Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 1 of 45
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`CHILDREN'S HEALTH DEFENSE,
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`Plaintiff,
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`v.
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`FACEBOOK INC., et al.,
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`Defendants.
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`
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`Case No. 20-cv-05787-SI
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`ORDER GRANTING DEFENDANTS’
`MOTIONS TO DISMISS SECOND
`AMENDED COMPLAINT, DENYING
`PLAINTIFF’S MOTION TO
`SUPPLEMENT AND DENYING LEAVE
`TO AMEND
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`Re: Dkt. Nos. 68, 69, 75, 76, 103
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`
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`On May 5, 2021, the Court held a hearing on defendants’ motions to dismiss the second
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`amended complaint and plaintiff’s motion to supplement the complaint. After the hearing, plaintiff
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`filed a request for judicial notice and another motion to further supplement the second amended
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`complaint and for in camera inspection under the All Writs Act.
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`For the reasons set forth below, the Court GRANTS the motions to dismiss without leave to
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`amend, GRANTS the request for judicial notice, DENIES the motions to supplement the second
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`amended complaint as futile and DENIES the motion for an in camera inspection.
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` INTRODUCTION
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`On August 17, 2020, plaintiff Children’s Health Defense (“CHD”) filed this lawsuit against
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`defendants Facebook, Inc. (“Facebook”), Facebook CEO Mark Zuckerberg (“Zuckerberg”), The
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`Poynter Institute for Media Studies, Inc. (“Poynter”), and Science Feedback1 alleging four causes
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`of action: (1) violation of the First and Fifth Amendments pursuant to Bivens v. Six Unknown Named
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`1 Science Feedback is a French non-profit organization providing fact-checking services for
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`Facebook. Id. ¶ 20. It appears from the docket that Science Feedback has not yet been served.
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 2 of 45
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`Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); (2) false advertising in violation of
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`the Lanham Act, 15 U.S.C. § 1125(a); (3) violation of the Racketeer Influenced and Corrupt
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`Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c), 1964(c); and (4) declaratory relief.
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`CHD operates a social media page on Facebook’s platform. CHD posts articles and opinion
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`pieces about the harms of vaccines, including COVID-19 vaccines, as well as the dangers of
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`pesticides and wireless technologies such as 5G. CHD alleges that the United States government
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`— through Congressman Adam Schiff, the Centers for Disease Control (“CDC”), and the World
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`Health Organization (“WHO”), as the CDC’s “proxy” — has “privatized” the First Amendment by
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`“teaming up” with Facebook to censor CHD’s vaccine safety speech. Second Amended Compl.
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`(“SAC”) ¶ 1, Dkt. No. 65-1. CHD alleges that defendants have implemented this campaign by
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`“purporting to flag misinformation” by identifying certain information on CHD’s Facebook page as
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`“false” or “misleading” when that information is, in fact, “valid and truthful,” and through the
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`posting of a Facebook advisory comment that is affixed to CHD’s Facebook page which informs
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`visitors that they can visit CDC.gov to obtain information about vaccines. Id. CHD alleges that
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`Facebook, Zuckerberg, and the fact-checking organizations have engaged in a “smear campaign”
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`and “multiple acts of fraud and deception in furtherance of their aggressive and heavy-handed
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`campaign of censorship against Plaintiff’s Facebook page” with the purpose of “stigmatizing CHD
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`and its content regarding vaccines, and discouraging users from accessing this content.” Id. ¶ 4.
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`CHD alleges it has suffered monetary and reputational harm, and CHD seeks damages and
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`declaratory and injunctive relief, including an order directing Facebook to “remove its warning
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`labels and misclassification of all content on [CHD’s] Facebook page, and to desist from any further
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`warnings or classifications” and an order “requiring defendants to make a public retraction of their
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`false statements.” Id. Prayer for Relief.
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`BACKGROUND
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`The following facts are drawn from the SAC.2 Plaintiff CHD is a not-for-profit “child health
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`2 Plaintiff has twice amended the complaint in response to motions to dismiss filed by
`defendants and pursuant to stipulation. With each amendment, the complaint has grown in length,
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 3 of 45
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`protection and advocacy group” incorporated under the laws of the State of Georgia. Id. ¶¶ 14, 25.
