Rutherford Institute Motion for Leave to File Amicus Brief — Children's Health Defense v. Facebook (Dkt. 89)

Date: 2021-05-05

Summary

A Motion for Leave to File Brief Amicus Curiae and [Proposed] Brief of The Rutherford Institute in Support of Plaintiff, filed April 27, 2021 as Document 89 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, before Hon. Susan Illston. The motion asks leave to file an amicus brief supporting the plaintiff's opposition to the motion to dismiss by Facebook and Mark Zuckerberg, and states that the plaintiff consented but the defendants did not. The proposed brief argues that the Second Amended Complaint pleads sufficient facts of government action to state First Amendment claims. It distinguishes Prager University v. Google LLC and Divino Group, LLC v. Google, LLC, and relies on Packingham v. North Carolina. The 25-page filing ends with a proof of service.

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Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 1 of 25

12 CHILDREN’S HEALTH DEFENSE,
Case No.: 3:20-cv-05787-SI
13 Plaintiff, MOTION FOR LEAVE TO FILE
14 vs. BRIEF AMICUS CURIAE and
[PROPOSED] BRIEF OF THE
15 FACEBOOK, INC., ET. AL. RUTHERFORD INSTITUTE IN
Defendants. SUPPORT OF PLAINTIFF
16
Courtroom:1
17 JUDGE: Hon. Susan Illston
18 [Re Defendants’ Motion to Dismiss
calendared for 5/5/2021]
19
20
The Rutherford Institute hereby requests permission to file the attached
21
22 amicus curiae brief in support of Plaintiff’s Opposition to Defendant’s Facebook and
23
Mark Zuckerberg’s Motion to Dismiss the Second Amended Complaint (Doc. 71).
24
The Rutherford Institute is an international nonprofit organization headquartered in
25
26 Charlottesville, Virginia. Founded in 1982 by its President, John W. Whitehead, the
27
Institute specializes in providing legal representation without charge to individuals,
28

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1 regardless of political affiliation, whose civil liberties are threatened or infringed and
2
in educating the public about constitutional and human rights issues. The Rutherford
3
4 Institute is interested in the resolution of this case because it touches upon core
5 questions of individual liberty, which both the federal elements of our constitutional
6
structure and the first eight Amendments in the Bill of Rights were created to protect
7
8 and preserve.
9 The Rutherford Institute has reviewed the Second Amended Complaint,
10
Motion for Dismiss, Opposition to Motion to Dismiss and Reply to Defendant’s
11
12 Opposition to Motion to Dismiss, and believes it can aid the Court in resolving the
13 key issue pled in Defendant CHD’s Second Amended Complaint: Whether the
14
Plaintiff has stated claims that the actions of the government and the actions of the
15
16 Defendants were interchangeably linked and thereby deprived Plaintiff CDH of its
17 First Amendment rights to freedom of speech by censoring, demonetizing and
18
ultimately de-platforming CDH for its published postings on Facebook concerning
19
20 medical evidence of the dangers of vaccinations, specifically in children. The
21 published content was deleted and barred by Defendants for no other reason than that
22
they are contrary to the current view espoused by United States government agencies,
23
24 members of Congress and Congressional committees, which, in order to obtain the
25 complete acquiescence of Defendants, directed and coerced Defendants to delete all
26
such content.
27
28

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1 The Rutherford Institute believes that the clear entanglement and joint
2
enterprise that has arisen between certain United States government agencies and
3
4 actors and the named Defendants is sufficiently pleaded in Plaintiff’s Second
5 Amended Complaint, and further buttressed in its Opposition to Defendants’ Motion
6
to Dismiss; and that to continue to allow Defendants to do the state’s bidding without
7
8 repercussions or liability, is to allow private actors, acting as proxy for the
9 government, to do that which the government acting alone is not permitted to do—
10
engage in viewpoint discrimination by censoring and suppressing “unpopular” or
11
12 “controversial” speech in violation of the First Amendment to the United State
13 Constitution in the digital marketplace.
14
The proposed amicus curiae brief seeks to elaborate on this concern, serving as
15
16 a supplement to the parties’ briefing, with the aim of aiding the Court in rendering its
17 decision on Defendants’ motion to dismiss. Accordingly, The Rutherford Institute
18
respectfully requests the Court’s leave to file the attached amicus curiae brief. The
19
20 Rutherford Institute has obtained consent to file the attached brief from Plaintiff
21 CHD, although not from Defendants.
22
Dated: April 27, 2021 THE RUTHERFORD INSTITUTE
23
24 BY:/s/ Julie A. Esposito
JULIE A. ESPOSITO
25 Attorneys for Amicus Curiae
26 and Affiliate of The Rutherford Institute
27
28

