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Plaintiff’s Request for Judicial Notice
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone: (415) 948-0045
E-Mail Address: rteich@juno.com
ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone: (917) 743-3868
E-Mail Address: mary.holland@childrenshealthdefense.org
Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CHILDREN’S HEALTH DEFENSE,
Plaintiff,
v.
FACEBOOK, INC., et al.,
Defendants.
Case No. 3:20-cv-05787-SI
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF PLAINTIFF’S OPPOSITION
TO MOTIONS TO DISMISS AND IN
SUPPORT OF PLAINTIFF’S MOTION TO
SUPPLEMENT THE PLEADINGS
Fed. R. Evid. 201
NOTICE OF REQUEST FOR JUDICIAL NOTICE
PLEASE TAKE NOTICE THAT Plaintiff Children’s Health Defense’s (“CHD”) hereby requests
that judicial notice be taken of certain facts. Plaintiff does not request to be heard on the propriety of taking
judicial notice of these adjudicative facts. (Fed. R. Evid. 201(e).)
STATEMENT OF REQUESTED RELIEF
Pursuant to Federal Rule of Evidence 201, CHD respectfully requests that the Court take judicial
notice of the facts and materials described below in connection: (1) with Defendants’ pending motions to
dismiss; (2) with CHD’s pending motion to supplement the pleadings; and (3) with any future proceedings
in this case to which these facts and materials may be relevant.
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Plaintiff’s Request for Judicial Notice
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LEGAL STANDARD
Federal Rule of Evidence 201 permits the court to take judicial notice of facts that “can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b)(2). Judicial notice may be requested “at any stage in the proceedings.” Id. 201(d). A court
“may take judicial notice on its own,” but “must take judicial notice if a party requests it and the court is
supplied with the necessary information.” Id. 201(c) (emphasis added).
Courts regularly take judicial notice of “matters of public record,” Harris v. Cty. of Orange, 682
F.3d 1126, 1132 (9th Cir. 2012); of “facts reported in newspaper articles if the facts are ‘capable of a
sufficiently accurate and ready determination,’” 1 WEINSTEIN’S FEDERAL EVIDENCE § 201.12[2] (citations
omitted), or if the news articles are offered not for the truth of the matters asserted but as evidence that such
facts have been publicly reported, see, e.g., The Washington Post v. Robinson, 935 F.2d 282, 291-92 (D.C.
Cir. 1991); of matter published on government websites, see, e.g., Denius v. Dunlap, 330 F.3d 919, 926
(7th Cir. 2003); Cty. of Santa Clara v. Astra USA, Inc., 401 F. Supp. 2d 1022, 1024 (N.D. Cal. 2005); and
of a party’s own disclosures if the authenticity of those disclosures is not disputed. See, e.g., In re Extreme
Networks, Inc., 2018 U.S. Dist. LEXIS 46638 at * 43 (N.D. Cal. Mar. 21, 2018); Vess v. Bank of Am., N.A.,
2012 U.S. Dist. LEXIS 4484 at *7 (S.D. Cal. Jan. 13. 2012); Velazquez v. GMAC Mortg. Corp., 605 F.
Supp. 2d 1049, 1058 (C.D. Cal. 2008).
FACTS TO BE JUDICIALLY NOTICED
Plaintiff CHD respectfully requests the Court to take notice of the following facts:
1.
On April 9, 2019, representatives of major Internet companies, including Facebook, were
summoned before the House Judiciary Committee to answer questions about dangerous content on social
media. House Committee on the Judiciary, Hearings, https://judiciary.house.gov/calendar/
eventslisting.aspx?EventTypeID=215&CategoryID=0&Congress=&Count=All.
2.
