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Ninth Circuit:
Meta Did Not Act for U.S. in Censoring Vaccine Postings
Miller Says Tech Giant, Though Encouraged by Government, Followed Its Own Policy to Moderate Content
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday that a social media company did not violate the First Amendment’s protection against government abridgment of free speech in blocking the ability of an advocacy organization—dedicated to educating the public about potential dangers of vaccines—to share articles and receive donations through a button on its page as the moderation was not done on behalf of the state.
The decision affirms dismissal of an action by Children’s Heath Defense (“CHD”), founded by Robert F. Kennedy Jr., against Facebook and Instagram operator Meta Platforms, Inc. and CEO Mark Zuckerberg, as well as against the companies hired by the social media giant to filter out “misinformation”—Poynter Institute for Media Studies, Inc., which operates the popular website PolitiFact, and Science Feedback.
The plaintiff alleges that changes made by the platform following statements by members of the federal government—including Reps. Adam Schiff and Nancy Pelosi, both California Democrats—and the creation of a portal by which certain Centers for Disease Control and Prevention personnel may submit requests to censor posts directly to Facebook, establish that the social media company was acting on behalf of the state.
Case Dismissed
Circuit Judge Eric D. Miller authored the opinion affirming the judgment in favor of the defendants by Senior District Court Judge Susan Illston of the Northern District of California. Senior District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation, joined in the opinion.
Miller wrote:
“Our decision should not be taken as an endorsement of Meta’s policies about what content to restrict on Facebook. It is for the owners of social media platforms, not for us, to decide what, if any, limits should apply to speech on those platforms. That does not mean that such decisions are wholly unchecked, only that the necessary checks come from competition in the market—including, as we have seen, in the market for corporate control. If competition is thought to be inadequate, it may be a subject for antitrust litigation, or perhaps for appropriate legislation or regulation. But it is not up to the courts to supervise social media platforms through the blunt instrument of taking First Amendment doctrines developed for the government and applying them to private companies.”
Circuit Judge Daniel P. Collins dissented, saying:
“Because I think that CHD could amend its complaint in a manner that states a cause of action for injunctive and declaratory relief based on the theory that Meta’s…interactions with the Government implicate the First Amendment rights of CHD, Kennedy, and CHD’s other members, I would reverse the district court’s judgment in favor of Meta to the extent it held to the contrary.”
Alleged State Action
CHD points to a Feb. 14, 2019 public letter addressed to Zuckerberg by Schiff (now a candidate for the U.S. Senate) in which the congressman identifies himself “[a]s a Member of Congress who is deeply concerned about declining vaccination rates around the nation,” and urged that Facebook to implement specific algorithms to identify, censor and remove “vaccine misinformation” and reject all paid advertising from the sources of such “misinformation.”
Three weeks later, Meta announced it was taking a variety of steps to reduce the visibility of the posts spreading negative information about vaccines. It then deactivated CHD’s fundraising button—by which it had raised more than $40,000 in 2019— and placed a banner on the top of CHD’s page saying:
“This Page posts about vaccines
“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 have about vaccines.
“Go to CDC.gov”
CHD alleges that Meta limited the visibility of its content by shadow-banning, a process where the posts only remain visible to the poster and a small audience of Facebook friends, and deleted posts as well as eliminating the ability of the organization to directly challenge censorship decisions.
CHD also makes note of public remarks by then-House Speaker Pelosi in April 2019 in which she raised the possibility of removing immunity granted to social media platforms for hosting third-party content by 47 U.S. Code § 230. CHD filed suit in August 2020, arguing that the defendants were working in concert with, or under the coercion of, the federal government to censor CHD’s speech in violation of the First Amendment.
State Policy Requirement
Miller said that under certain circumstances, a private party will be treated as a state actor for constitutional purposes. To qualify as a state agent, a private party must meet the state policy and the state actor requirements.
To satisfy the state policy requirement, a plaintiff must show that a private institution is acting in enforcement of a state-imposed rule. Reasoning that the plaintiff’s First Amendment claim fails “at this threshold step,” Miller wrote:
“The closest CHD comes to alleging a federal ‘rule of conduct’ is the CDC’s identification of ‘vaccine misinformation’ and ‘vaccine hesitancy’ as top priorities in 2019. But…those statements fall far short of suggesting any actionable federal ‘rule’ that Meta was required to follow. And CHD does not allege that any specific actions Meta took on its platforms were traceable to those generalized federal concerns about vaccine misinformation.”
He declared that “CHD’s failure to satisfy the first part of the test is fatal to its state action claim,” but went on to consider the state action requirement. Miller points out that CHD invokes three theories of state action, saying:
“First, it argues that Meta and the federal government agreed to a joint course of action that deprived CHD of its constitutional rights. Second, it argues that Meta deprived it of its constitutional rights because government actors pressured Meta into doing so. Third, it argues that the ‘convergence’ of ‘joint action’ and ‘pressure,’ as well as the ‘immunity’ Meta enjoys under…§230, make its allegations that the government used Meta to censor disfavored speech all the more plausible. CHD cannot prevail on any of these theories.”
The jurist opined that CHD has not pointed to any specific agreement between Meta and the government and remarked that “[w]ithout plausible allegations of an agreement to take specific action, we cannot say that Meta’s conduct is fairly attributable to the government.”
Rejecting an implicit agreement, he concluded that “the facts that CHD alleges do not make that inference plausible in light of the obvious alternative—that the government hoped Meta would cooperate because it has a similar view about the safety and efficacy of vaccines.”
The jurist declared:
“Meta evidently believes that vaccines are safe and effective and that their use should be encouraged. It does not lose the right to promote those views simply because they happen to be shared by the government.”
No Coercion
Miller noted that “[a]ll CHD has pleaded is that Meta was aware of a generalized federal concern with misinformation on social media platforms and that Meta took steps to address that concern….If Meta implemented its policy at least in part to stave off lawmakers’ efforts to regulate, it was allowed to do so without turning itself into an arm of the federal government.”
Finding that the statements by Congress members “are firmly on the constitutional side” of the fine lines between permissible expressions of personal opinions by lawmakers and implied threats to employ state power, he said that “the letters did not require Meta to take any particular action and did not threaten penalties for noncompliance.”
He added:
“The immunity from liability conferred by section 230 is undoubtedly a significant benefit to companies like Meta….It might even be the case that such platforms could not operate at their present scale without section 230. But many companies rely, in one way or another, on a favorable regulatory environment or the goodwill of the government. If that were enough for state action, every large government contractor would be a state actor.”
Collins’ Dissent
Collins primarily took issue with the majority’s dismissal of CHD’s assertions relating to §230, saying “it is important to keep in mind that the vast practical power that Meta exercises over the speech of millions of others ultimately rests on a government-granted privilege to which Meta is not constitutionally entitled.”
He continued:
“[W]here a private party exercises a distinctive government-conferred immunized power that is specifically targeted at particular rights of third parties, and those particular rights are ones that are protected from governmental infringement by the Constitution, then that private party’s interactions with the Government as to how to exercise that power over those third parties’ constitutional rights implicate constitutional standards and must comply with those standards. And under that analysis, CHD can adequately plead state action here.”
The case is Children’s Health Defense v. Meta Platforms, Inc., 21-16210.
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