................................................................10
4
Sosa v. DIRECTV, Inc.,
5 437 F.3d 923 (9th Cir. 2006) .................................................................................................21
6 Southland Sod Farms v. Stover Seed Co.,
108 F.3d 1134 (9th Cir. 1997) ...............................................................................................15
7
Sugarman v. Muddy Waters Capital LLC,
8 2020 WL 633596 (N.D. Cal. Feb. 3, 2020) ...........................................................................19
9 Sybersound Records, Inc. v. UAV Corp.,
10 517 F.3d 1137 (9th Cir. 2008) ...............................................................................................18
11 ThermoLife International LLC v. American Fitness Wholesalers LLC,
2020 WL 122874 (D. Ariz. Jan. 10, 2020) ............................................................................15
12
Threshold Enterprises Ltd. v. Pressed Juicery, Inc.,
13 445 F. Supp. 3d 139 (N.D. Cal. 2020) .....................................................................................3
14 TransFresh Corp. v. Ganzerla & Assoc., Inc.,
15 862 F. Supp. 2d 1009 (N.D. Cal. 2012) .................................................................................22
16 United States v. Lew,
875 F.2d 219 (9th Cir. 1989) .................................................................................................18
17
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
18 425 U.S. 748 (1976) ...............................................................................................................16
19 Zeran v. America Online, Inc.,
129 F.3d 327 (4th Cir. 1997) .................................................................................................13
20
21 Ziglar v. Abbasi,
137 S. Ct. 1843 (2017) .............................................................................................................9
22
STATUTES, RULES, AND REGULATIONS
23
15 U.S.C. § 1127 ..............................................................................................................................14
24
18 U.S.C. § 1964(c) .........................................................................................................................17
25
47 U.S.C. § 230 ............................................................................................................2, 9, 13, 14, 23
26
Fed. R. Civ. P. 12(b)(6) ......................................................................................................................1
27
28
CASE NO.: 3:20-CV-05787-SI v NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 9 of 33
1 OTHER AUTHORITIES
2 135 Cong. Rec. H1216-17135 (Apr. 13, 1989) (statement of Rep. Kastenmeier) ...........................16
3 About WHO, WORLD HEALTH ORGANIZATION,
https://tinyurl.com/y5ltbeaf (last accessed Oct. 23, 2020) .......................................................8
4
5 Bickert, Monika, Combatting Vaccine Misinformation, FACEBOOK (Mar. 7, 2019),
https://tinyurl.com/yyazbumc ..................................................................................................4
6
Fact-Checking on Facebook, FACEBOOK FOR BUSINESS,
7 https://tinyurl.com/y33wyhe2 (last accessed Oct. 23, 2020) ...................................................3
8 How Our Fact-Checking Program Works, FACEBOOK JOURNALISM PROJECT,
https://tinyurl.com/y57sx6n3 (last accessed Oct. 23, 2020) ....................................................3
9
10 Restatement (Second) of Torts § 538A ............................................................................................20
11 Terms of Service, FACEBOOK,
https://www.facebook.com/terms.php (last accessed Oct. 23, 2020) ......................................3
12
13
14
15
16
17
18
19
20
21
22
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CASE NO.: 3:20-CV-05787-SI vi NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 10 of 33
1 NOTICE OF MOTION AND MOTION TO DISMISS
2 PLEASE TAKE NOTICE THAT, on February 5, 2021 at 10:00am or as soon thereafter as
3 the matter may be heard, in Courtroom I of the U.S. District Court for the Northern District of
4 California, San Francisco Division, at 450 Golden Gate Avenue, San Francisco, California, this
5 Motion to Dismiss filed by Facebook, Inc. and Mark Zuckerberg will be heard. Pursuant to
6 Federal Rule of Civil Procedure 12(b)(6), defendants move to dismiss the complaint on the
7 grounds that its claims are barred by both the First Amendment and Section 230 of the
8 Communications Decency Act, and that plaintiff has otherwise failed to state claims upon which
9 relief can be granted. Defendants’ Motion to Dismiss is based on this Notice of Motion, the
10 Memorandum of Points and Authorities, and the supporting Declaration of Molly M. Jennings.
11 STATEMENT OF REQUESTED RELIEF
12 Pursuant to Federal Rule of Civil Procedure 12(b)(6), Facebook and Mark Zuckerberg
13 request that the Court dismiss the complaint with prejudice.
14 MEMORANDUM OF POINTS AND AUTHORITIES
15 This lawsuit asks the Court to step far outside its role as adjudicator of legal disputes and
16 instead become an arbiter of what science has, to date, established as definitively “true” or “false”
17 regarding vaccines. According to CHD, “[u]nvaccinated kids are healthier” than vaccinated
18 children, Compl. ¶ 71, and vaccines are responsible for infant deaths, id. ¶ 95. Facebook’s third-
19 party independent fact-checkers designated several of CHD’s vaccine-related posts as containing
20 false information and provided detailed explanations supporting those designations. Facebook
21 labeled those posts according to its fact-checkers’ conclusions, and provided its users with the
22 fact-checkers’ reasoning such that users could evaluate the conclusions for themselves. Facebook
23 also restricted CHD’s ability to share information identified as false or partly false.
24 CHD now claims that Facebook’s policies and actions violated its First Amendment rights,
25 injured its position in the “marketplace of ideas,” Compl. ¶ 191, and constituted a RICO
26 enterprise. But CHD gets the First Amendment analysis exactly backward. The First Amendment
27 is a shield from government action—not a sword to be used against a private entity. In light of
28
CASE NO.: 3:20-CV-05787-SI -1- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 11 of 33
1 CHD’s skewed understanding of the fundamental principles implicated by its lawsuit, it is little
2 surprise that the Complaint suffers from numerous fatal, independent, and incurable defects.
3 First, the Complaint fails to state a Bivens claim because it does not plausibly allege federal
4 action. Facebook and Mark Zuckerberg are private actors. Facebook exercised its own editorial
5 discretion to reduce the visibility of posts identified as false or partially false. The Complaint does
6 not plausibly allege that any federal actor was so intertwined with Facebook’s decisions with
7 respect to CHD’s content that the federal government can be deemed responsible for them. And it
8 does not plausibly allege that Mr. Zuckerberg was personally involved at all in those decisions.
9 Second, far from violating the First Amendment, Facebook’s decisions to label and limit the
10 visibility of CHD’s content are themselves protected by the First Amendment. In this context,
11 CHD must, at a minimum, plausibly allege that Facebook acted with actual malice, which it has
12 not—and cannot—do.
13 Third, Section 230 of the Communications Decency Act (“CDA”) shields Facebook from
14 liability for restricting access to and/or demoting CHD’s content.
15 Fourth, the Lanham Act claim fails because CHD does not have standing under that statute
16 and because it does not allege any false promotional statement. CHD claims to compete with
17 Facebook in the “marketplace of ideas”—but that is not a cognizable economic market.
18 Moreover, the alleged false statements (i.e., that CHD’s posts contain false or misleading
19 information) are not promotional statements cognizable under the Act.
20 Fifth, CHD fails to state a claim under RICO because it has not suffered a sufficiently
21 “direct” injury to confer statutory standing and has not adequately pleaded any predicate acts.
22 Sixth, the Complaint additionally fails to state a claim against Mark Zuckerberg because it
23 does not plausibly allege that he was personally involved in any of the allegedly unlawful conduct.