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`CHD is an “advocate for complete candor as to the risks of environmental toxins, vaccines, 5G and
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`wireless networks, and the conflicts of interest that have compromised government oversight of
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`those products and services.” Id. ¶ 6. CHD operates the website, https://childrenshealthdefense.org,
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`where it publishes research articles and opinion pieces. Id. ¶ 15. CHD receives all of its financial
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`support from contributions, membership fees, and gross receipts from activities related to its tax-
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`exempt functions. Id. Robert F. Kennedy, Jr. founded and leads CHD. Id. ¶ 14.
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`Defendant Facebook, Inc. is a Delaware corporation with its principal place of business in
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`Menlo Park, California. Id. ¶ 16. Facebook operates an online social media and social networking
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`platform on which users like CHD can gather, advocate, and fundraise. Id. Facebook users’
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`utilization of Facebook is governed by Facebook’s Terms of Service that, if violated, may result in
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`the deletion of users’ Facebook account and pages. Id. ¶¶ 36-39. Facebook’s Terms of Service
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`“permit it to ‘detect misuse of [its] Products, harmful conduct towards others and situations where
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`[it] may be able to help support or protect [its] community.’ Facebook retains limited rights, e.g.,
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`‘offering help, removing content, blocking access to certain features, disabling an account or
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`contacting law enforcement[.] [and] shar[ing] data with other Facebook companies when [it]
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`detect[s] misuse or harmful conduct[.]’” Id. ¶ 37 (citing Terms ¶¶ 1, 3(2)(3)).
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`Defendant Mark Zuckerberg is a co-founder of Facebook and serves as Facebook’s
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`chairman, CEO, and controlling shareholder. Id. ¶ 17. In December 2015, Zuckerberg and his wife,
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`Dr. Priscilla Chan, co-founded the Chan Zuckerberg Initiative (“CZI”) to “donate” 99 percent of
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`their Facebook shares in an effort to “develop new drugs, diagnostic tests and vaccines.” Id. ¶ 281.
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`Plaintiff alleges that both Zuckerberg and Facebook have significant financial interests in the
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`vaccines programs that CHD warns against. Id. ¶¶ 274-91.
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`Defendant The Poynter Institute for Media Studies, Inc. (“Poynter”) is a Florida non-profit
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`organization. Id. ¶ 21. Poynter also operates a branded news fact-checking service, PolitiFact. Id.
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`if not substance. The original complaint was 95 pages; the first amended complaint was 148 pages;
`the second amended complaint is 151 pages.
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 4 of 45
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`PolitiFact contracts with social media companies, such as Facebook, to fact-check content shared
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`on social media platforms. Id. The SAC also alleges that International Fact-Checking Network
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`(“IFCN”), a unit of Poynter, certifies Facebook’s fact-checking “partners,” including Science
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`Feedback. Id. ¶¶ 105-06, 109.
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`On February 14, 2019, Congressman Adam Schiff, identifying himself as “a Member of
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`Congress who is deeply concerned about declining vaccination rates around the nation,” wrote a
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`public letter addressed to Zuckerberg. Id. ¶ 60. In that letter, Rep. Schiff “urge[] that Facebook
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`implement specific algorithms
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`to
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`identify, censor and remove all so-called ‘vaccine
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`misinformation.’” Id. Because the SAC repeatedly quotes portions of this letter, the Court has
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`reproduced the entirety of the letter here:
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`February 14, 2019
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`Mark Zuckerberg
`Chairman and Chief Executive Officer
`Facebook Inc.
`1 Hacker Way
`Menlo Park, CA 94025
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`Dear, Mr. Zuckerberg:
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`As more Americans use the Internet and social media platforms as their
`primary source of information, it is important that we explore the quality of the
`information that they receive, particularly on issues that directly impact the health
`and well-being of Americans, as well as the billions who use your site around the
`world. Accordingly, I am writing out of my concern that Facebook and Instagram
`are surfacing and recommending messages that discourage parents from vaccinating
`their children, a direct threat to public health, and reversing progress made in tackling
`vaccine-preventable diseases.
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`The scientific and medical communities are in overwhelming consensus that
`vaccines are both effective and safe. There is no evidence to suggest that vaccines
`cause life-threatening or disabling diseases, and the dissemination of unfounded and
`debunked theories about the dangers of vaccinations pose a great risk to public
`health. In fact, the World Health Organization listed vaccine hesitancy – the
`reluctance or refusal to vaccinate despite the availability of vaccines – as one of the
`top threats to global health in 2019. In a dramatic demonstration of the dangers,
`Washington state declared a public health emergency due to a measles epidemic in
`Clark County, signaling the resurgence of a potentially fatal disease that was
`effectively eliminated from the United States decades ago by vaccines.