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1 JULIE A. ESPOSITO, SBN 177722
2
500 North Brand Boulevard, Suite 2200
Glendale, California 91203
3 TELEPHONE (818)546-8686
4
FACSIMILE (818)546-8787
jesposito@colmanlawgroup.com
5
6 Attorneys for Amicus Curiae
THE RUTHERFORD INSTITUTE
7
8
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11
SAN FRANCISCO DIVISION
12
13 CHILDREN’S HEALTH DEFENSE, Case No.: 3:20-cv-05787-SI
A Georgia non-profit organization
14
Plaintiff, AMICUS CURIAE BRIEF OF THE
15 vs. RUTHERFORD INSTITUTE IN
SUPPORT OF PLAINTIFF’S
16 FACEBOOK, INC., a Delaware
Corporation, ET. AL. OPPOSITION TO DEFENDANTS’
17 MOTION TO DISMISS
Defendants.
18
19
20
21
22
23
24
25
26
27
28

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Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 5 of 25

1 TABLE OF CONTENTS
2
Page(s)

3 AMICUS CURIAE BRIEF OF THE RUTHERFORD INSTITUTE IN
4
SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS………………………………………………….. 9
5
6 IDENTITY AND INTEREST OF AMICUS CURIAE……..………….. 9

7
SUMMARY OF ARGUMENT…………………………………………... 9
8
9 I. ARGUMENT……………………………………………………. 12
10
THE ACTION SHOULD PROCEED AS SUFFICIENT FACTS
11 HAVE BEEN PLED IN THE SAC THAT DEFENDANTS
12 VIOLATED PLAINTIFF’S FIRST AMENDMENT RIGHTS IN
12
THEIR ROLE AS GOVERNMENT ACTORS…………………………
13
14 A. Whether State Action Exists is a Fact-Bound Inquiry And
Plaintiff Has Met the Threshold Pleading Requirements
15
Precluding a Dismissal of the Complaint under Rule 12 (b) (6)… 12
16
B. Plaintiff’s SAC Alleges Sufficient Facts to State a Claim of
17
Government Action by Defendants Making This Case
18 Distinguishable from Prager and Divino ………………………… 15
19
C. Plaintiff Must Be Able to Go Forward With This Lawsuit To
20 Avoid Grave Injustice and Lack of a Remedy Where The
Government Directly Acts Through Private Companies To
21
Violate Plaintiff’s Constitutionally Protected Rights……………. 18
22
II. CONCLUSION…………………………………………………….. 23
23
24
25
26
27
28

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1
2
TABLE OF AUTHORITIES
3 CASES Page

4 Ashcroft v. Iqbal, (2009)
5 556 U.S. 662; 678 783 F.3d 753……..…………..…………………………... 14,
18
6 Biden v. Knight First Amendment Institute, No. 20-197
7 (U.S. Sup. Ct Apr. 4, 2021)………………………………………………….. 10
8 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics(1971)
9 403 U.S. 388 (1971)…………………………………………………………. 13,
17,
10 18
11 Blum v. Yaretsky, (1982)
457 U.S. 991…………………………………………………………………. 17
12
13 Brentwood Acad, v. Tenn. Secondary Ach, Athletic Ass’n, (2001)
531 U.S. 288, 296 298……………………………………………………….. 12,
14 13,
15 15,
18
16
Brunette v. Humane Soc’y of Ventura Cty.,(2002)
17 294 F.3d 1205, 1214 (9th Cir. 2002)………………………………………… 15,
16
18
Divino Group, LLC v. Google, LLC et.al.,(2021)
19 2021 WL 5175 (N.D. Cal. Jan. 6, 2021)……………………………………... 11,
16,
20
17
21 Dobyns v. E-SAystems, Inc. (1982)
667 F. 2d 1219, 1226-1227 (5th Cir. 1982)………………………………….. 16
22
23 Johnson v. Knowles, (1997)
113 F.3d 1114, 1115 (9th Cir. 1997)…………………………………………. 12
24
25 Lugar v. Edmondson Oil Co., (1982)
457 U.S. 922, 939 …………………………………………………………… 13,
26
14
27 Marsh v. Alabama, (1946)
326 U.S 501………………………………………………………………….. 15
28

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1 Packingham v. North Carolina, (2017)
2
137 S.Ct. 1730……………………………………………………………….. 9,
10,
3 19
4
Prager University v. Google LLC, (2020)
951 F. 3d 991(9th Cir. 2020)…………………………………………………. 11,
5 15,
6 16
Prager University v. Google LLC fka Google, Inc; You Tube LLC, (2020)
7 951 F.3d 991 (9th Cir. 2020) (“Prager II”.)………………………………….. 16,
8 17
Rendell-Baker v. Kohn, (1982)
9 457 U.S. 830, 842……………………………………………………………. 16
10
Tsao v. Desert Palace, Inc., (2012)
11 698 F. 3d 1128, 1140 (9th Cir. 2012)………………………………………… 15
12
STATUTES
13
14 Federal Rules of Civil Procedure 12 (b) (6)………………...………………... 12,
14,
15 16,
16 22,
23
17
18 Communications Decency Act, section 230..................................................... 13,
17
19
20 U.S Internal Revenue Code, section 501(c)(3)(c)….......................................... 15

