In a ruling last Friday (in Children’s Health Defense v. Meta Platforms, Inc.), a Ninth Circuit panel addressed whether Robert F. Kennedy Jr.’s Children’s Health Defense organization (CHD) could pursue its First Amendment claims against Meta Platforms (formerly known as Facebook) and Mark Zuckerberg over Meta’s policy of censoring its Facebook posts that offer its warnings about the dangers of vaccines. The panel ruled unanimously that the district court properly dismissed CHD’s First Amendment claims for damages and for declaratory relief. But the panel divided on whether CHD could pursue its First Amendment claim for injunctive relief, with the majority ruling no and Judge Daniel P. Collins dissenting.
Judge Collins’s dissent (especially the portion running from pages 64 to 87 of the slip opinion) should be of interest to anyone exploring the issue of regulation of, and litigation against, social-media platforms. I offer this quick summary, which draws heavily (without cumbersome quotations and ellipses) from the language of the dissent:
1. Section 230 (added in 1996 to the Communications Act of 1934) confers a broad immunity on social-media platforms. Without that immunity, Meta could not practicably operate gigantic platforms such as Facebook and Instagram, as it would face crushing potential liability for defamatory content posted by users.
The immunity granted by section 230 is purely an act of congressional grace, because Meta has no plausible claim to a constitutional entitlement to full immunity for publishing or distributing constitutionally unprotected defamatory content.
In effect, by virtue of the special treatment afforded under section 230 to its massive platforms, Meta has been given the immunity of a conduit for the billions of postings that (in conduit-like fashion) it hosts, but that conduit-type immunity is coupled with what, in many respects, is functionally the editorial power of a publisher over everything on the platform.
Whenever Meta selectively censors the speech of third parties on its massive platforms, it is quite literally exercising a government-conferred special power over the speech of millions of others. The same simply cannot be said of newspapers making decisions about what stories to run or bookstores choosing what books to carry.
2. This key fact—that Meta is effectively exercising a distinctive government-conferred power over others’ speech when it decides whether and how to censor third-party speech on its vast platforms—makes a crucial difference in the state-action analysis.
The particular state-action test that is most relevant here is the one applied in Skinner v. Railway Labor Executives Ass’n (1989). Skinner establishes that, where a private party exercises a distinctive government-conferred immunized power that is specifically targeted at particular rights of third parties, and those particular rights are ones that are protected from governmental infringement by the Constitution, then that private party’s interactions with the Government as to how to exercise that power over those third parties’ constitutional rights implicate constitutional standards and must comply with those standards.
The same key factors discussed in Skinner are present or sufficiently alleged here. Meta’s authority to manage content on its mega-platforms is, in a very real sense, a government-conferred power, and that government-conferred power is specifically directed at third-party rights that are protected under the Constitution from encroachment by the Government. Moreover, Meta’s exercise of that power is clearly coercive from the point of view of the third parties whose speech is targeted.
The central question is whether Skinner’s last remaining factor—namely, governmental interest in, and direct benefit from, specific exercises of that power—is satisfied here.
Three distinct types of specific alleged interactions between Meta and the Government, taken together, strongly confirm the Government’s interest in, and benefit from, many of the particular challenged exercises of that power. First, CHD alleges that high-level Government officials made targeted requests, both publicly and privately, for Meta to take action specifically against the speech of CHD and Kennedy. Second, CHD alleges that Meta worked extensively with Executive Branch officials to adjust and refine its criteria and practices with respect to limiting or suppressing vaccine-related speech. Third, Meta went so far as to create an actual portal in which pre-selected Government officials could log in and then submit targeted requests for specific Covid-vaccine related posts to be taken down.
It is also important to note that all of these actions took place against a backdrop of continuous legislative threats, at multiple levels, to limit or abolish the section 230 immunity upon which Meta’s very ability to operate its mega-platforms critically depends.
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Judge Collins has already established himself as a judge that Supreme Court justices pay attention to, and it’s a safe bet that his dissent will receive careful attention. His analysis would, I think, bear not only on whether social-media platforms may be sued as state actors but also on whether states may regulate them consistent with the platforms’ First Amendment rights (an issue left unresolved by the Court’s very limited ruling in Moody v. NetChoice at the end of the Court’s recent Term).