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`There is strong evidence to suggest that at least part of the source of this trend
`is the degree to which medically inaccurate information about vaccines surface on
`the websites where many Americans get their information, among them Facebook
`and Instagram. As I have discussed with you in other contexts, and as you have
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 5 of 45
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`acknowledged, the algorithms which power these services are not designed to
`distinguish quality information from misinformation or misleading information, and
`the consequences of that are particularly troubling for public health issues. I
`acknowledge that it may not always be a simple matter to determine when
`information is medically accurate, nor do we ask that your platform engage in the
`practice of medicine, but if a concerned parent consistently sees information in their
`Newsfeed that casts doubt on the safety or efficacy of vaccines, it could cause them
`to disregard the advice of their children’s physicians and public health experts and
`decline to follow the recommended vaccination schedule. Repetition of information,
`even if false, can often be mistaken for accuracy, and exposure to anti-vaccine
`content via social media may negatively shape user attitudes towards vaccination.
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`Additionally, even parents and guardians who seek out accurate information
`about vaccines could unwittingly reach pages and videos with misinformation. A
`report by the Guardian found that on both Facebook and YouTube, suggested
`searches related to vaccines often led users to pages or groups providing medically
`and scientifically inaccurate information. Finally, I am concerned by the report that
`Facebook accepts paid advertising that contains deliberate misinformation about
`vaccines.
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`As a Member of Congress who is deeply concerned about declining
`vaccination rates around the nation, I am requesting additional information on the
`steps that you currently take to provide medically accurate information on
`vaccinations to your users, and to encourage you to consider additional steps you can
`take to address this growing problem. I was pleased to see YouTube’s recent
`announcement that it will no longer recommend videos that violate its community
`guidelines, such as conspiracy theories or medically inaccurate videos, and
`encourage further action to be taken related to vaccine misinformation.
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`Specifically, I request that you provide answers on the following questions:
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`•Does content which provides medically inaccurate information about
`vaccines violate your terms of service?
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`•What action(s) do you currently take to address misinformation related to
`vaccines on your platforms? Are you considering or taking additional actions?
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`•Do you accept paid advertising from anti-vaccine activists and groups on
`your platforms? How much has been spent in the past year on advertising on this
`topic?
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`•What steps do you currently take to prevent anti-vaccine videos or
`information from being recommended to users, either algorithmically or as a
`suggested search result?
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`I appreciate your timely response to these questions and encourage you to
`consider what additional steps you can take to address this growing problem. As
`more Americans rely on your services as their primary source of information, it is
`vital that you take that responsibility with the seriousness it requires, and nowhere
`more so than in matters of public health and children’s health. Thank you for your
`attention to this important topic.
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`Sincerely,
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`Adam B. Schiff/Member of Congress
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 6 of 45
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`Id. ¶¶ 60, 62-63; https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-
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`facebook- regarding-anti-vaccine-misinformation.
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`The SAC alleges,
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`The term “vaccine misinformation” (as Rep. Schiff defined it, and as Facebook
`implemented it) is a euphemism for any expression of skepticism toward government
`and industry pronouncements about vaccine safety and efficacy, or of reasons why
`parents or their children’s physicians might decline to follow the CDC’s full
`“recommended vaccine schedule,” regardless of whether those expressions are true
`or not. Thus, Rep. Schiff provided a substantive standard – deference to CDC/WHO
`pronouncements conclusively presumed to be “authoritative” – by which Facebook
`should identify and censor vaccine “misinformation” on its platform. The term
`“vaccine misinformation” does not, for example, include erroneous, misinformed or
`fraudulent statements made by pharmaceutical companies, or the CDC, to promote
`vaccines.
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`Id. ¶ 61.
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`Rep. Schiff subsequently made public statements that “if the social media companies can’t
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`exercise a proper standard of care when it comes to a whole variety of fraudulent or illicit content,
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`then we have to think about whether [Section 230] immunity still makes sense.” Id. ¶ 64.
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`In March 2019, Facebook officially announced it would “reduce the ranking of groups and
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`Pages that spread misinformation about vaccinations in News Feed and Search” and “remove access
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`to [] fundraising tools for Pages that spread misinformation about vaccinations.” Id. ¶ 68. On
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`September 4, 2019, the WHO Director-General issued a statement “welcom[ing] the commitment
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`by Facebook to ensure that users find facts about vaccines across Instagram, Facebook Search,
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`Groups, Pages and forums where people seek out information and advice.”3 Id. ¶ 69.