21 42 U.S.C. § 1983……………………………………………………………… 17
22
OTHER AUTHORITIES
23
24 Article 19 of the Universal Declaration of Human Rights………………….. 22
25 Hatmaker, Taylor, “White House asks tech leaders for help with coronavirus
26 response,” TechCrunch.com (March 11, 2020)
https://techcrunch.com/2020/03/11/white-house-cto-kratsios-tech-facebook-
27 google-meeting/................................................................................................ 19
28

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1 Johnstone, Caitlin, “Why You Should Oppose the Censorship of David Icke
2
(Hint: It Has Nothing to Do WithIcke),” Medium.com (May 2, 2020),
https://medium.com/@caityjohnstone/why-you-should-oppose-the-
3 censorshipofIcke……….….................................................................................. 22
4
Kean,Sean, Sherr, Ian, “White House asks tech companies for help battling
5 coronavirus,” C/NET (March 12, 2020), https://www.cnet.com/news/white-
6 house-asks-tech-companies-for-help-battling-coronavirus/.............................. 20

7 Romm, Tony, “White House asks Silicon Valley for help to combat
coronavirus, track its spread and stop misinformation,” The Washington Post
8
(March 11, 2020)
9 https://www.washingtonpost.com/technology/2020/03/11/white-house-tech-
meeting-coronavirus.......................................................................................... 19
10
11 Shu, Catherine and Shieber, Jonathan, “Facebook, Reddit, Google, LinkedIn,
Microsoft, Twitter and YouTube issue joint statement on misinformation,”
12 TechCrunch.com (March 16, 2020),
13 https://techcrunch.com/2020/03/16/facebook-reddit-google-linkedin-microsoft-
twitter-and-youtube-issue-joint-statement-on-misinformation............................... 20
14
15 VanLandingham, Rachel Incitement at 100--And 50--And Today: Words We
Fear: Burning Tweets & the Politics of Incitement, 85 Brook. L. Rev. 37
16 (2019)……………………………………………………………………………. 21
17
18
19
20
21
22
23
24
25
26
27
28

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1
IDENTITY AND INTEREST OF AMICUS CURIAE
2
3 The Rutherford Institute is an international nonprofit organization
4
headquartered in Charlottesville, Virginia. Founded in 1982 by its President, John W.
5
6 Whitehead, the Institute specializes in providing legal representation without charge
7 to individuals whose civil liberties are threatened or infringed and in educating the
8
public about constitutional and human rights issues. The Rutherford Institute is
9
10 interested in the resolution of this case because it touches upon core questions of
11 individual liberty, and in particular the right to freedom of expression, which is the
12
bedrock for preservation of individual liberty, which both the federal elements of our
13
14 constitutional structure and the Bill of Rights were created to protect and preserve.
15 The Rutherford Institute writes in support of Plaintiff Children’s Health Defense
16
(“CHD”), which seeks to proceed with its Second Amended Complaint against
17
18 Defendants Facebook, Inc. and Mark Zuckerberg, an individual. The purpose of this
19 Brief is to address CHD’s first cause of action for First and Fifth Amendment
20
(Bivens) actions against the named Defendants.
21
22 SUMMARY OF ARGUMENT
23
24 In Packingham v. North Carolina, 137 S.Ct. 1730 (2017), the United States

25 Supreme Court unequivocally recognized the importance of an individual’s right to
26
participate in social media by striking down a state’s prohibition on a convicted felon
27
28 having access to the internet. In an 8-0 ruling, the Court held that the prevalence of

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1 social media in the current time render it near impossible to have “a voice,” in any
2
meaningful way without access to such technology. The court held that the state did
3
4 not have a compelling interest in silencing Mr. Packingham’s voice on social media
5 even though he was a convicted felon.
6
Packingham, supra, demonstrated the high court’s recognition of the
7
8 prevalence and importance of the internet generally, and social media platforms in
9 particular; and that depriving an individual of access to these platforms effectively
10
quells their right to express themselves. The court found that the state of North
11
12 Carolina did not have a compelling state interest to infringe on Packingham’s
13 fundamental first amendment rights. 1
14
Of course, Packingham showed a clear case of state action—a state law.
15
16 However, a less obvious, but no less genuine form of state action is pleaded in
2