24 These deficiencies cannot be cured by amendment. No amended allegations can convert
25 Facebook and Mr. Zuckerberg into federal actors for purposes of Bivens or change the binding
26 precedent that precludes expanding Bivens under circumstances present here. No amended
27 allegations can alter the defenses accorded to Facebook and Mr. Zuckerberg under the First
28 Amendment and Section 230 of the CDA. And no amended allegations could bring CHD’s
CASE NO.: 3:20-CV-05787-SI -2- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 12 of 33
1 Lanham Act claim within the zone of interests protected by that statute or turn Defendants’ actions
2 here into an actionable RICO conspiracy. CHD’s claims should be dismissed with prejudice.
3 BACKGROUND
4 A. Facebook Uses Third-Party Fact-Checkers To Identify Misinformation
5 Facebook is a social media website with 2.2 billion users worldwide. Compl. ¶ 6.
6 Facebook users can maintain their own Facebook Pages; share status updates, photos, videos, and
7 stories on those Pages; and browse for content through their News Feed. Terms of Service,
8 FACEBOOK, https://www.facebook.com/terms.php (last accessed Oct. 23, 2020). 1
9 As part of its “commit[ment] to fighting the spread of misinformation,” Facebook has
10 developed a fact-checking program to identify false or misleading information on its platform.
11 Fact-Checking on Facebook, FACEBOOK FOR BUSINESS, https://tinyurl.com/y33wyhe2 (last
12 accessed Oct. 23, 2020) (Jennings Decl. Ex. 1 at 1). 2 Facebook has explained that it “rel[ies] on
13 independent fact-checkers”—like Science Feedback and PolitiFact, Compl. ¶¶ 119, 123—“to
14 identify and review potential misinformation” because it does “not believe that a private company
15 like Facebook should be the arbiter[] of truth.” How Our Fact-Checking Program Works,
16 FACEBOOK JOURNALISM PROJECT, https://tinyurl.com/y57sx6n3 (last accessed Oct. 23, 2020)
17 (Jennings Decl. Ex. 2 at 2). 3 Facebook’s third-party fact-checkers “are certified through the non-
18 partisan International Fact-Checking Network (IFCN).” Jennings Decl. Ex. 1 at 1. The fact-
19 checkers review potentially misleading information and rate it as false, altered, partly false,
20 missing context, satire, or true. Id.; Compl. ¶¶ 120, 123.
21 When users share content identified as containing false information, Facebook responds by
22 “surfacing fact-check articles to users … and showing labels on top of false stories.” Jennings
23
1
The Complaint incorporates the Terms of Service by reference; they therefore may be considered
24 in deciding this Motion to Dismiss. See Compl. ¶¶ 34-37; Knievel v. ESPN, 393 F.3d 1068, 1076-
77 (9th Cir. 2005) (considering website under “‘incorporation by reference’ doctrine”).
25
2
The Complaint also incorporates this webpage by reference. See Compl. ¶ 120.
26 3
The Court may take judicial notice of this website for its existence and content. See Threshold
27 Enters. Ltd. v. Pressed Juicery, Inc., 445 F. Supp. 3d 139, 146 (N.D. Cal. 2020). It cannot
reasonably be disputed that Facebook made the quoted statement as that fact can be readily
28 determined from sources whose accuracy cannot reasonably be disputed. See id. at 145.
CASE NO.: 3:20-CV-05787-SI -3- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 13 of 33
1 Decl. Ex. 2 at 2. When a user shares a link that fact-checkers have identified as containing false
2 information, the image previewing the link is covered by a transparent grey overlay identifying the
3 link as containing “False” or “Partly False Information.” E.g., Compl. ¶¶ 71, 95. The grey
4 overlays allow users to click to “See [the] Link” that fact-checkers identified as containing false
5 information and also to click a button to “See Why” the link was so identified. E.g., id. ¶ 71. Upon
6 clicking “See Why,” users see a summary from the factchecker identifying: the nature of the
7 designation, such as “false” or “partly false”; a definition of that designation; the factchecker
8 responsible for the designation; and a brief explanation. See, e.g., id. ¶¶ 73, 81, 97. Users can click
9 on the summary for greater detail. E.g. id. ¶ 75, 83, 98. Content rated as “False, Altered or Partly
10 False[ ] will [also] appear lower in News Feed … and be featured less prominently in Feed and
11 Stories.” Jennings Decl. Ex. 1 at 2.
12 Facebook also takes action against Pages that repeatedly share information rated as “False”
13 or “Altered.” Jennings Decl. Ex. 1 at 2. Facebook may, for example, reduce the distribution of
14 such Pages or remove their ability to advertise or solicit donations on the platform. Id.
15 As relevant here, Facebook announced in March 2019 that it would “reduce the ranking of
16 groups and Pages that spread misinformation about vaccinations in News Feed and Search” and
17 “remove access to our fundraising tools for Pages that spread misinformation about vaccinations.”
18 Bickert, Combatting Vaccine Misinformation, FACEBOOK (Mar. 7, 2019),
19 https://tinyurl.com/yyazbumc (Jennings Decl. Ex. 3 at 2-3). 4 Six months later, Facebook
20 announced that it was “starting to roll out more ways to connect people with authoritative
21 information about vaccines on Facebook,” including links to the World Health Organization’s
22 (“WHO”) website, “when people come across misinformation on this topic.” Id. 5
23
24
25
4
The Complaint quotes this article at length, see ¶ 41, thereby incorporating it by reference.
26 5
The Complaint devotes considerable space to questions of 5G network safety, Compl. ¶¶ 141-
27 150, Facebook’s efforts to remove misleading information about 5G networks, id. ¶ 48, and
Facebook’s alleged interest in promoting 5G networks, id. ¶¶ 163-170, but does not allege that
28 Facebook labeled or demoted any CHD content relating to 5G networks.
CASE NO.: 3:20-CV-05787-SI -4- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 14 of 33
1 B. Facebook Labels and Demotes CHD Content Identified By Third-Party Fact-
Checkers As Containing False Information
2
CHD uses its Facebook Page to share articles and videos, including pieces concerning “the
3
risks and harmful effects of chemical exposure upon prenatal and children’s health, including from
4
particular vaccines.” Compl. ¶ 14.
5
Between January 15, 2019, and June 18, 2020, Facebook’s fact-checkers labeled six CHD
6
vaccine-related posts as containing false or partly false information, resulting in the application of
7
various restrictions to the underlying content. Id. ¶¶ 60, 65, 69, 77, 89, 94-95. 6 For example, on
8
May 28, 2020, Facebook applied a grey overlay with the text “False Information Checked by
9
independent fact-checkers” to a link to an article CHD shared claiming to “Clarif[y] Health
10
Outcome in Vaccinated versus Unvaccinated Children.” Id. ¶ 71. Upon clicking the “See Why”
11
button, users were informed that Science Feedback had identified the article as containing false
12
information because “[v]accinated children do not have greater risk of adverse health outcomes in
13
comparison to unvaccinated.” Id. ¶ 73. Users could click on the summary to further read that
14
Science Feedback identified the claim that “[v]accinated children are more likely to have adverse
15
health outcomes” as “unsupported” because it is “based on a single study which used highly
16
biased methods”; “failed to control for confounding factors in its comparison of vaccinated and
17
unvaccinated children,” such as “healthcare-seeking behavior”; and “used patient data from
18
handpicked pediatric clinics only.” Id. ¶ 75.
19
In addition to action at the level of individual posts, Facebook also took action against CHD
20
at the account level as a result of CHD’s repeated violations of Facebook’s policy against sharing
21
misleading information, as identified by Facebook’s fact-checkers. In May 2019, for example,
22
Facebook deactivated the “donate” button on CHD’s page. Compl. ¶ 100. And on September 4,
23
2019, Facebook published a warning at the top of CHD’s Facebook Page, reading:
24
25
26
27
6
This brief addresses only the defects in CHD’s claims against Defendants Facebook and Mark
28 Zuckerberg, but the claims against the fact-checker defendants are flawed for similar reasons.
CASE NO.: 3:20-CV-05787-SI -5- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 15 of 33
1 This Page posts about vaccines.
2 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
3 have about vaccines.