Immediately after that hearing, Congressman Cedric Richmond stated publicly that social
media companies, including Facebook, had “better” restrict what he and other members of Congress
deemed dangerous or harmful content or, “We’re going to make [regulation] swift, we’re going to make it
strong, and we’re going to hold them very accountable.” Tony Romm, Lawmakers Plan to Ratchet Up
Pressure on Tech Companies’ Content Moderation Policies, Wash. Post (Apr. 9, 2019),
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Plaintiff’s Request for Judicial Notice
CHD v. Facebook et al.; Case No. 3:20-cv-05787-SI
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https://www.washingtonpost.com/news/powerpost/paloma/the-technology-202/2019/04/09/the-technology-
202-lawmakers-plan-to-ratchet-up-pressure-on-tech-companies-content-moderation-
practices/5cabee50a7a0a475985bd372. Chairman of the House Judiciary Committee Jerrold Nadler added,
“Let’s see what happens by just pressuring them.” Id.
3.
Three days after that hearing, in April, 2019, Speaker of the House Nancy Pelosi publicly
warned social media companies that those companies’ Section 230 immunity could be “in jeopardy.”
Emily Birnbaum, Pelosi puts tech on notice with warning of ‘new era’ in regulation, The Hill (Apr. 12,
2019), https://thehill.com/policy/technology/438652-pelosi-warns-its-a-new-era-for-regulating-big-tech.
Speaker Pelosi further commented that “the era of self-regulation” in this country for Big Tech is
“probably” over, and that “[w]hen we come to 230, you really get their attention . . . it is not out of the
question that that could be removed” because “for the privilege of 230, there has to be a bigger sense of
responsibility on it.” Id.; see https://www.vox.com/2019/4/12/18307957/nancy-pelosi-donald-trump-
twitter-tweet-cheap-freak-presidency-kara-swisher-decode-podcast-interview (audio and transcript).
4.
In June 2020, Speaker Pelosi, referring specifically to Facebook and to so-called “COVID-
19 disinformation,” declared that “social media executives have utterly failed to stop the spread of
disinformation on their platforms.” William Turvill, Nancy Pelosi: Social media bosses have ‘utterly failed’
to combat Covid-19 disinformation, PressGazette (June 17, 2020), https://www.pressgazette.co.uk/nancy-
pelosi-social-media-bosses-have-utterly-failed-to-combat-covid-19-disinformation. At the same time, she
warned that Congress and others “must send a message to social media executives: You will be held
accountable for your misconduct.” Id. (emphasis added). Remarks similar in substance are published on
Speaker Pelosi’s official government website. See Nancy Pelosi, Speaker of the House, Update,
Disinformation Must Stop, Jun. 1, 2020, https://pelosi.house.gov/media-center/pelosi-
updates/disinformation-must-stop.
5.
Speaker Pelosi made these comments as the House Committee on Energy and Commerce
was about to conduct a hearing entitled, “A Country in Crisis: How Disinformation Online is Dividing the
Nation.” House Committee on Energy and Commerce, Jun. 24, 2020, https://energycommerce.house.gov/
committee-activity/hearings/joint-hearing-on-a-country-in-crisis-how-disinformation-online-is.
6.
In his opening statement for this hearing, Chairman Mike Doyle said:
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The matter before the Committee today is one of pressing importance, the flood of
disinformation online—principally distributed by social media companies—and the
dangerous and divisive impact it is having on our nation as we endure the COVID-19
epidemic. . . . Our nation and the world are facing an unprecedented tsunami of
disinformation that threatens to devastate our country and the world. It has been driven by . .
. the social media companies themselves—who have put profits before people as their
platforms have become awash in disinformation . . . . [T]hese companies [Facebook,
YouTube and Twitter] have made trillions of dollars by feeding people what they want to
hear. As a result, these platforms have peddled lies about COVID 19. . . . Make no mistake,
the future of our democracy is at stake and the status quo is unacceptable. While Section 230
has long provided online companies the flexibility and liability protections they need to
innovate and to connect people from around the world, it has become clear that reform is
necessary if we want to stem the tide of disinformation rolling over our country.