17 CHD’s Second Amended Complaint (also referred to as “SAC”). CHD has pleaded
18
numerous concrete instances where Defendants have censored, censured, de-
19
20 monetized and de-platformed CHD’s postings thereon at the direct behest of
21 government actors, who have made it clear that their orders are aimed at the content
22
of CHD’s postings. CHD has pled the names of the individual state actors, branches
23
24
25 1
Recently, Justice Clarence Thomas remarked publicly that, given the importance of social
media and the sway it holds (without any real competition), it will likely be regulated akin to public
26 utility regulation in the future. Biden v. Knight First Amendment Institute, No. 20-197 (U.S. Sup. Ct
Apr. 4, 2021) (Thomas, J., concurring).
27
2
The term “state action” as used herein includes the concept of “government action” that
28 applies to actions by the government of the United States.

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1 of government and administrations, what they have told Defendants to do, when they
2
have told Defendants to do it, and how Defendants unequivocally acquiesced to the
3
4 direct orders of the government actors and admitted to doing so.
5 CHD has far surpassed the hurdle of state action in its pleadings that were not
6
overcome in Prager University v. Google LLC, 951 F. 3d 991(9th Cir. 2020), or
7
8 Divino Group, LLC v. Google, LLC et.al., 2021 WL 5175 (N.D. Cal. Jan. 6, 2021),
9 set forth below. Both Prager and Divino Group were filed in the within Court. As set
10
forth more fully below, both cases are highly distinguishable from the case at bar, as
11
12 neither were able to plead a nexus between any government action and the private
13 company defendant. The courts in both of these cases mentioned that what was
14
lacking was a direct connection to government action that caused the harm. Yet, in
15
16 both of these cases, the parties were given leave to amend.
17 The case at bar has pled a significant and unequivocal number of state actions
18
performed by Defendants that directly led to the censorship of Plaintiff CHD on
19
20 social media based upon content the government found objectionable.
21
Without being able to proceed in this lawsuit, Plaintiff CDF and others
22
23 similarly situated would be left without any remedy for violation of their
24
constitutional rights inflicted by government officials using big tech as their
25
deputized proxy.
26
27
28

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1 Indeed, if the Court does not find the pleading of government action sufficient
2
here, it is difficult to imagine what level of detail would be sufficient to overcome the
3
4 granting of a Rule (12) (b) (6) motion based upon a failure to plead state action.
5 I.
6
ARGUMENT
7
8 THE ACTION SHOULD PROCEED AS SUFFICIENT FACTS HAVE BEEN
PLED IN THE SAC THAT DEFENDANTS VIOLATED PLAINTIFF’S FIRST
9 AMENDMENT RIGHTS IN THEIR ROLE AS GOVERNMENT ACTORS
10
A. Whether State Action Exists is a Fact-Bound Inquiry And Plaintiff Has
11
Met the Threshold Pleading Requirements Precluding a Dismissal of the
12
Complaint under Rule 12 (b) (6)
13
14
The Court set forth a three-part test which amounts to a totality of the
15
16 circumstances test for the existence of state action in Brentwood Acad, v. Tenn.
17 Secondary Ach, Athletic Ass’n, 531 U.S. 288, 296 298 (2001). That test considers the
18
following factors: (1) whether the private party’s conduct results from the state’s
19
20 exercise of coercive power; (2) whether the state provides significant overt or covert
21 encouragement in an activity; and (3) whether the private party operates as a willful
22
participant in the government activity. Brentwood Acad., 531 U.S. at 296. See also
23
24 Johnson v. Knowles, 113 F.3d 1114, 1115 (9 Cir. 1997) (willful participation by
th

25 private party in joint activity with government actors is all that is required to find state
26
action)
27
28

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1 Plaintiff’s SAC has alleged facts evidencing that Defendants herein were de
2
facto state actors under all three of these tests. For example, the SAC cites a letter
3
4 Congressman Adam Schiff sent to Defendants, threatening their immunity from suit
5 under CDA section 230 if Defendants failed to censor content on their sites which
6
Schiff and other congress members found objectionable. (SAC paras. 60-69.)
7
8 Plaintiff has further alleged that Defendants were pressured by the United States
9 Congress to suppress “vaccine information,” which was defined as content that “casts
10
doubt on the efficacy of vaccines;” and that Defendants acted in partnership with
11
12 government actors including the CDC, a federal agency, and the CDC’s proxy, the
13 WHO, while Defendants promoted the CDC as the ultimate authority in the subject.
14
(See, e.g., SAC paras. 1, 40-51; 56-64; 70, 98-104; 308,312, 364-368).
15
16 Plaintiff has also pleaded that Defendant Zuckerberg individually repeatedly