4
Go to CDC.gov.
5 Id. ¶ 44.
6 ARGUMENT
7 I. CHD HAS NOT STATED A BIVENS CLAIM (COUNT I)
8 CHD claims that Facebook violated CHD’s First Amendment rights by labeling as “false”
9 and demoting its posts, Compl. ¶¶ 177, 184, and violated CHD’s Due Process rights by disabling
10 the “donate” button on CHD’s Facebook Page, id. ¶ 185. CHD seeks damages for those alleged
11 deprivations under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
12 U.S. 388 (1971), which created “an implied private action for damages against federal officers
13 alleged to have violated a citizen’s constitutional rights.” Correctional Servs. Corp. v. Malesko,
14 534 U.S. 61, 66 (2001). CHD cannot overcome limitations on the Bivens doctrine that preclude its
15 expansion to this novel context.
16 A. The Complaint Does Not Plausibly Allege Federal Action
17 To start, Bivens provides a remedy only against “individual federal officers.” Malesko, 534
18 U.S. at 70 (emphasis added). It can be applied to private actors, such as Defendants, only where
19 their conduct is so intertwined with that of federal actors that “it is fair to attribute the challenged
20 actions” to the federal government. Morse v. North Coast Opportunities, Inc., 118 F.3d 1338,
21 1343 (9th Cir. 1997). Distinguishing private from federal actors is no mere technicality; it is
22 crucial to “preserv[ing] an area of individual freedom by limiting the reach of federal law and
23 federal judicial power.” Lugar v. Edmonson Oil Co., 457 U.S. 922, 936 (1982). This is particularly
24 so in the First Amendment context. Using the First Amendment to sanction private conduct, as
25 CHD seeks to do, “could eviscerate certain private entities’ rights to exercise editorial control over
26 speech and speakers on their properties or platforms.” Manhattan Cmty. Access Corp. v. Halleck,
27 139 S. Ct. 1921, 1932 (2019).
28
CASE NO.: 3:20-CV-05787-SI -6- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 16 of 33
1 The Complaint tries, but fails, to allege federal action under a “joint action” theory. See
2 Compl. ¶ 177. The “joint action” doctrine applies only where government “‘officials and private
3 parties have acted in concert in effecting a particular deprivation of constitutional rights.’”
4 Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002). Mere “regulatory interest in a problem” does
5 not “transform[] any subsequent private efforts to address the problem (even those expressly
6 designed to obviate the need for regulation) into state action.” Mathis v. Pacific Gas & Elec. Co.,
7 75 F.3d 498, 503 (9th Cir. 1995). Rather, there must be a “substantial degree of [government]
8 cooperation,” Franklin, 312 F.3d at 446, such that the federal actors are “responsible for the
9 specific conduct of which the plaintiff complains,” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
10 CHD attempts to establish joint action between Defendants and Representative Adam
11 Schiff, the CDC, and the WHO. But the Complaint does not establish that any government official
12 substantially cooperated in any of the conduct that CHD claims violated its First Amendment and
13 Due Process rights. With respect to Representative Schiff, CHD points to a letter generally
14 encouraging Facebook to take action related to vaccine misinformation, Compl. ¶ 38, and his
15 statements exhorting Congress to take action to hold social media companies liable for third-party
16 content, id. ¶ 39. But to transform private actions (like those challenged here, see id. ¶¶ 4, 60-99,
17 100, 111) into state action, the federal actor must provide the “substantive standard” that dictated
18 the private actor’s decisions. Morse, 118 F.3d at 1339. Because Representative Schiff’s letter
19 provided no substantive standard by which to identify “vaccine misinformation” or determine
20 what action to take against it, the letter cannot establish state action. Neither can his general
21 statement regarding what Congress “could or should” do. Compl. ¶ 39. As noted, mere “regulatory
22 interest in a problem” does not convert private into state action. Mathis, 75 F.3d at 503. If it did,
23 statements (or posts or tweets) from politicians or regulators, suggesting (or encouraging or
24 urging) virtually any private conduct could lead to private liability under Bivens. The Complaint
25 thus fails to plead joint action with respect to Representative Schiff.
26 As for the CDC and WHO, CHD alleges only that Facebook adopted the CDC’s and
27 WHO’s definitions of “vaccine hoaxes” and, following discussions with the WHO, identified the
28 CDC and WHO as authoritative sources of vaccine information, Compl. ¶¶ 179-180. But sharing
CASE NO.: 3:20-CV-05787-SI -7- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 17 of 33
1 information does not establish joint action. See Federal Agency of News LLC v. Facebook, Inc.,
2 432 F. Supp. 3d 1107, 1125 (N.D. Cal. 2020). And in any event, the CDC did not even do that
3 much; Facebook simply identified it as a source of information. Indeed, there is no allegation that
4 the CDC actually did anything, let alone that it was “involved with the activity that caused the
5 injury giving rise to the action.” Federal Agency of News LLC, 432 F. Supp. 3d at 1125. And the
6 WHO is not a federal actor; it is an international organization comprised of representatives from
7 194 member states. 7 Although the United States is a member of the WHO, a state’s membership in
8 a multilateral government body does not make that body’s conduct state action. See NCAA v.
9 Tarkanian, 488 U.S. 179, 183, 193 (1988). CHD therefore does not properly plead joint action
10 with respect to either the CDC or WHO.
11 B. Neither Facebook Nor Mark Zuckerberg Is A Proper Bivens Defendant
12 CHD’s Bivens claim independently fails because Facebook and Mr. Zuckerberg are not
13 proper Bivens defendants. Bivens is a remedy against individuals, not entities. See FDIC v. Meyer,
14 510 U.S. 471, 485 (1994). “The purpose of Bivens is to deter individual federal officers from
15 committing constitutional violations.” Malesko, 534 U.S. at 70 (emphasis added). Because claims
16 against “corporate defendant[s]” do not serve that purpose, they are “foreclosed.” Id. at 71. The
17 claim against Facebook must therefore be dismissed.
18 As to Mr. Zuckerberg, the Complaint fails to plausibly allege that he, “through [his] own
19 individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (no
20 vicarious liability under Bivens). Aside from wholly conclusory allegations regarding Mr.
21 Zuckerberg’s involvement, see Compl. ¶¶ 8, 114, 195, 199, the Complaint alleges only that he has
22 a personal interest in vaccines, id. ¶¶ 7, 151, 160, 162; that he is aware of and involved at a very
23 high level with Facebook’s efforts to remove misinformation, id. ¶¶ 39, 48, 58, 108, 152; and that
24 he has been personally involved in some decisions whether to remove content unrelated to
25
7
26 About WHO, WORLD HEALTH ORGANIZATION, https://tinyurl.com/y5ltbeaf (last accessed Oct.
23, 2020). Judicial notice is appropriate because this information was provided by a government
27 entity and is “capable of accurate and ready determination by resource to sources whose accuracy
cannot reasonably be questioned.” Daniels-Hall v. National Educ. Ass’n, 629 F.3d 992, 999 (9th
28 Cir. 2010).
CASE NO.: 3:20-CV-05787-SI -8- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 18 of 33
1 vaccines (i.e., a post by President Trump and a manipulated video of House Speaker Pelosi), id.
