competition in the market of ideas isn’t commercial competition

Health Defense v. Facebook Inc., 2021 WL 2662064, No. 20-cv-05787-SI (N.D. Cal.
Jun. 29, 2021)

an anti-vaccination group (that also considers pesticides and wireless tech
dangerous), sued Facebook and other defendants for violating the First and
Fifth Amendments, Lanham Act false advertising, and RICO violations. It didn’t
like having some of its content on its FB page labeled “false,” out of date, or
unreliable. Prepandemic, FB also allegedly barred CHD from disputing any
actions taken by FB, and allegedly began to demote its content
(“shadowbanning”). FB deactivated the “donate” button on CHD’s page and barred
it from buying new ads. After repeated violations, FB put a Warning Label at
the top of its page: “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” Then, after the pandemic hit, CHD shared an article
about the flu vaccine written by a third party website. PolitiFact labeled the
title of the article as “false,” noting that the title is “ambiguous and
misleading,” and the site changed the title to clarify that it was not about
the novel coronavirus.

alleged the usual fringe argument that the United States government — through
Congressman Adam Schiff, the Centers for Disease Control (CDC), and the World
Health Organization (“WHO”), as the CDC’s “proxy” — has “privatized” the First
Amendment by “teaming up” with Facebook to censor CHD’s vaccine safety speech.

court spent a bunch of time on the state action issues; I will only mention the
theory that “government immunity [under Section 230 of the CDA] plus pressure
(Rep. Schiff) … should turn Facebook and Zuckerberg’s private-party conduct
into state action.” The pressure included an alleged threat to rethink §230 if
FB didn’t take more action. No, because “Section 230 does not require private
entities to do anything, nor does it give the government a right to supervise
or obtain information about private activity.” Nor did the general “threat” to
revisit §230 constitute direction to a specific entity to take a specific
allegedly unconstitutional action against a specific person such as CHD.

Act: the warning labels and fact checks allegedly told consumers to abandon CHD
and “instead to follow CDC’s recommendations to get the vaccines produced by
its major advertisers, Merck, GSK, Sanofi, and Pfizer, who buy $1 billion per
annum in advertisements from Facebook.” Thus, CHD alleged, “Facebook and CHD
may reasonably be considered commercial competitors with respect to the
messaging regarding vaccines and 5G that they promulgate to Facebook users.”

if this is a political speech case, as CHD alleged, it was hard to see how it
fell in the Lanham Act’s zone of interests. “[T]he warning label and fact-checks
are not disparaging CHD’s ‘goods or services,’ nor are they promoting the ‘goods
or services’ of Facebook, the CDC, or the fact-checking organizations ….” They
didn’t encourage users to donate to anyone, but to look for reliable
information at the CDC. “Thus, all of the alleged misrepresentations – the
warning label and the fact-checks – are simply providing information, albeit
information with which CHD disagrees.” “Information” was not a relevant
service; “[u]nder CHD’s expansive and novel theory of false advertising, any
Facebook warning label identifying an alternative source of information and any
fact-check with an explanation would constitute false advertising under the
Lanham Act because of an injury to ‘messaging.’”

have held that “[t]he mere fact that the parties may compete in the marketplace
of ideas is not sufficient to invoke the Lanham Act.”  In past suits where nonprofits’ Lanham Act
claims were entertained, “the non-profit alleged an injury to a commercial
interest in sales or reputation.” Thus, CHD was neither within the Lanham Act’s
zone of interests nor did it allege that the warning label and fact-checks constituted
“commercial advertising or promotion,” even assuming that Lexmark
abrogated a commercial competition requirement in the test for the latter.

claims failed because they were RICO claims.

from Blogger

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