17 stated he was working directly with the government on these issues (SAC pars 49-45;
18
69-70; 308.)
19
20 These are but a few examples cited in the SAC that show that the Court must
21 rule that Plaintiffs have met (if not surpassed) the pleading threshold for pleading that
22
Defendants herein were deputized federal state actors who violated Plaintiff’s First
23
24 amendment rights under Bivens.
25 Indeed, the Supreme Court’s Brentwood Acad. decision makes plain that
26
whether a nominally private entity acts constitute state/government action is a
27
28 “necessarily fact-bound inquiry,” id., 531 U.S. at 298 (quoting Lugar v. Edmondson

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1 Oil Co., 457 U.S. 922, 939 (1982)), the kind that is not suitable or appropriate for
2
resolution on a motion to dismiss under Fed. R. Civ. P. 12(b)(6). “What is fairly
3
4 attributable [to the government] is a matter of normative judgment, and criteria lack
5 rigid simplicity. . . . Our cases have identified a host of facts that can bear on the
6
fairness of such an attribution.” Because there are a range of circumstances that can
7
8 point to the government being behind a nominally private decision, courts should be
9 loath to grant a motion to dismiss for failure to allege state action, particularly when
10
the facts are construed in a light most favorable to the plaintiff and the claim need
11
12 only be “plausible” on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As
13 discussed herein, the SAC sets forth compelling facts and circumstances showing that
14
Defendants were operating as de facto government agents.
15
16 Moreover, dismissal of the SAC before any factual development of the

17 circumstances surrounding the censorship and de-platforming of CHD would be an
18
abdication of the responsibility to ensure that fundamental rights of free speech are
19
20 not violated by sub rosa governmental action. As the Supreme Court has declared:
21 The judicial obligation is not only to preserve an area of individual
22 freedom by limiting the reach of federal law and avoid the imposition of
responsibility on a State for conduct it could not control, but also to
23 assure that constitutional standards are invoked when it can be said that
24 the State is responsible for the specific conduct of which the plaintiff
complains. If the Fourteenth Amendment is not to be displaced,
25 therefore, its ambit cannot be a simple line between States and people
26 operating outside formally governmental organizations, and the deed of
an ostensibly private organization or individual is to be treated sometimes
27 as if a State had caused it to be performed.
28

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1 Brentwood Acad., 531 U.S. at 295 (internal quotations omitted).
2
B. Plaintiff’s SAC Alleges Sufficient Facts to State a Claim of Government
3
4
Action by Defendants Making This Case Distinguishable from Prager and

5 Divino
6
7 In Prager University v. Google, LLC, supra, Plaintiff Prager University sued
8
Google for censoring its content on the latter’s platform, arguing that Defendants
9
10 should be considered state actors under the “public function” test (citing Tsao v.
11 Desert Palace, Inc., 698 F. 3d 1128, 1140 (9th Cir. 2012).
12
Like Plaintiff herein, Prager University is an educational 501(c)(3)(c)
13
14 corporation which filed a Complaint against defendants You Tube LLC (“You
15 Tube”) and Google LLC (“Google”) alleging inter alia, a cause of action for
16
violations of the First Amendment to the United States Constitution stemming from
17
18 Defendants’ censoring, restricting and filtering of the content of videos based upon
19 Plaintiff’s conservative viewpoint and political ideology. Plaintiff’s argument was
20
that, in holding itself out as fora encouraging speech activity and asserting viewpoint
21
22 neutrality, the Defendants were state actors under the “public function test.”
23 The Court outlined the limited occasions where the courts have allowed the
24
conversion of private action into public function, state action. The cases have been
25
26 limited to activities performed by the private actor that were traditionally the
27 exclusive prerogative of the State. Marsh v. Alabama, 326 U.S 501 (1946); Brunette
28

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1 v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 2002) (quoting
2
Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)). Examples of functions that have
3
4 qualified have been to private entities, holding public elections, governing a town and
5 serving as an international peace-keeping force. Brunette, supra at 1214; and Dobyns
6
v. E-SAystems, Inc. 667 F. 2d 1219, 1226-1227 (5th Cir. 1982).
7
8 The Prager Court found that Defendants YouTube and Google did not perform

9 functions that were traditionally the exclusive prerogative of the state, and therefore,
10
there was no state action under the First Amendment under the “public functions”
11
12 test. As Prager did not plead any other theory of state action under the First
13 Amendment, the Defendant’s Rule 12(b) (6) motion was granted, and Prager was
14
given leave to amend its Complaint to allege state action.
15
16 Prager appealed the district court’s decision, which was affirmed by the Ninth

17 Circuit. Prager University v. Google LLC fka Google, Inc; You Tube LLC, 951 F.3d
18
991 (9th Cir. 2020) (“Prager II”.)
19
20 Following on the heels of Prager was this Court’s ruling on a Rule 12(b)(6)