Opening Statements, Committee on Energy and Commerce Hearing on “A Country in Crisis: How
Disinformation Online is Dividing the Nation,” June 24, 2020, https://energycommerce.house.gov/
sites/democrats.energycommerce.house.gov/files/documents/2020.6.24.DOYLE_.SCHAKOWSKY.%20Di
sninformation%20Online%20dividing%20the%20Nation.CAT_.CPC__1.pdf (statement of Chairman
Doyle).
7.
In her opening statement for the same hearing, Chairman Jan Schakowsky said:
The truth is, Section 230 protects business models that generate profits off scams [and] fake
news . . . . This was never the intent, and since both courts and industry refuse to change,
Congress must act. . . . Facebook in particular seems to enjoy a cozy relationship with the
Trump Administration, aided by Facebook’s own loyal Trump supporters . . . . [S]omething
needs to be done. The American people are dying and suffering as a result of online
disinformation. I look forward to working with my colleagues to modernize Section 230.
Id. (statement of Chairman Schakowsky).
8.
In July 2020, the House Judiciary Committee questioned the CEOs of the biggest tech
Internet platforms. At these hearings, Democratic Congressman Jamie Raskin accused the tech companies
of not taking strong enough action to block speech he deemed objectionable and dangerous. Subcommittee
on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, INVESTIGATION OF
COMPETITION IN DIGITAL MARKETS 68 (2020). The committee report, which proposed sweeping antitrust
measures with drastic economic consequences for big tech platforms, expressly referred to the failure of big
tech to curb such content as evidence of the lack of meaningful competition in their markets. Id. at 67
(“because there is not meaningful competition, dominant firms face little financial consequence when
misinformation and propaganda are promoted online”).
9.
The several-hundred page report issued by the Judiciary Committee in early October, 2020,
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specifically found that Facebook had monopoly power in the social networking market and proposed
forcing Facebook to divest itself of billion-dollar platforms like Instagram. See generally id.; Marcy
Gordon, Democrats Call for Congress to Rein In, Break Up Big Tech, Associated Press, Oct. 6, 2020,
apnews.com/article/technology-50e69e921c6699a3edbd730c12292436.
10.
In October 2020, the Senate Commerce Committee announced yet another congressional
hearing on the failure of big tech to curb “misinformation” online, voting to subpoena the big three tech
CEOs, including Defendant Zuckerberg, if they didn’t agree to testify voluntarily. Mary Gordon, CEOs of 3
Tech Giants To Testify at Oct. 28 Senate Hearing, Oct. 5, 2020,
https://abcnews.go.com/Business/wireStory/ceos-social-media-giants-testify-senate-hearing-73433414.
11.
As announced on the official committee website, the hearing was entitled, “Does Section
230’s Sweeping Immunity Enable Big Tech Bad Behavior?” U.S. Senate Committee on Commerce,
Science and Transportation, Oct. 28, 2020, https://www.commerce.senate.gov/2020/10/does-section-230-s-
sweeping-immunity-enable-big-tech-bad-behavior.
12.
The official committee announcement of the hearing states: “The hearing will examine
whether Section 230 of the Communications Decency Act has outlived its usefulness in today’s digital age.
It will also examine legislative proposals to modernize the decades-old law, increase transparency and
accountability among big technology companies for their content moderation practices.” Id.
13.
At the hearing, members of Congress once again threatened the major tech platforms with
adverse legal consequences such as elimination of their Section 230 immunity if they did not engage in
“more content moderation.” Lauren Feiner, Big Tech CEO Senate Hearing Ends with Little Discussion on
How To Fix Companies’ Liability Shield, Oct. 28, 2020, https://www.cnbc.com/2020/10/28/facebook-
google-and-twitter-ceos-testify-in-congress-over-section-230-live-updates.html. A full audio recording of
the hearing is available at https://www.commerce.senate.gov/2020/10/does-section-230-s-sweeping-
immunity-enable-big-tech-bad-behavior.
14.
