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The 9th Circuit Court of Appeals in California on Tuesday held oral arguments in a case brought by Children’s Health Defense (CHD) against Meta Platforms Inc., also known as Facebook, its “independent fact-checkers” and Mark Zuckerberg.

CHD alleges Facebook entered into an agreement with the White House to censor an entire category of speech, de-platformed CHD Chairman Robert F. Kennedy Jr. and removed CHD’s “donate” button on Facebook, directing traffic instead to a third-party fact-checking organization that solicits donations.

CHD sued Facebook in August 2020 and filed an amended complaint in December 2020. The federal district court in the Northern District of California dismissed the case on June 29, 2021.

Judge Illston, in a 45-page decision, said CHD’s allegations — that Facebook is effectively a “state actor” on behalf of the federal government and engaged in false advertising and racketeering — failed to state legal claims.

CHD appealed, resulting in an argument held Tuesday with CHD attorneys Kennedy and Jed Rubenfeld.

Under U.S. Supreme Court precedent in Skinner v. Railway Lab. Execs. Ass’n, Rubenfeld argued on appeal the case should not have been dismissed by the lower court because CHD made sufficiently plausible allegations and did not need to prove its case — nor could it — without targeted factual discovery to establish the full scope of Facebook’s agreements to suppress “COVID misinformation.”

Rubenfeld made the following arguments to a three-judge panel:

  • The Biden administration and the Centers for Disease Control and Prevention (CDC) worked jointly to effect censorship of what they defined as “COVID misinformation” on Facebook’s platforms.
  • Their partnership objectives were specific enough to encompass Facebook’s warning labels imposed upon CHD’s posts.
  • Facebook removed CHD’s donation button and instead, directed readers to the CDC’s website or Facebook’s fact-checking organizations.
  • Kennedy’s Instagram account with 800,000 followers was de-platformed as a result of the agreement.
  • Federal actors and Facebook acknowledged “partnering” with one another to take down “misinformation,” as defined by CDC officials, the Biden administration and powerful congressional members.
  • Facebook was threatened with potential antitrust action and loss of liability protection under the Communications Decency Act Section 230 if the company did not participate in these actions.

The three-judge panel was composed of Judge Eric Miller, Judge Daniel Collins and Judge Edward Korman, a senior district court judge of the Eastern District of New York sitting by designation.

Judge Korman seemed skeptical of CHD’s assertion that congressional and administration pronouncements about Facebook’s Section 230 liability protection and monopoly status could be real threats.

Kennedy in turn argued that when the Speaker of the House, the White House and key chairs of powerful congressional committees act in concert to exert pressure to coerce Facebook to censor COVID-19 “misinformation” — “or else” — the threat is existential.

Kennedy argued that Congress had subpoenaed Zuckerberg to appear, that liability protection as a publisher is the “heart and soul” of Facebook’s business model and that the government’s threat was literally to “annihilate” the company should it not comply.

Judge Collins later summarized this government gambit neatly: “Nice immunity you have there, Facebook. It’d be a shame if anything happened to that.”

Facebook attorney Sonal Mehta argued Facebook’s censorship was the result of its independent judgment. She acknowledged that while Facebook may have a “common interest” with the government to suppress “misinformation” and even to coordinate with the government, CHD had not alleged enough to suggest “joint action.”

Mehta further argued that because Facebook has “neutral immunity” to publish or to refrain from publishing anything it wishes under Section 230, there was no state action.

The attorney for Poynter Institute, one of the fact-checkers, sought to distance it from the lawsuit, suggesting that Poynter fact-checked only one fact in the lawsuit, acting as an utterly independent “journalist,” and had been inappropriately “swept up” in the litigation.

Rubenfeld countered that Poynter was in fact an agent of Facebook and followed Facebook’s instructions to censor.

Judge Korman suggested CHD’s allegations were not sufficiently specific, to which Rubenfeld responded they were quite specific. Rubenfeld said then-White House Press Secretary Jen Psaki clearly referenced Kennedy among the so-called “Disinformation Dozen,” whom she pronounced should be de-platformed from Facebook and other social media platforms.

Rubenfeld further argued that precedent shows the required test for “joint action” is cumulative and a “totality of the circumstances” test.

He concluded CHD had met and surpassed the “plausibility” test to defeat a motion-to-dismiss threshold and is entitled to targeted discovery.

It is unknown when the court will render a decision.

On May 19 from 3 to 6 p.m. PT, there will be a rally in Menlo Park, California, to protest Facebook’s continuing censorship. Kennedy will speak at the rally, along with Kevin Jenkins, Naomi Wolf, Charlene Bollinger and others.