2 ¶¶ 118, 155. Those allegations fall far short of establishing any reasonable inference of personal
3 constitutional liability.
4 C. The Bivens Claim Requires An Unwarranted Expansion Of Bivens Liability
5 The defects described above are separately dispositive of CHD’s Bivens claim. But even if
6 they were not, CHD’s claim also should be dismissed because it would require the Court to
7 expand Bivens liability in ways that would encroach on constitutional and statutory protections
8 that apply not only to Facebook, but to technology companies and private actors more broadly.
9 No court has applied Bivens to hold a private social-media platform liable for exercising its
10 editorial judgment. Applying Bivens here would therefore be “different in a meaningful way from
11 previous Bivens cases,” Ziglar v. Abbasi, 137 S. Ct. 1843, 1859 (2017), because it would raise
12 First Amendment concerns not addressed in previous Bivens cases. That is a significant problem
13 for CHD, because “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” id. at
14 1857, and courts must decline to expand Bivens where “special factors counsel[] hesitation” and
15 “alternative remed[ies]” are available, Carlson v. Green, 446 U.S. 14, 18 (1980).
16 Moreover, courts should not craft constitutional remedies where there are “sound reasons
17 to think Congress might doubt the efficacy or necessity” of such remedies. Ziglar, 137 S. Ct. at
18 1858. Here, there are two such reasons. For one, Congress chose to expressly preempt federal and
19 state claims that target decisions by companies like Facebook to remove or restrict access to
20 content like this. See 47 U.S.C. § 230(c). This Court should not create the remedy that Section 230
21 precludes. See infra pp. 13-14. Second, allowing Bivens suits against private parties based on
22 editorial decisions “could eviscerate certain private entities’ rights to exercise editorial control
23 over speech and speakers on their properties or platforms.” Manhattan Cmty. Access Corp., 139 S.
24 Ct. at 1932. See infra p. 11.
25
26
27
28
CASE NO.: 3:20-CV-05787-SI -9- NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 19 of 33
1 II. THE FIRST AMENDMENT BARS THE REMAINDER OF CHD’S CLAIMS
(COUNTS 2 & 3)
2
A. The First Amendment Protects Facebook’s Statements And Content-
3 Moderation Decisions
4 Alleging various harms to its position in the “marketplace of ideas,” Compl. ¶ 191, CHD
5 seeks to hold Facebook liable for publishing a warning label on its Facebook page, labeling
6 several of its posts as containing false or partly false information, and using algorithms to limit the
7 reach of CHD’s content. Compl. ¶¶ 41, 111. But “[t]he First Amendment creates an open
8 marketplace where ideas … may compete without government interference. It does not call on the
9 federal courts to manage th[at] market … .” New York State Bd. of Elecs. v. Lopez Torres, 552
10 U.S. 196, 208 (2008). CHD asks this Court to do precisely what the First Amendment forbids.
11 As to the warning label and fact-checks, the speech here at issue lies within the core of the
12 First Amendment’s protections: a “dialogue of ideas” on a “matter[] of public concern.” Snyder v.
13 Phelps, 562 U.S. 443, 452-453 (2011). CHD itself characterizes vaccine safety as a matter of
14 “open scientific controversy” of interest to the public. Compl. ¶¶ 33, 87. It takes issue with certain
15 conclusions related to that controversy that Facebook communicated (i.e. that its fact-checkers
16 identified certain articles shared by CHD as containing false information) and the validity of the
17 analyses underlying those conclusions, see, e.g., Compl. ¶ 76; but sharing a conclusion together
18 with “the factual basis for [that] conclusion … is protected by the First Amendment.” Partington
19 v. Bugliosi, 56 F.3d 1147, 1156 (9th Cir. 1995). Indeed, that is the fundamental process of public
20 and scientific dialogue that the Constitution safeguards. And where speech is based on scientific
21 inferences drawn from available information (e.g. Compl. ¶ 98 (fact-check concluding that post
22 contained partly false information because it failed to account for data-collection problems with
23 underlying data and other confounding variables), it is particularly beyond the ken of legal
24 adjudication. “Scientific academic discourse” does not fit within the “fact-opinion paradigm of
25 [the] First Amendment.” ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490, 496 (2d Cir.
26 2013). CHD asks this Court to moderate a self-described scientific controversy by deciding as a
27 matter of law whose scientific inferences are true and whose are false. But this Court should not
28 “undertake to referee such controversies.” Id. at 497.
CASE NO.: 3:20-CV-05787-SI - 10 - NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 20 of 33
1 The First Amendment also protects Facebook’s moderation decisions, including decisions
2 to reduce the distribution of certain content or restrict access to certain features by those who
3 repeatedly share misinformation. “Facebook[ has a] First Amendment right to decide what to
4 publish and want not to publish on its platform.” La’Tiejira v. Facebook, Inc., 272 F. Supp. 3d
5 981, 991 (S.D. Tex. 2017); see also Miami Herald v. Tornillo, 418 U.S. 241, 257-258 (1974)
6 (First Amendment protects a newspaper’s right to “exercise editorial control and judgment,” a
7 right that includes the “choice of material to go into the newspaper”). Accordingly, the decision to
8 filter or demote content is a protected editorial judgment. See Jian Zhang v. Baidu.com Inc., 10 F.
9 Supp. 3d 433, 443 (S.D.N.Y. 2014) (First Amendment protects decision to block content from
10 search results); accord Langdon v. Google, Inc., 474 Supp. 2d 622, 629-630 (D. Del. 2007)
11 (similar); Search King Inc. v. Google Tech., Inc., 2003 WL 21464568, at *4 (W.D. Okla. May 27,
12 2003) (similar). The same is true of decisions to restrict access to advertising or fundraising tools.
13 Advertisements and fundraising solicitations carry messages—even if not always “narrow [and]
14 succinctly articulable”—and Facebook cannot be compelled to carry others’ messages. Hurley v.
15 Irish Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569-570 (1995). Like the parade
16 organizers in Hurley, Facebook’s decision to exclude certain of CHD’s messages is protected
17 speech.
18 B. CHD Cannot Recover For Alleged False Statements Absent Actual Malice
19 Even if CHD (and this Court) could establish that Facebook’s warnings and fact-checks
20 were false, those statements are nonetheless protected as CHD has failed to plausibly allege actual
21 malice. CHD’s public involvement in the debate on vaccine safety makes it a limited-purpose
22 public figure as to that debate. CHD is a limited-purpose public figure because: (1) it alleges that a
23 public controversy regarding vaccine safety existed when the statements at issue were made, see,
24 e.g., Compl. ¶¶ 7, 26, 130-140; (2) the alleged false statements related to CHD’s participation in
25 that controversy, see, e.g., Compl. ¶ 44; and (3) CHD voluntarily injected itself into that
26 controversy for the purpose of influencing its resolution, see, e.g., Compl. ¶¶ 14-15. See Makaeff
27 v. Trump Univ., LLC, 715 F.3d 254, 266 (9th Cir. 2013) (laying out test).