In November, 2020, President-elect Biden announced that Congressman Richmond, who
had warned social media companies that they’d “better” restrict what he and other members of Congress
deemed dangerous or harmful content or, “We’re going to make [regulation] swift, we’re going to make it
strong, and we’re going to hold them very accountable,” supra, would be joining the White House in
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January, 2021 to serve as a Senior Advisor to the President. Bart Jansen, Joe Biden names 9 top White
House appointees, including Rep. Cedric Richmond and campaign manager O’Malley Dillon, USA Today
(Nov. 17, 2020).
15.
As reported on the official governmental website of Senator Amy Klobuchar, on January 21,
2021, Senator Klobuchar along with other Senators sent a letter to Zuckerberg as well as the CEOs of other
major social media companies, demanding that they crack down on “vaccine-related misinformation.” The
letter did not state this demand as a request but as an “imperative”: “policies must be strictly enforced to
limit users’ exposure to misinformation.” News Release, Senators Klobuchar, Baldwin, Peters Urge Tech
Industry Leaders to Combat Coronavirus Vaccine Misinformation, Jan. 25, 2021,
https://www.klobuchar.senate.gov/public/index.cfm/2021/1/senators-klobuchar-baldwin-peters-urge-tech-
industry-leaders-to-combat-coronavirus-vaccine-misinformation (emphasis added).
16.
In February, 2021, the House Committee on Energy and Commerce summoned Zuckerberg
as well other Big Tech CEOs to testify at a March hearing on the supposed “misinformation and
disinformation plaguing online platforms,” including specifically supposed “falsehoods about the COVID-
19 vaccine.” See, e.g., Glenn Greenwald, Congress Escalates Pressure on Tech Giants to Censor More,
Threatening the First Amendment, Substack, Feb. 20, 2021, https://greenwald.substack.com/p/congress-
escalates-pressure-on-tech; E&C Committee Announces Hearing With Tech CEOs On The Misinformation
Plaguing Online Platforms, House Committee on Energy and Commerce, Feb. 18, 2021,
https://energycommerce.house.gov/newsroom/press-releases/ec-committee-announces-hearing-with-tech-
ceos-on-the-misinformation-and.
17.
In a joint public statement on February 18, 2021, announcing the March hearing, the House
committee chairs asserted: “These online platforms have allowed misinformation to spread, intensifying
national crises with real-life, grim consequences for public health and safety. This hearing will continue
the Committee’s work of holding online platforms accountable for the growing rise of misinformation and
disinformation.” E&C Committee Announces Hearing With Tech CEOs On The Misinformation Plaguing
Online Platforms, House Committee on Energy and Commerce, Feb. 18, 2021,
https://energycommerce.house.gov/newsroom/press-releases/ec-committee-announces-hearing-with-tech-
ceos-on-the-misinformation-and (emphasis added).
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Plaintiff’s Request for Judicial Notice
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18.
On March 25, 2021, the House Energy and Commerce Committee questioned three Big
Tech CEOs, including Zuckerberg, at a hearing entitled “Disinformation Nation: Social Media’s Role in
Promoting Extremism and Disinformation.” House Energy and Commerce Committee, Hearings,
https://energycommerce.house.gov/committee-activity/hearings/hearing-on-disinformation-nation-social-
medias-role-in-promoting.
19.
The “Memorandum from Chairman Pallone” prepared for this hearing indicated that a
principal topic of the hearing was the “role” of “Facebook, Google, and Twitter” in “the dissemination and
amplification of misinformation and extremist content. For instance, since the beginning of the coronavirus
disease of 2019 (COVID-19) pandemic, all three platforms have spread substantial amounts of
misinformation about COVID-19.” House Committee on Energy and Commerce,
https://docs.house.gov/meetings/IF/IF16/20210325/111407/HHRG-117-IF16-20210325-SD002.pdf.
20.