21 motion in Divino Group LLC v. Google LLC, 2021 WL 51715 (N.D. Cal. Jan. 6,
22
2021) (“Divino”), wherein Divino Group also filed a complaint alleging censorship
23
24 and restriction of its content based upon its LGBTQ political identities and
25 viewpoints. Plaintiff again claimed its First Amendment rights were violated under
26
the “public function” test, arguing that since defendants designated themselves a
27
28 public forum for free expression, defendants had thereby taken on the traditional and

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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
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Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 17 of 25

1 exclusive governmental function of regulating speech. The Court noted that this
2
theory of public function was already rejected in Prager II wherein the Ninth Circuit
3
4 held that the hosting of speech in a private platform is not a “traditional and exclusive
5 government function,” required for it to fall within the purview of the “public
6
function test.” Prager III, 951 F. 3d. at 997-998.
7
8 Divino Group’s second argument was that Defendant’s statutory protection

9 against immunity under section 230 of the Communications Decency Act (“CDA”)
10
amounts to government endorsement of Defendant’s alleged discrimination against
11
12 Plaintiff’s speech based upon content. The Court rejected this argument. First,
13 Plaintiff had brought its claim under 42 U.S.C. § 1983, which applies exclusively to
14
actions taken under color of state law, rather than federal law. A claim for a federal
15
16 violation of constitutional rights must be brought under Bivens v. Six Unknown
17 Named Agents of Fed. Bureau of Narcotics 403 U.S. 388 (1971). Plaintiffs in Divino
18
did not plead a Bivens claim.
19
20 The court also remarked that a private entity could be considered a state actor

21 when the government compels the private entity to take a particular action. Divino,
22
2021 WL 51715, *6 (citing Blum v. Yaretsky, 457 U.S. 991 (1982)). However, the
23
24 court found plaintiff did not plead any such compulsion, although plaintiffs were
25 given leave to amend.
26
In the instant case, Plaintiff CHD is not relying upon the doctrine of public
27
28 function as the legal basis for its First Amendment claims against Defendants herein.

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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 18 of 25

1 The gravamen, and indeed the literal pleading of the SAC is that the federal
2
government, through a plethora of government officials and actors, including but not
3
4 limited to, Congressman Adam Schiff, directed, instructed, encouraged and
5 compelled Facebook to censor the content of CDF, expressly because the government
6
did not want any viewpoints contrary to its own on the efficacy of vaccinations in
7
8 general and Covid-19 vaccinations in particular.
9 Plaintiff has in fact made and pled a Bivens claim in this action, and otherwise
10
met the pleading requirements for its First Cause of Action herein.
11
12 C. Plaintiff Must Be Able to Go Forward With This Lawsuit To Avoid Grave

13 Injustice and Lack of a Remedy Where The Government Directly Acts Through
14
Private Companies To Violate Plaintiff’s Constitutionally Protected Rights
15
16 The SAC makes numerous allegations supporting CHD’s contention that

17 federal actors and agencies encouraged, coerced and jointly participated in the
18
censorship of CHD’s expression on Facebook. It is axiomatic that these allegations
19
20 must be accepted as true for purposes of the motion to dismiss. Ashcroft v. Iqbal, 556
21 U.S. at 678. As the Supreme Court held in Brentwood Acad., 531 U.S. at 29, the
22
courts must remain available to those whose fundamental liberties are infringed by the
23
24 government acting in a clandestine matter through private entities. Indeed, it is
25 particularly crucial that CHD’s allegations of government direction of the suppression
26
of expression by the Defendants be fully and fairly heard in light of growing evidence
27
28

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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 19 of 25

1 that the federal government is coopting the social media found so important in
2
Packingham to squelch disfavored speech.
3
4 For example, in March 2020, the United States government held a meeting

5 with Facebook, Google (YouTube’s owner) and other tech giants for the purpose of
6
enlisting their assistance in suppressing information related to the COVID-19.
7
8 Numerous media outlets reported that on or about March 11, 2020, the White House
9 held a meeting with tech companies, including Facebook and Google, in which the
10
White House chief technology officer asked for the companies’ help in spreading
11
12 accurate information and preventing the spread of misinformation about the
13 coronavirus outbreak. 3 As reported by The Washington Post, White House chief
14
technology officer Michael Kratsios met with representatives of the tech companies
15
16 to enlist their help in augmenting the government’s efforts in the fight against the
17 coronavirus, hoping that Silicon Valley might foster the government’s efforts to track
18
the outbreak and disseminate accurate information:
19
20 “Cutting edge technology companies and major online platforms will
play a critical role in this all-hands-on-deck effort,” Michael Kratsios,
21 the White House’s chief technology officer, said in a statement.
22 “Today’s meeting outlined an initial path forward and we intend to
continue this important conversation.”4
23
24
25 3
See, e.g., Taylor Hatmaker, “White House asks tech leaders for help with coronavirus
response,” TechCrunch.com (March 11, 2020), https://techcrunch.com/2020/03/11/white-house-cto-
26 kratsios-tech-facebook-google-meeting/.
27 4
Tony Romm, “White House asks Silicon Valley for help to combat coronavirus, track its
spread and stop misinformation,” The Washington Post (March 11, 2020),
28 https://www.washingtonpost.com/technology/2020/03/11/white-house-tech-meeting-coronavirus/.