28
CASE NO.: 3:20-CV-05787-SI - 11 - NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 21 of 33
1 Because CHD is a limited public figure, it cannot hold Facebook liable for alleged false
2 statements without plausibly alleging actual malice (i.e., knowledge that the warning and fact-
3 checks were false or reckless disregard for their truth or falsity). See New York Times v. Sullivan,
4 376 U.S. 254, 279-280 (1964). This standard applies to claims under the Lanham Act, see
5 Eastwood v. National Enquirer, Inc., 123 F.3d 1249, 1250-1251 (9th Cir. 1999), and civil RICO,
6 Savage v. Council on Am.-Islamic Relations, Inc., 2008 WL 2951281, at *12 (N.D. Cal. July 25,
7 2008). CHD therefore must allege with specificity that Facebook made the statements “with a
8 ‘high degree of awareness of … probable falsity’ or must have ‘entertained serious doubts as to
9 the truth of [the] publication.’” Harte-Hanks Commc’ns Inc. v. Connaughton, 491 U.S. 657, 667
10 (1989); see also Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1108 (N.D. Cal. 1999) (“[A]ctual
11 malice must be pled with specificity.”). CHD’s attempts to provide more than “[t]hreadbare
12 recitals” of actual malice fall short of that minimum. See Iqbal, 556 U.S. at 678.
13 As to the warning label, CHD alleges that “Facebook was on notice that CHD was not
14 promoting ‘misinformation’ of any sort” and had “‘obvious reasons to doubt the veracity’ of its
15 warning label” in light of a letter CHD sent to Facebook in March 2019. Compl. ¶¶ 211-212. But
16 nothing in the letter—not its references to articles acknowledging that some ingredients used in
17 some vaccines can in some circumstances be harmful, see Compl. Ex. A at 8-9; not the fact that
18 discontinued vaccines were known to cause harm, id. at 4, 6; and not general statements that
19 conventional wisdom in medicine may be false, id. at 3—establishes that CHD does not post
20 misleading or out-of-date information to its Facebook Page. And in any event, the letter is
21 immaterial because CHD does not allege that it was read by “the individual responsible for
22 publication” of the warning. Resolute Forest Prods. v. Greenpeace Int’l, 302 F. Supp. 3d 1005,
23 1018 (N.D. Cal. 2017). CHD also alleges that “defendants harbor an adverse motive to profit from
24 their unfettered development of vaccines.” Compl. ¶ 214. But a publisher’s motive alone “cannot
25 provide a sufficient basis for finding actual malice.” Harte-Hanks, 491 U.S. at 665.
26 As to the fact-checks, CHD fails to allege with any specificity that Facebook either knew
27 they were false or harbored serious doubt as to their truth. Facebook’s fact-checks relied on the
28 judgments of internationally certified independent fact-checkers. Absent any specific allegation of
CASE NO.: 3:20-CV-05787-SI - 12 - NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 22 of 33
1 contrary knowledge, “reli[ance] upon the integrity of a reputable [source]” defeats an allegation of
2 malice. See Chaiken v. VV Publ’g Corp., 119 F.3d 1018, 1032 (2d Cir. 1997). CHD therefore has
3 not alleged actual malice by either Facebook or Mr. Zuckerberg.
4 III. THE CDA ALSO BARS CHD’S LANHAM ACT AND CIVIL RICO CLAIMS
(COUNTS 2 & 3)
5
Section 230 of the CDA preempts claims that target decisions by services like Facebook to
6
show or restrict access to content created by third parties. See Barnes v. Yahoo!, Inc., 570 F.3d
7
1096, 1102 (9th Cir. 2009); Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).
8
Section 230(c)(1) of the CDA applies whenever a claim would treat a “provider” of an “interactive
9
computer service” as the “publisher” of content “provided by another information content
10
provider.” 47 U.S.C. § 230(c)(1). It therefore protects Facebook and Mr. Zuckerberg from claims
11
based on their making available third-party fact-checks and their restriction of access to certain
12
CHD-created content. Accordingly, the CDA bars CHD’s Lanham Act and civil RICO claims.
13
Facebook and Mr. Zuckerberg are each “provider[s]” of an “interactive computer service.”
14
The Facebook platform is an “interactive computer service” that Facebook, Inc. provides. See,
15
e.g., Sikhs for Justice (“SFJ”), Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1093 (N.D. Cal.
16
2015). Mr. Zuckerberg likewise falls within the CDA because CHD seeks to hold him liable for
17
“his role in making [an interactive computer service] available.” Klayman v. Zuckerberg, 753 F.3d
18
1354, 1357-1358 (D.C. Cir. 2014). CHD’s allegations against Mr. Zuckerberg stem from his role
19
in “direct[ing] and control[ing] Facebook’s business.” Compl. ¶ 19; see also id. ¶¶ 38-39, 58, 108.
20
He is thus subject to the same CDA protections as Facebook itself.
21
Section 230(c)(1) bars both of CHD’s primary theories. First, CHD cannot hold Facebook
22
or Mr. Zuckerberg liable for the overlays, warnings, and explanations attached to particular CHD
23
posts because those fact-checks were undisputedly performed by third parties. In making the
24
results of those fact-checks available, Facebook did no more than aggregate information provided
25
by others. As the Ninth Circuit has held (in the context of Yelp’s star rating system), a “‘neutral
26
tool[]’ operating on ‘voluntary inputs’ … [does] not amount to content development.” Kimzey v.
27
Yelp, Inc., 836 F.3d 1263, 1269-1270 (9th Cir. 2016). Holding Facebook or Mr. Zuckerberg liable
28
CASE NO.: 3:20-CV-05787-SI - 13 - NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 23 of 33
1 for the content of third-party fact-checks would treat them as the “publisher[s]” of that third-party
2 content, which Section 230(c)(1) expressly prohibits.
3 Second, neither Facebook nor Mr. Zuckerberg can be held liable for restricting user access
4 to articles shared by CHD after fact-checkers identified them as containing false information.
5 Those posts were created by either CHD or reposted by CHD from other websites, meaning they
6 were created by “another information content provider.” 47 U.S.C. § 230(c)(1); see also Sikhs for
7 Justice, Inc. v. Facebook, Inc., 697 F. App’x 526, 526 (9th Cir. 2017); Fyk v. Facebook, Inc., 808
8 F. App’x 597, 598 (9th Cir. 2020); Federal Agency of News LLC v. Facebook, Inc., 432 F. Supp.
9 3d at 1119-1120. And imposing liability for restricting access to CHD’s posts would treat
10 Facebook and Mr. Zuckerberg as the publisher of those posts: “[R]emoving content is something
11 publishers do, and to impose liability on the basis of such conduct necessarily involves treating the
12 liable party as a publisher.” Sikhs, 144 F. Supp. 3d at 1095. It does not matter that CHD’s content
13 was not taken down in its entirety, but instead was restricting from appearing in many users’ news
14 feeds. Publishing is not all or nothing; a publisher does not lose protection simply because it
15 publishes to some audiences and not others. In Sikhs for Justice, for example, the content at issue
16 allegedly was only restricted from publication in India, yet Section 230(c)(1) still applied. 144 F.
17 Supp. 3d at 1093; see also Greater L.A. Agency on Deafness, Inc. v. CNN, Inc., 742 F.3d 414, 422
18 (9th Cir. 2014) (depublishing from deaf viewers). Facebook and Mr. Zuckerberg therefore cannot
19 be held liable for actions that limited the reach of CHD’s posts.
20 IV. CHD HAS NOT STATED A CLAIM UNDER THE LANHAM ACT (COUNT 2)
21 Even absent immunity, the Complaint fails to state a claim. CHD also cannot shoehorn an
22 “ongoing scientific controversy” into a Lanham Act false advertising claim. The Lanham Act’s
23 exists to “protect persons engaged in … commerce against unfair competition.” 15 U.S.C. § 1127.
24 It regulates false advertising and commercial speech in the interest of fair competition between
25 those engaged in commerce, not disputes over the veracity of public-health related claims between
26 publishers and those who use their platforms. CHD fails to state a claim under the Lanham Act
27 because its interests do not “fall within the zone of interests protected by the law,” Lexmark Int’l,
28 Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 (2014), and because it has not plausibly
CASE NO.: 3:20-CV-05787-SI - 14 - NOTICE OF MOT. AND MOT. TO DISMISS;
MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 24 of 33
1 alleged a promotional statement within the Act’s scope.