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`In 2020, Zuckerberg announced that Facebook would donate $10 million to the CDC
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`Foundation’s Combat Coronavirus Fundraiser, and $10 million to the WHO. Id. ¶ 46. As such,
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`Facebook is listed as a “partner” on the CDC Foundation’s website under the “partners.” Id. ¶ 48.
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`3 The statement further read:
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`Facebook will direct millions of its users to WHO’s accurate and reliable
`vaccine information in several languages, to ensure that vital health messages reach
`people who need them the most. The World Health Organization and Facebook have
`been in discussions for several months to ensure people can access authoritative
`information on vaccines and reduce the spread of inaccuracies on Facebook and
`Instagram.
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`Id. ¶ 69.
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 7 of 45
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`The CDC specifies its work with “social media partners” in its “Vaccine With Confidence” initiative:
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`Id. ¶ 49.
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`On or about November 2017, CHD agreed to Facebook’s Terms of Service to create its
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`Facebook page. Id. ¶ 33. CHD has since actively maintained its Facebook page. Id. On a daily (or
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`more frequent) basis, CHD uploads articles and video posts on its Facebook page to “expose truths”
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`about the severe health dangers of certain vaccines and technologies. Id. ¶ 26. Before publication,
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`CHD conducts an internal fact-check to “ensure that every article cites sources for every fact it
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`asserts.” Id. ¶ 30. CHD currently has a Facebook community of 122,830 followers. Id. ¶ 33.
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`Beginning on or around January 15, 2019, Facebook began labeling certain content posted
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`to CHD’s Facebook page as “false,” out of date, or unreliable. Id. ¶¶ 78-79, 115-18, 126, 131, 141,
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`157. The labels indicate that these determinations are reached by “independent,” “third-party” “fact-
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`checkers” who review potentially misleading information and rate it as false, altered, partly false,
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`missing context, satire, or true. Id. ¶¶ 78, 217-218.
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`The SAC contains some examples of these labels:
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 9 of 45
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`On or around May 1, 2019, Facebook permanently disabled the “dispute” function on CHD’s
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`account, barring CHD from challenging any actions taken by Facebook. Id. ¶ 200. Facebook also
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`began to “demote and/or ban content (‘shadow-ban’) that CHD posted to its Facebook page” using
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`its “patent on social media shadowbanning.” Id. ¶ 201.
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`On or around May 2, 2019, Facebook deactivated the “donate” button on CHD’s page and
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`barred CHD from buying new Facebook advertisements. Id. ¶¶ 198-99. From January 2019 to May
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`2019, CHD generated $41,241 in user donations through its Facebook page. Id. ¶ 223. After
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`Facebook’s deactivation of CHD’s donate function, CHD has not received any further donation
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`revenue through Facebook. Id.
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`On September 4, 2019, after repeated violations, Facebook acted against CHD at the account
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`level, posting a Warning Label at the top of CHD’s Facebook page. Id. ¶ 81. The warning label,
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`which remains on CHD’s Facebook today, states, “This Page posts about vaccines. When it comes
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`to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC)
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`has information that can help answer questions you may have about vaccines. Go to CDC.gov.” Id.
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`Poynter’s inclusion in this lawsuit largely stems from one fact-check of content appearing
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 10 of 45
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`on CHD’s Facebook page.4 On April 16, 2020, CHD shared on its Facebook page an article written
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`by Collective Evolution, a third-party website. Id. ¶ 151. PolitiFact labeled the title of Collective
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`Evolution’s article as “false,” noting that the title is “ambiguous and misleading.” Id. Collective
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`Evolution accepted PolitiFact’s conclusion, correcting the article’s title from “New Study: The Flu
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`Vaccine is ‘Significantly Associated’ With An Increased Risk of Coronavirus” to “Study: The Flu
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`Vaccine Is ‘Significantly Associated’ With An Increased Risk of Coronaviruses—Not COVID 19.”
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`Dkt. No. 65-4 at 60 (emphasis added).