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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 20 of 25

1 A focus of the meeting was in getting such corporate entities as Facebook and Twitter
2
to stop the spread of any so-called coronavirus conspiracy theories on their
3
4 platforms.
5

5 Acting on this government mandate, on March 16, Facebook, Google and other
6
tech companies issued a joint statement pledging to “jointly combat[] fraud and
7
8 misinformation about the virus, elevating authoritative content on our platforms, and
9 sharing critical updates in coordination with government healthcare agencies around
10
the world.”6
11
12 Following this March 2020 meeting, aggressive censorship, including de-

13 platforming emerged as the policy of Defendants herein, working in conjunction with
14
government entities to block the online publication of ideas that do not comport with
15
16 government messaging regarding the COVID-19 pandemic and other health-related
17 issues. Such government directed actions have stymied CHD and other public interest
18
groups in their ability to speak on issues of public concern to the audience that
19
20 follows CHD and these issues. Censorship of the kind CHD has been subjected to is
21 increasing at a rate that poses a serious threat to the freedoms of all people, regardless
22
23
24
5
Sean Kean, Ian Sherr, “White House asks tech companies for help battling coronavirus,”
25 C/NET (March 12, 2020), https://www.cnet.com/news/white-house-asks-tech-companies-for-help-
battling-coronavirus/.
26
6
Catherine Shu, Jonathan Shieber, “Facebook, Reddit, Google, LinkedIn, Microsoft,
27 Twitter and YouTube issue joint statement on misinformation,” TechCrunch.com (March 16, 2020),
https://techcrunch.com/2020/03/16/facebook-reddit-google-linkedin-microsoft-twitter-and-youtube-
28 issue-joint-statement-on-misinformation/.

20
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 21 of 25

1 of their views. Moreover, it is wholly contrary to universal principles of freedom of
2
speech that are the foundation for representative democracy.
3
4 What is at stake is no less than freedom of speech itself because of the

5 coordinated actions of large technology corporations with control over access to
6
information colluding with government entities to stifle any forms of dissent that
7
8 challenge a chosen status quo.
9 The importance of this issue, which is raised by the subject SAC of the rise of
10
government actors using private tech companies to do their bidding cannot be
11
12 overstated. In her article, Incitement at 100--And 50--And Today: Words We Fear:
13 Burning Tweets & the Politics of Incitement, 85 Brook. L. Rev. 37 (2019), author
14
Rachel VanLandingham points out that Congress regularly summon social media
15
16 executives and representatives, whom they then instruct to crack down on
17 objectionable speech that they, Congress, cannot lawfully censor. As such, Ms. Van
18
Landingham has written:
19
20 This coercive mechanism can be cast as Congress laundering its
censorious will through the platforms’ Terms of Service which
21 Congress is effectively dictating to these private entities. Hate speech
22 and misinformation are, by and large, forms of speech which the
Supreme Court has designated as protected. Therefore, by using their
23 government position to advocate for censorship, members of Congress
24 are converting a private entity’s actions into state action, thereby
allowing banned users to seek recourse in the courts under the Supreme
25 Court’s guidance in Packingham.
26
As another journalist observed:
27
28

21
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 22 of 25

1 What matters is that we’re seeing a consistent and accelerating pattern
2
of powerful plutocratic institutions collaborating with the US-
centralized empire to control what ideas people around the world are
3 permitted to share with each other, and it’s a very unsafe trajectory. 7
4
As a civil liberties organization whose purpose is to ensure the preservation of
5
a robust First Amendment, especially as it pertains to free speech and a free press,
6
7 The Rutherford Institute is gravely concerned about the possibility that defendant
8
social media platforms herein censored, censured, labeled, demonetized and
9
deactivated the social media platforms for CHD; all at the bidding of the U.S.
10
11 government in order to silence views of which the government disapproved. The
12
censorship of online speech at government behest constitutes government action in
13
violation of the First Amendment’s guarantee of free speech and the Universal
14
15 Declaration of Human Rights. 8
16
Because the clearly pled facts in the subject Second Amended Complaint
17
18
clearly plead facts supporting its allegations that Defendants have acted as de facto