2 A. CHD Lacks Standing Under The Lanham Act
3 The Lanham Act reaches only “competitive” injuries, that is, injuries “harmful to the
4 plaintiff’s ability to compete with the defendant.” ThermoLife Int’l LLC v. American Fitness
5 Wholesalers LLC, 2020 WL 122874, at *3 (D. Ariz. Jan. 10, 2020); see also Lexmark Int’l, 572
6 U.S. at 129, 131-132. CHD strains to fit its Lanham Act claims into this paradigm, claiming that it
7 competes with Defendants “in the marketplace of ideas.” Compl. ¶ 191. That allegation is
8 insufficient. “No court has held that Lanham Act competitors may be other than business
9 competitors. A theoretical educational competition for the ‘hearts and minds’ of consumers is
10 insufficient to give [CHD] Lanham Act standing.” Animal Legal Defense Fund v. HVFG LLC, 939
11 F. Supp. 2d 992, 1000 (N.D. Cal. 2013).
12 Indeed, CHD’s claimed injury is really to its interests as Facebook’s customer, not its
13 competitor. See POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 107 (2014) (Lanham Act
14 false advertising cause of action is “not [for] consumers”). In particular, CHD alleges it was
15 injured because Facebook limited the “visibility and reach” of its Facebook Page, which in turn
16 reduced its advertising revenue, website traffic, and goodwill. Compl. ¶¶ 103, 127, 128. But these
17 alleged harms all purportedly resulted from Facebook’s “enforcement of its policies to those who
18 post on its website,” and are therefore injuries “incurred by interacting with [Facebook] as a
19 consumer, not as a competitor.” Lewis v. Google LLC, 2020 WL 2745253, at *13 (N.D. Cal. May
20 20, 2020). CHD therefore lacks statutory standing under the Lanham Act.
21 B. The Complaint Does Not Identify A Promotional Statement
22 CHD independently fails to state a claim under the Lanham Act because it has not alleged
23 the first element of a false advertising claim: “a false statement of fact by the defendant in a
24 commercial advertisement about its own or another’s product,” Southland Sod Farms v. Stover
25 Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997)—that is, a “promotion[al]” statement, Coastal
26 Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999). To qualify as
27 promotional, a statement must be “encompassed within the ‘commercial speech’ doctrine
28 developed by the United States Supreme Court.” Gordon & Breach Science Pubs. S.A. v.
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MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 25 of 33
1 American Inst. of Physics, 859 F. Supp. 1521, 1533-1534 (S.D.N.Y. 1994) (quoting 134 Cong.
2 Reg. 31,851 (Oct. 19, 1988) (statement of Rep. Kastenmeier)). This is a “constitutional
3 requirement” that prevents the Lanham Act from burdening “the type [of speech] which raise[s]
4 free speech concerns, such as … reviews … [and] misrepresentations made by interested groups
5 which may arguably disparage a company and its products.” Id. at 1533, 1536 (second quoting
6 135 Cong. Rec. H1216-17135 (Apr. 13, 1989) (statement of Rep. Kastenmeier)) (emphasis
7 omitted).
8 The Complaint does not identify any purportedly false commercial speech. CHD attempts to
9 hang its Lanham Act claim on the “warning label and ‘fact checks’” Facebook published on
10 CHD’s Page, Compl. ¶ 190, but neither provides the constitutionally required commercial hook.
11 Commercial speech, at its core, is that which “does no more than propose a commercial
12 transaction.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
13 U.S. 748, 762 (1976). But here, Facebook’s warnings and fact checks do not propose commercial
14 transactions at all. Instead, they describe the content of CHD’s Page, Compl. ¶ 44; direct viewers
15 to freely available information about vaccine safety, id.; and categorize various CHD posts as
16 containing “false” or “partly false” information, e.g. id. ¶¶ 61, 66, 68.
17 That Facebook allegedly published its warning and fact-checks as “part of [its] ongoing
18 vaccine misinformation public relations campaign,” itself allegedly part of “Facebook’s business
19 model” of “manufactur[ing] users’ ‘trust,’” Compl. ¶ 192, does not make them commercial in
20 nature. First, even if true that Facebook derived some financial benefit from the warning label and
21 fact-checks, “economic motive in itself is insufficient to characterize a publication as
22 commercial.” Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 960 (9th Cir. 2012). Second,
23 and in any event, the complaint does not identify anything in the warning label or fact-checks that
24 relate to Facebook’s alleged business model of building trust regarding “user privacy and data
25 security.” Compl. ¶192. The warning label and fact-checks communicate information about
26 CHD’s posts, not Facebook own services. Faced with a similar claim regarding YouTube’s
27 designation of videos for its “Restricted Mode,” the Ninth Circuit held that neither YouTube’s
28 statements about its content moderation policies nor its designation of certain videos for
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MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 26 of 33
1 “Restricted Mode” constituted promotional speech cognizable under the Lanham Act. See Prager
2 Univ. v. Google, LLC, 951 F.3d 991, 999-1000 (9th Cir. 2020).
3 And to the extent the Complaint alleges that the warning label and fact-checks are
4 promotional because they are part of the vaccination-misinformation campaign that Facebook
5 promotes through other means—such as the public statements of Mr. Zuckerberg—that, too, fails.
6 Speech is not itself promotional simply because it is a part of something that is promoted. For
7 example, in Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003), the Ninth Circuit held the
8 statement “tonight, for the first time on television …” beyond the Lanham Act’s reach because it
9 “was part of the show itself, and was not made in promotion or marketing of the [show].” Id. at
10 1181. Accordingly, CHD has failed to state a claim cognizable under the Lanham Act.
11 V. CHD HAS NOT STATED A CIVIL RICO CLAIM (COUNT 3)
12 The civil RICO statute “was enacted with a goal of eradicating organized, long-term
13 criminal activity.” Royce International Broadcasting Corp. v. Field, 2000 WL 236434, at *4 (N.D.
14 Cal. Feb. 23, 2000) (quoting Midwest Grinding Co. v. Spitz, 976 F.2d 1016, 1025 (7th Cir. 1999))
15 (alternation in original). This Court has therefore recognized that plaintiffs “try[] to fit a square
16 peg in a round hole by squeezing garden-variety business disputes into civil RICO actions.” Id.
17 (quoting Midwest Grinding, 976 F.2d at 1025). And courts should be particularly wary of
18 stretching civil RICO’s “somewhat elastic” predicate acts to encompass “fully protected First
19 Amendment activity.” National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 264 (1994)
20 (Souter, J., concurring). That is precisely what CHD has attempted to do here, by transforming
21 what is, at bottom, a complaint about Facebook’s enforcement of its terms of service and
22 Facebook’s own protected First Amendment activity into a civil RICO claim subject to treble
23 damages. Civil RICO cannot be stretched so far.
