Children’s Health Defense (CHD) has appealed a Northern District of California lawsuit it lost last month, according to a Ninth Circuit Court of Appeals scheduling order issued Wednesday. CHD’s August 2020 complaint was filed against Facebook Inc., CEO Mark Zuckerberg, the Poynter Institute for Media Studies Inc. (Poynter), and Science Feedback, the latter two of which are nonprofits that provide fact-checking services to Facebook.
The June 29 ruling in favor of the defendants explained CHD’s allegations. According to the opinion, the plaintiff asserts that CHD’s Facebook page, to which it posts “articles and opinion pieces about the harms of vaccines, including COVID-19 vaccines, as well as the dangers of pesticides and wireless technologies such as 5G,” was unlawfully censored by the defendants with various tags labeling posts as false, out of date, or unreliable as determined by third-party fact checkers.
The U.S. government, through Congressman Adam Schiff, the Centers for Disease Control, with the World Health Organization as its proxy, allegedly privatized the First Amendment by collaborating with Facebook to bridle CHD’s vaccine safety speech, the opinion said. The CHD accused the defendants of engaging in a “smear campaign” and committing repeated acts of fraud and deceit in furtherance of their censorship efforts to intentionally marginalize CHD and its page’s posts, ultimately discouraging users from accessing the content.
Judge Susan Illston considered CHD’s arguments including its First and Fifth Amendment assertions. She held that CHD’s Constitutional allegations were foreclosed as a matter of law because its damages claims were only applicable to federal actors. Among other faults, the second amended complaint failed to establish that defendant Zuckerberg engaged in a federal action, the ruling said.
The trial court also dismissed the plaintiff’s Lanham Act claim challenging advisory comments posted by Facebook on CHD’s page as false advertising. In so finding, the court explained that CHD’s alleged injuries were not within the Lanham Act’s “zone of interests” and that the social media platform’s warning label and fact-checks were not “commercial advertising or promotion.”
The court also rejected CHD’s Racketeer Influenced and Corrupt Organizations Act claim for failure to allege any facts establishing that the “defendants, their associates, or any third party obtained money or property from deceived Facebook users or from CHD.” Finally, the court denied leave to amend, reasoning that CHD has already revised its 151-page complaint three times in response to motions to dismiss filed by the defendants and that further amendment would not cure its deficiencies.
The case will now head to the Ninth Circuit Court of Appeals where CHD’s opening brief is due Oct. 28 and the defendant-appellees’ answering brief by Nov. 29.
CHD is represented by Roger I. Teich and the organization’s own counsel. Poynter is represented by Jassy Vick Carolan LLP and Thomas & Locicero PL, and Facebook by Wilmer Cutler Pickering Hale and Dorr.