In his opening statement for this hearing, Chairman Frank Pallone, Jr. said:
Five years ago, . . . Facebook, Google, and Twitter were warned about – but simply ignored
– their platforms’ role in spreading disinformation. Since then, the warnings have continued,
but the problem has only gotten worse. . . . It is now painfully clear that neither the market
nor public pressure will force these social media companies to take the aggressive action
they need to take to eliminate disinformation and extremism from their platforms. And,
therefore, it is time for Congress and this Committee to legislate and realign these
companies’ incentives to effectively deal with disinformation . . . . The dirty truth is that
[Facebook, Google, and Twitter] are relying on algorithms to purposefully promote
conspiratorial, divisive, or extremist content so they can rake in the ad dollars. . . . It’s
crucial to understand that these companies aren’t just mere bystanders – they are playing an
active role in the meteoric rise of disinformation and extremism. So when a company is
actually promoting this harmful content, I question whether existing liability protections
should apply. Members on this Committee have suggested legislative solutions and
introduced bills. The Committee is going to consider all these options so that we can finally
align the interests of these companies with the interests of the public and hold the platforms,
and their CEOs, accountable when they stray. That is why you are here today, Mr.
Zuckerberg, Mr. Pichai, and Mr. Dorsey. You have failed to meaningfully change after your
platforms played a role in fomenting insurrection, in abetting the spread of COVID-19, and
trampling Americans civil rights. . . . The time for self-regulation is over. It is time we
legislate to hold you accountable.
Committee on Energy and Commerce, Opening Statement as Prepared for Delivery of Chairman Frank
Pallone, Jr., Mar. 25, 2021, https://energycommerce.house.gov/sites/democrats.energycommerce.
house.gov/files/documents/Opening%20Statement_Pallone_CAT-CPC_2021.3.25_0.pdf.
21.
As reported in one major newspaper, at the March 25 hearing, “Lawmakers slammed the
leaders of Facebook, Google and Twitter for the of their companies in the deadly Capitol attack and for
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failing to police . . . COVID-19 and vaccine misinformation on their platforms, warning that Washington is
prepared to crack down,” including by removing those companies’ “legal protections under Section 230 of
the Communications Decency Act.” Jessica Guynn, Hate Speech, Censorship, Capitol Riot, Section 230:
Lawmakers Slam Facebook, Google and Twitter, Warn of Regulation, USA Today, Mar. 25, 2021,
https://www.usatoday.com/story/tech/2021/03/25/facebook-google-youtube-twitter-dorsey-zuckerberg-
pichai-section-230-hearing/6990173002.
22.
Ahead of the March 25 hearing, Consumer Protection and Commerce Chair Jan Schakowski
wrote that “this hearing is really a call to action. We need to make these companies more accountable to
the American people.” Rep. Schakowski added that this goal would be accomplished by her bill, the
Online Consumer Protection Act, which would cut back social media companies’ Section 230 immunity,
provide for FTC enforcement, and allow consumer lawsuits. House to Confront Tech CEOs Over Online
Spread of False Info, Bloomberg Law, Mar. 22, 2021, news.bloomberglaw.com/tech-and-telecom-
law/house-to-confront-tech-ceos-over-online-spread-of-false-info.
23.
On April 19, 2021, Senators Amy Klobuchar (D-Minn.) and Ben Ray Lujan (D-NM) wrote a
letter to Zuckerberg condemning Facebook for failing to take sufficiently aggressive action against
“vaccine misinformation” and demanding that Facebook do more to censor and silence certain specified
supposed “anti-vaccine influencers,” including “Robert F. Kennedy, Jr.” United States Senator Amy
Klobuchar, Amy Klobuchar Takes Aim at 12 Vaccine Misinformation Influencers, Apr. 19, 2021,
https://www.klobuchar.senate.gov/public/index.cfm/2021/4/amy-klobuchar-takes-aim-at-12-vaccine-
misinformation-influencers.
24.
