Jul 21, 2021

TLo Wins Dismissal of Suit Claiming Facebook Fact-Checker Conspired Against Anti-Vaccine Group

A federal court in California dismissed a four-count complaint filed by Children’s Health Defense (“CHD,” an anti-vaccine group led by Robert F. Kennedy, Jr.) against the Poynter Institute for Media Studies, Inc. Poynter conducts fact-checking on Facebook though its PolitiFact service. CHD also sued Facebook and its CEO Mark Zuckerberg. All claims against them were also dismissed.

CHD operates a page on Facebook and routinely posts or shares articles questioning the safety of vaccines, including COVID-19 vaccines. It alleged in its complaint that all defendants were engaged in a coordinated campaign with the government to squelch its free speech rights on Facebook and to remove anti-vaccine viewpoints from the platform by taking such actions as affixing false “warning labels” on CHD’s page, disabling fundraising abilities, and fact-checking content it posted.  It argued that the defendants were encouraging Facebook users to reject CHD-promoted information and instead rely on sources like the Centers for Disease Control and World Health Organization.  

The claim against Poynter arose from a fact-check it performed on a third-party article that was shared on CHD’s Facebook page which labeled the headline of the article as “false.” The publisher of the article accepted Poynter’s conclusion and corrected the title from “New Study: The Flu Vaccine is ‘Significantly Associated’ With An Increased Risk of Coronavirus” to “Study: The Flu Vaccine Is ‘Significantly Associated’ With An Increased Risk of Coronaviruses—Not COVID 19.”  It also alleged that Poynter’s operation of the International Fact-Checking Network, which certifies entities to engage in fact-checking on platforms like Facebook, was part of a plan to promote official government speech over CHD’s.

CHD alleged a federal Bivens claim, a federal false advertising under the Lanham Act, and a civil RICO wire fraud conspiracy.  It also requested declaratory and injunctive relief against all Defendants, specifically seeking that all warning labels be removed and the defendants be prohibited from future fact-checking.  In a motion to dismiss, TLo attorneys argued, among other things, that CHD could not set forth any reasonable allegations of government coordination, and that the lawsuit ironically sought to stifle Poynter’s First Amendment rights to engage in fact-checking journalism.

As to the Bivens claim specifically, the court agreed that such claims cannot lie against corporate entities like Poynter, nor did CHD otherwise allege sufficient facts to substantiate the coordination it claimed existed between government and the defendants.

Regarding the false advertising claim, TLo argued that Poynter’s fact-checking was an act of protected, non-commercial speech and not connected to goods or services in competition with CHD.  Nor did it encourage followers to donate to the CDC or Poynter instead of CHD, as CHD alleged. Again, the court agreed, explaining that a Lanham Act claim cannot arise where the parties compete only in the marketplace of ideas.

The civil RICO wire fraud claim was also dismissed with the court finding that to sustain a wire fraud claim would have required the defendants to have actually obtained money or property from CHD’s followers who were allegedly deceived. Because CHD had failed to allege this critical fact, the claim failed.

Finally, the court dismissed CHD’s claim for declaratory and injunctive relief, finding that because it had not stated a claim under the other counts, there was no case or controversy to decide, nor was CHD entitled to injunctive relief under the First Amendment.

Thomas & LoCicero attorneys Carol J. LoCicero, Mark R. Caramanica, and Daniela B. Abratt represented Poynter. The case is styled Children’s Health Defense v. Facebook Inc., et al., No. 20-cv-05787-SI (N.D. Cal.).

With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida-based law firm with a national practice focused on business litigation; media and entertainment law; intellectual property and marketing; and data and privacy.Download the opinion

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