24 A. CHD Lacks Statutory Standing To Bring A Civil RICO Claim
25 To have statutory standing to bring a civil RICO claim, CHD must have been “injured in
26 its business or property by reason of” its claimed RICO violations. 18 U.S.C. § 1964(c). This
27 requirement “is not easily met,” Sheperd v. American Honda Motor Co., 822 F. Supp. 625, 629
28 (N.D. Cal. 1993); it requires “some direct relation between the injury asserted and the injurious
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Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 27 of 33
1 conduct alleged.” Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 981 (9th Cir. 2008) (quoting
2 Holmes v. Securities Investor Prot. Corp., 503 U.S. 258, 268 (1992)) (emphasis added).
3 CHD claims that the allegedly false statements dissuaded members of the public from reviewing
4 posts on CHD’s Facebook Page, which in turn decreased traffic to CHD’s website, which in turn
5 caused CHD to lose donations and membership fees. See, e.g., Compl. ¶¶ 226, 234. 8 These types
6 of indirect harms do not confer statutory standing, because they “could have resulted from factors
7 other than [Defendants’] alleged acts of fraud,” Anza v. Ideal Steel Supply Corp., 547 U.S. 451,
8 459 (2006), including, for example: “the state of the economy,” CHD’s “quality of service,” or
9 “customer satisfaction and referrals,” Ozeran v. Jacobs, 2018 WL 1989525, at *9 (C.D. Cal. Apr.
10 25, 2018), aff’d, 798 F. App’x 120 (9th Cir. 2020). Because “[b]usinesses lose and gain customers
11 for many reasons … it would require a complex assessment to establish what portion” of CHD’s
12 lost donations and membership fees were the direct result of alleged fraud and which portion were
13 due to other forces. Anza, 547 U.S. at 459. This Court should follow the many other courts that
14 have held unspecified lost business cannot support a civil RICO claim. See, e.g., Holmes, 503 U.S.
15 at 272-273; Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1148 (9th Cir. 2008).
16 B. CHD Has Not Pleaded Any Predicate Acts Of Wire Fraud
17 To plead a civil RICO claim, a plaintiff must identify “racketeering activity (known as
18 predicate acts).” Eller v. Equitrust Life Insurance Co., 778 F.3d 1089, 1092 (9th Cir. 2015). CHD
19 has not adequately pleaded its purported predicate acts of wire fraud.
20 1. Defendants did not obtain “money or property” from CHD
21 Pleading wire fraud requires a showing that the defendant “obtain[ed] money or property
22 from the one who is deceived.” United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989); see also
23 Monterey Plaza Hotel L.P. v. Local 483, 215 F.3d 923, 926-927 (9th Cir. 2000). CHD alleges only
24 that Defendants’ actions reduced visits to CHD’s website, reduced donations to CHD, and
25 diminished CHD’s “trade reputation and goodwill.” Compl. ¶ 128. Putting aside whether any of
26
27
8
CHD also claims that removing its “donate” button caused it to lose donations, but does not
28 claim that Facebook committed wire fraud in doing so.
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MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 28 of 33
1 those count as “money or property,” CHD cannot, as a logical matter, allege that Defendants took
2 for themselves visits to CHD’s website or CHD’s reputation, or that its establishment of a fact-
3 checking apparatus directed to vaccine misinformation evidenced any such intend. Nor has CHD
4 alleged that Defendants intended to route donations intended for CHD to themselves. That alone
5 defeats their civil RICO claims. See Monterey Plaza Hotel, 215 F.3d at 926-927. Moreover, the
6 only people who Defendants allegedly defrauded are individual Facebook users and CHD’s
7 advertising agency. But no Defendant is alleged to have taken any money from those people—a
8 fact which independently defeats CHD’s attempts to plead wire fraud. See Sugarman v. Muddy
9 Waters Capital LLC, 2020 WL 633596, at *3 (N.D. Cal. Feb. 3, 2020).
10 2. None of the purported acts of “wire fraud” were fraudulent
11 Wire fraud must be pleaded with specificity, see Edwards v. Marin Park, Inc., 356 F.3d
12 1058, 1065-1066 (9th Cir. 2004), requiring CHD to “state the time, place, and specific content of
13 the false representations as well as the identities of the parties to the misrepresentation,” Schreiber
14 Distributing Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986), and to “set forth
15 an explanation as to why the statement or omission complained of was false or misleading,”
16 Decker v. GlenFed, Inc., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc). None of the allegedly false
17 statements CHD has identified suffice.
18 “Warning label” on CHD’s Facebook page: First, CHD claims that the banner placed on its
19 Facebook page constituted wire fraud. Compl. ¶¶ 55-59. That banner says only that “This Page
20 posts about vaccines. When it comes to health, everyone wants reliable, up-to-date information.
21 The Centers for Disease Control (CDC) has information that can help answer questions you may
22 have about vaccines. Go to CDC.gov.” Id. ¶ 44. CHD does not dispute that it posts about vaccines,
23 that people want reliable vaccine information, and that the CDC provides vaccine-related
24 information. CHD alleges only that the statement is a “classic imputation of dishonesty,” id.
25 ¶ 53(C), because its “gist” is to convey that CHD’s Page contains unreliable information, id.
26 ¶ 210. Even if that “gist” were clear from the text of the statement, CHD fails to explain why it is
27 false beyond the ipse dixit that its content is reliable. Id. CHD’s judgment on what is reliable does
28 not discharge its burden of identifying why the statement is false. See Decker, 42 F.3d at 1548.
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MEM. ISO MOT.
Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 29 of 33
1 Statements About Specific CHD Posts: CHD also complains that Defendants committed
2 wire fraud by identifying certain articles shared by CHD as “False,” “Partly False,” or “False
3 Headline.” Compl. ¶¶ 60-99. Here, too, CHD has not shown that Defendants’ statements were
4 objectively false or misleading; at most, it has pleaded facts showing that some people disagree
5 about whether specific CHD posts were “false.” At bottom, CHD’s complaint is that Defendants
6 “deliberate[ly] conflate[d] open scientific controversy with ‘vaccine hoax.’” Id. ¶ 87. But whether
7 there is “open scientific controversy” concerning vaccines is itself a matter of opinion. The fact
8 that CHD disagrees with Defendants’ assessment of the clear weight of scientific authority does
9 not give CHD a claim for fraud. See, e.g., Miller v. Yokohama Tire Corp., 358 F.3d 616, 621 (9th
10 Cir. 2004) (opinion not actionable as fraud); see also Restatement (Second) of Torts § 538A.
11 In any case, for the posts that it claims Defendants falsely labeled, CHD has not pleaded
12 with particularity that any statement at issue is false. For example, CHD complains that fact-
13 checkers labeled a 45-minute video in which Robert F. Kennedy, Jr. talks about vaccines “Partly
14 False,” but never claims that the video was completely accurate; all it says is that “RFK Jr.
15 accurately detailed Dr. Anthony Fauci’s past involvement with vaccine manufacturers.” Compl.
16 ¶ 67. That conclusory statement falls short of the specificity Rule 9(b) requires. Elsewhere, CHD
17 contends that Science Feedback was wrong to state in an article that “vaccines bear no association
18 with sudden child infant death” because that statement “contradicts, inter alia, the potential
19 adverse effect advisements formerly on many vaccine product inserts.” Id. ¶ 99. But CHD does
20 not explain what, specifically, was contained on vaccine product inserts, what vaccines those
21 advisements applied to, or why those advisements contradict Science Feedback’s conclusion that
22 the scientific evidence does not support an association between vaccines and sudden infant death
23 syndrome. That, too, does not satisfy Rule 9(b).