Even as she was writing Facebook in January 2021, demanding more censorship of “vaccine
misinformation,” Senator Klobuchar, who is Chair of the Senate Judiciary antitrust committee, had also
introduced legislation that would enable the federal government to impose unprecedented billion-dollar
fines on Facebook under federal antitrust law. Isobel Asher Hamilton, A new antitrust bill could pose a
huge threat to Google, Amazon, Apple, and Facebook, with potential fines of up to 15% of annual revenue,
Business Insider, Feb. 4, 2021, businessinsider.com/amy-klobuchar-antitrust-bill-apple-amazon-google-
facebook-fines-2021-2; United States Senator Amy Klobuchar, Klobuchar Introduces Legislation to Deter
Anticompetitive Abuses, Mar. 10, 2020, https://www.klobuchar.senate.gov/public/
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index.cfm/2020/3/klobuchar-introduces-legislation-to-deter-anticompetitive-abuses.
25.
On or about February 8, 2021, Facebook issued its “COVID-19 and Vaccine Policy Updates
& Protections,” which prohibit, inter alia, users from posting any “claims that COVID-19 vaccines are not
effective in preventing COVID-19.” Facebook COVID-19 and Vaccine Policy Updates & Protections,
https://www.facebook.com/help/230764881494641. The Court may take judicial notice of the existence
and content of this website. See Threshold 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 determined from sources whose accuracy cannot reasonably be disputed. See id. at 145.
26.
Facebook maintains a “Coronavirus (COVID-19) Information Center” which Facebook
makes available to all of its users. Facebook Coronavirus (COVID-19) Information Center,
https://www.facebook.com/coronavirus_info. The Page contains updates, a link to the CDC.gov, links to
other “leading health organizations,” a “Facts about COVID-19” section, a “Find a COVID vaccine” link,
and a curated “feed” of posts about COVID-19 that often features and cross-links with posts from the CDC.
Feedback inserts links to its “Coronavirus (COVID-19) Information Center” into users’ personal feeds.
Additionally, the CDC maintains its own Facebook page of “public health”-related information which the
CDC wishes to make available to Facebook users. https://www.facebook.com/CDC.
27.
A high-ranking Facebook officer had publicly and expressly admitted that Facebook
removes content challenging vaccine efficacy, safety, or necessity even if that content is true. According to
a Facebook vice president, the company is “removing groups, pages and accounts that deliberately
discourage people from taking vaccines, regardless of whether the information can be verified as false or
not.” BBC News, The volunteers using “honeypot” groups to fight anti-vax propaganda, May 10, 2021,
https://www.bbc.com/news/blogs-trending-57051691.
ARGUMENT
The statements by members of Congress are material to CHD’s claim that the test establishing
when permissible exhortation crosses the line into impermissible coercion was met here: “Where comments
of government officials can reasonably be interpreted as intimating that some form of punishment or
adverse regulatory action will follow failure to accede to official’s request, a valid [First Amendment]
claim can be stated.” Hammerhead Enterprises, Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983); American
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Family Ass’n v. San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002). None of these statements is offered
for the truth of matters asserted (for example, congressional statements that social media companies have
“failed” to curb the spread of “COVID disinformation” are not offered for the truth of that proposition), but
solely for the fact that they were made and publicly reported. All these statements, as well as the hearings
referenced above, are matters of public record “not subject to reasonable dispute” under Fed. R. Evid. 201
and the authorities set forth above, and are appropriate for judicial notice.
The disclosures made by Facebook are material to CHD’s claim that Facebook, despite its claims to
remove or restrict only “false” vaccine-related content, actually restricts true content as well, so long as that
content challenges the positions or recommendations of the CDC. Because these disclosures were made by
Facebook itself on its own website, or by its own high-ranking officers, and their authenticity is not
seriously open to dispute, these statements are appropriate for judicial notice.
Finally, Facebook’s “Coronavirus (COVID-19) Information Center” and the CDC’s Facebook page
illustrate the wide ambit of free speech available to Facebook which is not implicated by CHD’s action to
enjoin Facebook from its state-sponsored censorship of CHD’s page.
CONCLUSION
For the reasons set forth herein, CHD respectfully requests that the Court take judicial notice of the
facts enumerated above.
Dated: May 11, 2021
Respectfully submitted,
ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense
MARY S. HOLLAND
General Counsel, Children’s Health Defense
ROGER I. TEICH
Counsel for Plaintiff Children’s Health Defense
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