Children’s Health Defense (CHD) filed a lawsuit in the U.S. District Court, Northern District of California this week against Facebook, Inc., Mark Zuckerberg, and three fact-checking groups. The lawsuit alleges that Facebook acted jointly or in agreement with federal government agencies or actors to deny Children’s Health Defense’s First Amendment speech and Fifth Amendment property rights.
The argument in the case is Facebook’s use of fact-checking warning labels and Facebook’s disabling of the fundraising feature on Children’s Health Defense’s Facebook page.
Facebook acknowledges that it coordinates its censorship campaign with the CDC and the WHO. Previous court decisions have upheld Facebook’s right to censor its pages. However, CHD argues that Facebook’s pervasive government collaborations make its censorship of CHD a First Amendment violation. The government’s role in Facebook’s censorship is more profound than its close coordination with CDC and WHO. According to Justia:
The facts around the lawsuit center around Congressman Adam Schiff’s threat to “introduce legislation to remove Facebook’s immunity under Section 230 of the Communications Decency Act” unless Facebook acted to “‘distinguish’ and suppress ‘vaccine misinformation’ and advertising.”
The lawsuit alleges that the Centers for Disease Control and Prevention collaborated with Facebook to “suppress vaccine safety speech with a ‘warning label’ and other notices that appear to flag disinformation.” Since September 2019, Facebook has applied a warning label to Children’s Health Defense’s Facebook page. This warning label states that “this page posts about vaccines” and links to the Centers for Disease Control and Prevention’s website.
On May 2, 2019, Facebook deactivated the fundraising feature on the group’s Facebook page for violating Facebook’s fundraising terms and conditions. Further, Facebook blocked the group’s ability to purchase online ads promoting the group.1
Attorneys Robert F. Kennedy, Jr., Roger Teich, and Mary Holland represent Children’s Health Defense in the litigation. According to CHD:
The lawsuit also challenges Facebook’s use of so-called “independent fact-checkers” – which, in truth, are neither independent nor fact-based – to create oppositional content on CHD’s page, literally superimposed over CHD’s original content, about open matters of scientific controversy.
To further silence CHD’s dissent against important government policies and its critique of Pharmaceutical products, Facebook deactivated CHD’s donate button, and uses a variety of deceptive technology (i.e. shadow banning) to minimize the reach and visibility of CHD’s content. In short, Facebook and the government colluded to silence CHD and its followers.
Such tactics are fundamentally at odds with the First Amendment, which guarantees the American public the benefits to democracy from free flow of information in the marketplace of ideas. It forbids the government from censoring private speech—particularly speech that criticizes government policies or officials. As Justice Holmes famously said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
The current COVID pandemic makes the need for open and fierce public debate on health issues more critical than ever.2
CHD argues that the First and Fifth Amendments, the Lanham Act, and RICO protect CHD against online wire-fraud, false disparagement, and knowingly false statements and asks the Court to declare Facebook’s actions unconstitutional and fraudulent, and award injunctive relief and damages.
The complaint requests $5 million or more in treble and punitive damages against Facebook, along with an injunction and declaratory judgment ordering Facebook to remove the warning labels.