24 Statements concerning removal of CHD’s advertising and fundraising functions: CHD also
25 complains that Facebook defrauded it by telling CHD that its “donate” button was deactivated
26 because CHD violated Facebook’s terms of service “by posting ‘false information’ with respect to
27 vaccines,” Compl. ¶¶ 53(A), 100, and by telling CHD’s advertising agency that CHD “had
28 repeatedly posted content that has been disputed by third-party fact-checkers [for] promoting false
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Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 30 of 33
1 content,” id. ¶ 101; see also id. ¶ 53(B). Even assuming these statements were pleaded with
2 particularity (they are not), they do not rise to the level of fraud. Fraudulent statements must have
3 a tendency to mislead, see Sosa v. DIRECTV, Inc., 437 F.3d 923, 941 (9th Cir. 2006), and CHD
4 has not suggested that anything Facebook told CHD misled it. Presumably CHD itself knew
5 whether it had violated Facebook’s terms of service, and there is no allegation that Facebook
6 disabled the donate button for some other, undisclosed, reason. As for the statements to CHD’s
7 advertising agency, CHD has not established they were false or misleading—nor can it. The
8 complaint itself alleges that, by April 2020 when the agency purportedly received this message
9 from Facebook, CHD had been informed multiple times that Facebook’s third-party fact-checkers
10 disputed its posts. See Compl. ¶¶ 60-89.
11 Description of PolitiFact and Science Feedback as “Independent”: CHD suggests that
12 Facebook was wrong to call its fact-checkers “independent.” But again, CHD nowhere explains
13 why that label was inaccurate, beyond alleging that the fact-checkers were paid for providing fact-
14 checking services and that they filled out a Facebook-created form that allowed them to categorize
15 articles as one of “False,” “False Headline,” “Partly False,” or several other options. See Compl.
16 ¶ 122, 123. Moreover, whether someone is “independent” (without reference to any standard of
17 independence) is not an objective statement of fact capable of being proven false; it is a matter on
18 which reasonable minds, and their interpretation thereof, may differ. In any case, all of the facts
19 CHD claims made Facebook’s description of the fact-checkers false were publicly disclosed,
20 including on pages incorporated by reference into the Complaint. See supra pp. 3-5. CHD can
21 hardly claim that Facebook misled anyone as to its relationship with its third-party fact-checkers.
22 Failure to disclose that CHD’s posts were not available to all Facebook users. Finally, CHD
23 complains that Facebook never told it that some of its posts were not being displayed to every
24 Facebook user (through processes it refers to as “shadowbanning” or “sandboxing”). Compl.
25 ¶¶ 103-118. Judicially noticeable documents demonstrate that Facebook publicly announced that
26 “Once a fact-checker rates a piece of content as False, Altered, or Partly False, it will appear
27 lower in News Feed, be filtered out of Explore on Instagram, and be featured less prominently in
28 Feed and Stories. This significantly reduces the number of people who see it.” Jennings Decl. Ex.
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Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 31 of 33
1 1 at 2. That same page likewise informs Facebook users that “Pages and websites that repeatedly
2 share misinformation rated False or Altered will have some restrictions, including having their
3 distribution reduced.” Id. And even if Facebook had not disclosed the impact having content rated
4 “false,” such an omission simply cannot support a wire fraud claim absent a duty to disclose
5 arising out of either (1) a fiduciary relationship or similar relationship of trust, or (2) an explicit
6 statutory duty. Eller v. EquiTrust Life Insurance Co., 778 F.3d 1089, 1092 (9th Cir. 2015). CHD
7 has not alleged facts supporting either requirement.
8 VI. CHD FAILS TO STATE ANY CLAIM AGAINST MARK ZUCKERBERG
9 All else aside, the Complaint fails to state any claim against Mark Zuckerberg because it
10 does not plausibly allege his personal involvement in any of the conduct at issue. Personal liability
11 under each Count requires direct involvement in the allegedly unlawful conduct: under Bivens, “a
12 plaintiff must plead that each Government-official defendant, through the official’s own individual
13 actions, has violated the Constitution,” Iqbal, 556 U.S. at 676; the Lanham Act imposes individual
14 liability on corporate officers only for conduct they “authorize[] or direct[] or in which [they]
15 participate[],” POM Wonderful LLC v. Purely Juice, Inc., 362 F. App’x 577, 581 (9th Cir. 2009);
16 and individual liability under civil RICO requires that a defendant “participate[d] in the operation
17 or management of the enterprise itself,” Reves v. Ernst & Young, 507 U.S. 170, 185 (1993).
18 Moreover, as the Lanham Act and civil RICO claims sound in fraud, they must satisfy the
19 heightened pleadings standards of Rule 9(b). See Schreiber Distrib. Co., 806 F.2d at 1400-1401
20 (civil RICO claims predicated on wire fraud must satisfy Rule 9(b)); TransFresh Corp. v.
21 Ganzerla & Assoc., Inc., 862 F. Supp. 2d 1009, 1014, 1017-1018 (N.D. Cal. 2012) (allegations of
22 false statements that violate Lanham Act must satisfy Rule 9(b)). And in addition to the time,
23 place, and content of the alleged false statements, Rule 9(b) requires that plaintiffs “identify the
24 role of each defendant in the alleged fraudulent scheme.” Openwave Sys. Inc. v. Fuld, 2009 WL
25 1622164, at *5 (N.D. Cal. June 6, 2009).
26 The Complaint does not allege that Mr. Zuckerberg was personally involved in any of the
27 allegedly unlawful conduct. See supra pp. 8-9. Accordingly, he cannot be personally liable under
28 either Bivens, see supra pp. 8-9, or the Lanham Act, see Openwave Sys., Inc., 2009 WL 1622164,
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Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 32 of 33
1 at *5. And to the extent the Complaint alleges that Mr. Zuckerberg has some involvement in
2 Facebook’s “content management” decisions, that does not demonstrate that he operated or
3 managed the alleged RICO enterprise. The Complaint alleges only that Mr. Zuckerberg was
4 personally involved in decisions whether to remove two instances of political speech wholly
5 unrelated to CHD, see Compl. ¶ 155. Because there is no allegation that those decisions were
6 unlawful, they cannot support RICO liability; personal involvement in decisions “separate and
7 apart from any alleged racketeering acts” cannot establish individual RICO liability. Ferrari v.
8 Mercedes-Benz USA, LLC, 2016 WL 7188030, at *3 (N.D. Cal. Dec. 12, 2016).
9 VII. CHD IS NOT ENTITLED TO DECLARATORY RELIEF
10 “[T]he Declaratory Judgment Act creates a remedy for litigants but is not an independent
11 cause of action.” County of Santa Clara v. Trump, 267 F. Supp. 3d 1201, 1215-1216 (N.D. Cal.
12 2017). As CHD has failed to state any claim, it is not entitled to declaratory relief. Count IV must
13 be dismissed alongside CHD’s other claims.
14 CONCLUSION
15 The Complaint’s numerous legal defects—including the absence of a federal actor as
16 required for liability under Bivens, the lack of either an interest or statement cognizable under the
17 Lanham Act, the absence of any false statement sufficient for RICO liability, and the Complaint’s
18 intrusion upon rights guaranteed to Facebook under the First Amendment and Section 230 of the
19 Communications Decency Act—cannot be cured by amendment. The Complaint should be
20 dismissed with prejudice.
21
22 Dated: October 23, 2020 WILMER CUTLER PICKERING, HALE AND
DORR LLP
23
By: /s/ Sonal N. Mehta
24 SONAL N. MEHTA
25 Attorney for Defendants
Facebook, Inc. and Mark Zuckerberg
26
27
28
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Case 3:20-cv-05787-SI Document 56 Filed 10/23/20 Page 33 of 33
1 CERTIFICATE OF SERVICE
2 I hereby certify that on October 23, 2020, I electronically filed the above document with the
3 Clerk of the Court using CM/ECF which will send electronic notification of such filing to all
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6 Dated: October 23, 2020 By: /s/ Sonal N. Mehta
Sonal N. Mehta
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CASE NO.: 3:20-CV-05787-SI NOTICE OF MOTION & MOTION TO DISMISS;
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