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`LEGAL STANDARD
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`A complaint must contain “a short and plain statement of the claim showing that the pleader
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`is entitled to relief,” and a complaint that fails to do so is subject to dismissal pursuant to Rule
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`12(b)(6). Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
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`allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
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`550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts
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`that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of
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`specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative
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`level.” Twombly, 550 U.S. at 555, 570. “A pleading that offers ‘labels and conclusions’ or ‘a
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`formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678
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`(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’
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`devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “While legal
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`conclusions can provide the framework of a complaint, they must be supported by factual
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`allegations.” Id. at 679.
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`In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the
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`complaint and draw all reasonable inferences in favor of the non-moving party. See Usher v. City
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`4 CHD’s opposition to Poynter’s motion to dismiss states that Facebook added a Politifact
`fact-check to a January 21, 2021 CHD post. CHD’s Opp’n to Poynter’s Mtn. at 4 n.4 (Dkt. No. 70).
`However, CHD’s motions to supplement the SAC do not address the January 21, 2021 fact-check.
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 11 of 45
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`of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as
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`true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
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`inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
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`If a court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth
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`Circuit has repeatedly held that “a district court should grant leave to amend even if no request to
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`amend the pleading was made, unless it determines that the pleading could not possibly be cured by
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`the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and
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`internal quotation marks omitted).
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`I.
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`DISCUSSION
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`First Cause of Action: Violations of First and Fifth Amendments Pursuant to Bivens
`v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
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`Plaintiff alleges defendants have violated its First and Fifth Amendment rights and seeks
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`damages for those violations pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
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`Narcotics, 403 U.S. 388, 389, 395-96 (1971). In Bivens, the Supreme Court recognized an implied
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`right of action for damages against federal officers for violating an individual’s rights under the
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`Fourth Amendment to be free from unreasonable searches and seizures. “In making this finding,
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`the United States Supreme Court ‘created a remedy for violations of constitutional rights committed
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`by federal officials acting in their individual capacities.’” Life Savers Concepts Ass’n of California
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`v. Wynar, 387 F. Supp. 3d 989, 997 (N.D. Cal. 2019) (quoting Consejo de Desarrollo Economico
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`de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)).
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`The SAC alleges that “the corporate and individual defendants have acted in concert with
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`Rep. Schiff, federal officials at the CDC and the CDC Foundation, and under the CDC’s express
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`consent, the WHO, a United Nations specialized agency, to deprive Plaintiff of its constitutional
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`free expression rights.” SAC ¶ 308. The SAC alleges that “Facebook willfully participated in joint
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`action with Rep. Schiff, CDC and CDC Foundation, and/or WHO officials or their agents to enforce
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`CDC and WHO policies through Facebook’s signature algorithms and machine learning to define,
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`identify, label as ‘false news’ and/or censor Plaintiff’s speech with respect to vaccine-related
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 12 of 45
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`speech.” Id. ¶ 309.5 The SAC alleges that “Facebook and the other defendants violated Plaintiff’s
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`First Amendment rights by labeling CHD’s content ‘False Information,’ and taking other steps
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`effectively to censor or block content from users. . . . Facebook took these actions against Plaintiff
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`in an effort to silence and deter its free speech solely on account of their viewpoint.” Id. ¶ 318.
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`CHD also asserts a First Amendment retaliation claim, alleging that after it filed this lawsuit,
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`Facebook notified CHD that it “would modify the parties’ contractual term of service § 3.2, effective
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`October 1, 2020, to read: ‘We also can remove or restrict access to your content, services, or
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`information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal
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`or regulatory impacts to Facebook.’” Id. ¶ 324.
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`CHD alleges that defendants violated the Fifth Amendment by permanently disabling the
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`“donate” button on CHD’s Facebook page and by refusing “to carry CHD’s advertising of its
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`fundraising campaigns.” Id. ¶ 319.6 CHD alleges that “Defendants’ actions amount to an unlawful
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`deprivation or ‘taking’ of Plaintiff’s property interests in its own fundraising functions. . . . without
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`just compensation or due process.” Id. ¶¶ 320, 322.
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`Defendants move to dismiss CHD’s Bivens claims on several grounds. Facebook and
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`Poynter contend that private entities cannot be held liable under Bivens. Defendants also contend
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`that there are no allegations supporting a plausible inference of federal action by any defendant, and
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`that allowing CHD’s Bivens claims to proceed would run afoul of the Supreme Court’s admonition
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`that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” Ziglar v. Abbasi, 137 S.
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`Ct. 1843, 1857 (2017), because no court has recognized a Bivens damages remedy against a social
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`media company, a corporate CEO, or fact-checking organizations for violations of the First or Fifth
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`Amendments.
