112 F.4th 742
9th Cir.2024Background
- Children’s Health Defense (CHD), an anti-vaccine advocacy nonprofit, published content on Facebook and alleged Meta added warning labels, demoted posts, disabled fundraising, and ultimately removed CHD from Facebook/Instagram.
- CHD sued Meta, Mark Zuckerberg, the Poynter Institute, and Science Feedback asserting First and Fifth Amendment claims (including Bivens damages), Lanham Act, and RICO violations; district court dismissed; this is CHD’s appeal.
- CHD’s core theory: Meta acted at the direction or under compulsion of federal actors (CDC, White House, Congress) to censor CHD’s vaccine-related speech; CHD relied on communications, emails, a government “portal,” and public statements.
- Defendants argued Meta is a private actor; requests and guidance from government officials (and §230’s protections) do not transform Meta into a state actor; Lanham Act and RICO claims fail for lack of commercial advertising and proximate causation, respectively.
- The Ninth Circuit affirmed dismissal: CHD failed to plead state action (so constitutional claims and Takings failed), Lanham Act claim failed because fact-check labels are not commercial advertising, and RICO failed for lack of proximate cause for alleged wire fraud.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Meta’s content-moderation is "state action" (First Amendment/Fifth Amendment) | Government engaged/coerced Meta or jointly acted with Meta to censor CHD; specific emails, portal, and official statements show joint action or compulsion | Meta acted under its own policies; governmental statements/requests were general, not coercive, and do not make Meta a state actor; §230 is neutral immunity | No state action: CHD failed to plead a government rule or specific agreement/compulsion sufficient to attribute Meta’s conduct to the government; constitutional claims dismissed |
| Whether §230 + government pressure converts Meta into a state actor | §230 confers a government-created power to censor at scale; combined with sustained federal pressure this makes Meta’s moderation attributable to the State | §230 is passive statutory immunity; relying on §230 would make all platforms state actors; government communications reflect parallel objectives, not direction | Rejected: §230 does not by itself, nor combined with stated facts, suffice to show state action; majority declines to treat Meta as a state actor |
| Lanham Act claim (false designation/false advertising) | Labels and fact-check overlays disparage CHD and promote Meta’s fact-checkers, harming CHD’s fundraising/market for health information | Labels are not "commercial advertising or promotion"; Meta’s actions are noncommercial editorial moderation | Dismissed: fact-check labels are noncommercial speech, not within Lanham Act’s scope |
| RICO (wire fraud predicate) | Defendants misled visitors via labels and links to divert donations to other nonprofits; scheme to defraud injured CHD’s fundraising | Alleged deceptive sequence is too attenuated; no proximate cause tying labels to CHD’s lost donations; implausible factual chain | Dismissed: plaintiff failed to plead proximate cause and a plausible fraudulent scheme directly causing CHD’s injury |
Key Cases Cited
- Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802 (2019) (First Amendment restricts governmental action, not private conduct)
- Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (two-part state-action test: source of conduct and whether private party is fairly attributable to the State)
- Skinner v. Railway Labor Execs.’ Ass’n, 489 U.S. 602 (1989) (government-created, immunized private power plus government interest/benefit can render private action attributable to the State)
- Murthy v. Missouri, 144 S. Ct. 1972 (2024) (government communications to platforms evaluated in light of platforms’ independent incentives; no state action where company exercised its own judgment)
- Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) (platforms’ content curation constitutes expressive conduct protected by the First Amendment)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal standard for dismissals under Rule 12(b)(6))
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (federal damages remedy against federal officers; limits on extending Bivens)
- Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (RICO proximate-cause principles where third-party deception directly caused plaintiff’s loss)
- Hemi Group, LLC v. City of New York, 559 U.S. 1 (2010) (RICO proximate cause requires direct relation between alleged fraud and injury)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (§230 broadly precludes treating service providers as publishers/speakers for third-party content)
- Mathis v. Pacific Gas & Elec. Co., 891 F.2d 1429 (9th Cir. 1989) (private actor may be state actor where government pressured adoption of specific standard of decision)