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Judge: Facebook’s Efforts to Curb Vaccine Misinformation Didn’t Violate First Amendment

A federal judge on Tuesday rejected a lawsuit claiming Facebook and its CEO Mark Zuckerberg violated the First Amendment by censoring an anti-vaccine group's social media posts at the behest of the federal government.

SAN FRANCISCO (CN) — A federal judge in California on Tuesday rejected a lawsuit claiming Facebook and its CEO Mark Zuckerberg violated the First Amendment by censoring an anti-vaccine group's social media posts at the behest of the federal government.

Children’s Health Defense (CHD), a Georgia nonprofit founded by vaccine skeptic Robert F. Kennedy Jr., sued Facebook in August 2020. The group claims U.S. government officials pressured Facebook to block, limit and slap warning labels on the group’s claims about purported harms associated with vaccines. The group also promotes disputed claims about supposed deleterious impacts of 5G wireless networks.

CHD was asking for at least $5 million in damages. The group said the social network’s censoring of its content and decision to disable a “donate” button on its Facebook page hobbled its ability to raise money through the platform.

The First Amendment generally shields internet platforms like Facebook from lawsuits challenging how they moderate or censor content, but CHD claims the government coerced and encouraged Facebook to stifle its speech, transforming a private company’s actions into a state-sponsored directive.

In a 45-page ruling issued Tuesday, Senior U.S. District Judge Susan Illston found that theory unsupported by the facts. She dismissed the lawsuit without leave to amend.

CHD cited multiple statements by Zuckerberg, the U.S. Centers for Disease Control and Prevention and “its proxy,” the World Health Organization, declaring that they were “in discussion” and “working together” to reduce the spread of vaccine misinformation.

The group also cited a February 2019 letter by U.S. Representative Adam Schiff, D-Calif., voicing concern about the proliferation of vaccine misinformation on Facebook. CHD claims that letter combined with Schiff’s statement during a June 2019 congressional hearing that lawmakers should “make changes to” a 1996 law that shields internet platforms from lawsuits over content posted by users amounts to a “threat” intended to “coerce” Facebook into doing the government’s bidding.

But Illston found none of those facts support claims that the government told Facebook to censor CHD’s social media posts or deactivate its donate button.

“CHD has failed to allege specific facts showing that Zuckerberg, or indeed anyone at Facebook, jointly acted with the federal government when Facebook took various actions regarding CHD’s Facebook page,” Illston wrote.

The judge also rejected accusations that the Centers for Disease Control and Schiff provided a “standard of decision” that Facebook uses to censor vaccine content.

“Nowhere in the letter does Rep. Schiff direct Facebook to adopt any specific standard to follow when it determines what speech constitutes vaccine misinformation or whether particular posts are false or misleading,” Illston wrote, adding that evidence shows Facebook started censoring CHD’s content in January 2019 before Schiff sent his letter to Facebook.

Illston additionally rejected claims that Facebook’s decision to deactivate CHD’s “donate” button amounted to an unconstitutional taking of private property. The group failed to establish “sufficient government action” to support that claim, she said.

CHD also sued Facebook for false advertising over its suggestions that CHD had violated the social network’s terms of service and that Facebook’s fact checkers tagged “false information” on CHD’s page based on a set of objectively neutral, reliable and up-to-date factual criteria.

To advance that claim under the Lanham Act, CHD would have to show Facebook's statements were commercial speech. CHD argued that by silencing its speech on vaccine safety, Facebook was promoting the products of its pharmaceutical advertisers and competitive services through its affiliation with fact checkers and public health agencies.

Illston noted that warning labels added to CHD’s content did not encourage Facebook users to donate to the CDC, fact-checking groups or any other organization. They merely encouraged users to find reliable information about vaccines from other sources.

Accepting CHD’s theory would mean “any fact-check with an explanation would constitute false advertising under the Lanham Act because of an injury to ‘messaging,’” Illston wrote.

The judge also dismissed racketeering conspiracy claims against Facebook and Zuckerberg, finding no statements or actions by the social network and its CEO were part of a scheme to commit wire fraud.

“CHD has not alleged any facts to establish that defendants, their associates, or any third party obtained money or property from deceived Facebook users or from CHD,” Illston wrote.

CHD had asked the judge to let it file an amended complaint with new information about a Facebook whistleblower who leaked documents showing Facebook was “systematically and covertly censoring true vaccine-related content, as well as mere expressions of opinion, provided such content was (or is) deemed capable of leading to ‘vaccine hesitancy.’”

The group also asked the judge to allow new allegations about previously undisclosed emails between Zuckerberg and Dr. Anthony Fauci, director of the U.S. National Institute of Allergy and Infectious Diseases. CHD said those emails show that Zuckerberg proposed collaborating with the government to provide a Covid-19 information “hub” on Facebook.

Additionally, the group requested leave to add claims related to the Biden administration’s efforts to deter the spread of vaccine misinformation.

The judge found none of those allegations would fix the central problem of the group’s lawsuit — the absence of facts showing that the government specifically directed Facebook to censor CHD’s speech.

“The Court concludes that none of the proposed supplemental allegations would cure the deficiencies in CHD’s claims, and thus that leave to amend would be futile,” Illston wrote.

The judge also dismissed claims against Facebook’s co-defendant, the Poynter Institute, owner of the fact-checking service Politifact, which was accused of colluding with Facebook to prevent CHD from promoting an article on a study that found children who got the flu vaccine were at “significantly” greater risk of contracting coronavirus. Politifact found that study was not credible.

Facebook and attorneys for CHD and the Poynter Institute did not immediately return requests for comment Tuesday.

Follow Nicholas Iovino on Twitter.

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