19 deputized actors. Amicus curaie herein submits that the totality of the circumstances
20
test that must be applied to determine state action forecloses the possibility that the
21
22 granting of a Rule 12 (b) (6) would be proper in the case at bar; and is further
23
24
7
Caitlin Johnstone, “Why You Should Oppose the Censorship of David Icke (Hint: It Has Nothing
25 to Do WithIcke),” Medium.com (May 2, 2020), https://medium.com/@caityjohnstone/why-you-
should-oppose-the-censorshipofIcke.
26
8
As Article 19 of the Universal Declaration of Human Rights affirms: “Everyone has the
27 right to freedom of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and regardless
28 of frontiers.” https://www.un.org/en/universal-declaration-human-rights/.

22
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 23 of 25

1 concerned that the granting of a motion to dismiss under 12 (b) (6) in the face of such
2
detailed pleading of state involvement and coercion would render it a near
3
4 impossibility to plead sufficient facts showing the government acting by proxy
5 through technology in the future.
6
II.
7
CONCLUSION
8
9
10 The Rutherford Institute respectfully submits that the pleadings in this matter as

11 governed by the applicable law require this Court to allow this case to go forward. As
12
such, the Court is strongly urged to deny Defendants’ Motion to Dismiss Plaintiff’s
13
14 Second Amended Complaint, and allow the case to proceed on the merits and for
15 these crucial issues to be adjudicated.
16
Respectfully submitted,
17
18
19 Dated: April 27, 2021 THE RUTHERFORD INSTITUTE

20 BY:/s/ Julie A. Esposito
21 JULIE A. ESPOSITO
Attorneys for Amicus Curiae
22 and Affiliate of The Rutherford Institute
23
24
25
26
27
28

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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 24 of 25

1 CERTIFICATE OF SERVICE
2
I, the undersigned, declare that I am over the age of 18 and am not a party to
3 this action. I am employed in the City of West Covina, California; my business
address is 1609 West Garvey Ave. North, West Covina, CA 91790.
4
5 On the date below, I served a copy of the following document(s):
6 MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED]
BRIEF OF THE RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
7
8 on all interested parties in said case addressed as follows:
via electronic filing/service and via US First Class Mail:
9
10 Sonal N. Mehta-via email: sonal.mehta@wilmerhale.com
Allison Schultz-via email: allison.schultz@wilmerhale.com
11
Ari Holtzblatt- via email: ari.holtzblatt@whilmerhale.com
12 Molly Maureen Jennings-via email: molly.jennings@wilmerhale.com
Wilmer Cutler Pickering Hale and Dorr LLP
13
2600 El Camino Real, Suite 400
14 Palo Alto, CA 94306
Attorneys for Defendants, Facebook, Inc. and Mark Zuckerberg
15
16 Kevin Lester Vick-via email: kvick@jassyvick.com
17
Elizabeth Holland Baldridge-via email: ebaldridge@jassyvick.com
Jassy Vick Carolan LLP
18 800 Wilshire Blvd, Suite 800
19
Los Angeles, CA 90017
Attorneys for Defendants, The Poynter Institute for Media Studies, Inc.;
20 Politifact
21
Carol Jean LoCicero-via email: clocicero@tlolawfirm.com
22 March Richard Caramanica-via email: mcaramnica@tlolawfirm.com
23 Daniela B. Abratt-via email: dabratt@tlolawfirm.com
Thomas LoCicero PL
24 601 South Blvd.,
25 Tampa, FL 33606
Attorneys for Defendants, The Poynter Institute for Media Studies, Inc.;
26 Politifact (dismissed party)
27
Science Feedback
28 Emmanuel Vincent-President
24
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF
Case 3:20-cv-05787-SI Document 89 Filed 04/27/21 Page 25 of 25

7-9 Rue de Tocqueville
1
75017 Paris, France
2
3
BY MAIL: By placing the envelope for collection and mailing following our
4 ordinary business practices. I am readily familiar with the firm’s practice of collecting
5 and processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of business
6 with the United States Postal Service in West Covina, California, in sealed envelopes
7 with postage fully thereon.
8 I declare under penalty of perjury under the laws of the United States of
9 America that the foregoing is true and correct. I declare that I am employed in the
office of a member of the Bar of this Court at whose direction the service was made.
10 This declaration is executed in West Covina, California, on April 27, 2021.
11
12 /s/ Oxana G. Denisenko
13 Oxana Denisenko
14
15
16
17
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MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE and [PROPOSED] BRIEF OF THE
RUTHERFORD INSTITUTE IN SUPPORT OF PLAINTIFF

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Rutherford Institute Motion for Leave to File Amicus Brief — Children's Health Defense v. Facebook (Dkt. 89)

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