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`As set forth below, the Court concludes that CHD’s claims against Facebook and Poynter
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`5 Although the SAC contains references to CHD’s speech about 5G technology, the
`gravamen of CHD’s complaint relates defendants’ alleged censorship of CHD’s vaccine-related
`speech.
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` As Poynter notes, although the SAC alleges that “defendants” engaged in various actions,
`most of the allegations, such as the disabling of the “donate” button, relate to acts taken by Facebook,
`not Poynter.
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 13 of 45
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`are foreclosed as a matter of law because a Bivens action may only be brought against individual
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`federal actors and cannot be brought against private entities such as corporations or nonprofits. In
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`addition, the SAC fails to allege that Zuckerberg engaged in federal action, a necessary element of
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`a Bivens claim. As such, the Court finds it unnecessary to address the parties’ arguments about the
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`expansion of Bivens.
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`A.
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`Private Entities Such as Facebook and Poynter May Not Be Sued Under
`Bivens
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`In Correctional Services Corporation v. Malesko, 534 U.S. 61, 66 (2001), the Supreme Court
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`held that a plaintiff could not bring a Bivens action against a private corporation operating a halfway
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`house under contract with the Bureau of Prisons. The Court stated that “[t]he purpose of Bivens is
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`to deter individual federal officers from committing constitutional violations,” and that “the threat
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`of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens.”
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`Id. at 71; see also Minneci v. Pollard, 565 U.S. 118, 127 (2012) (explaining that the holding in
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`Malesko was based in large part on “the nature of the defendant, i.e., a corporate employer rather
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`than an individual employee”); see also Reid v. United States, 825 F. App’x 442, 444 (9th Cir. 2020)
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`(unpublished) (“A claim for damages based on individualized mistreatment by rank-and-file federal
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`officers is . . . what Bivens was meant to address.”).
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`CHD contends that “Malesko doesn’t apply” “because no other law permits suit against
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`Facebook [or Poynter] for its past acts of viewpoint discrimination against CHD.” CHD’s Opp’n to
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`Facebook’s Mtn. at 9 (Dkt. No. 71); CHD’s Opp’n to Poynter’s Mtn. at 11 (Dkt. No. 70). However,
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`CHD does not cite any post-Malesko cases in which courts have permitted Bivens actions against
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`private entities. To the contrary, after Malesko courts have consistently held that plaintiffs may not
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`pursue Bivens actions against private entities. See, e.g., Agyeman v. Corr. Corp. of Am., 390 F.3d
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`1101, 1103 (9th Cir. 2004) (“[T]o the extent that Agyeman sought to hold Corrections Corporation
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`itself liable, the case could not be brought under Bivens . . . since Corrections Corporation is
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`a private corporation.”); Riggio v. Bank of America Nat’l Trust & Saving Ass’n, 31 Fed. App’x. 505,
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`505-06 (9th Cir. 2002) (unpublished) (“There is no private right of action for damages against
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`Case 3:20-cv-05787-SI Document 107 Filed 06/29/21 Page 14 of 45
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`private entities that are alleged to have engaged in constitutional deprivations, even if they are acting
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`under color of federal law.”); Rahieh v. Paragon Systems, Inc., 316 F. Supp. 3d 1103, 1107 (N.D.
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`Cal. 2018) (citing Malesko and dismissing Bivens claim against private corporation that contracts
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`with federal government to provide security for offices); Bender v. General Services Admin., 539 F.
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`Supp. 2d 702, 708 (S.D.N.Y. 2008) (same).
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`Accordingly, the Court concludes that as a matter of law, CHD cannot bring a Bivens action
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`against Facebook and Poynter because they are private entities.
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`B.
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`Bivens Allegations against Zuckerberg
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`The Court now turns to CHD’s Bivens claims against Zuckerberg. As the Ninth Circuit has
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`recognized, the Supreme Court has yet to “completely foreclose applying Bivens to private actors.”
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`Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018). “[T]he private status of [a] defendant
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`will not serve to defeat a Bivens claim, provided that the defendant engaged in federal action.”
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`Schowengerdt v. Gen. Dynamics Corp., 823 F.2d 1328, 1337-38 (9th Cir. 1987). However, “[w]e
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`start with the presumption that conduct by private actors is not state action.” Florer v. Congregation
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`Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011).
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`The Ninth Circuit applie