Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 1 of 20
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`JOHN STOSSEL,
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`Plaintiff,
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`v.
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`META PLATFORMS, INC., et al.,
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`Defendants.
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`Case No. 21-cv-07385-VKD
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`ORDER GRANTING DEFENDANTS’
`MOTIONS TO DISMISS WITH
`PREJUDICE; GRANTING
`DEFENDANTS’ ANTI-SLAPP
`MOTIONS
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`Re: Dkt. Nos. 27, 50
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`
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`Plaintiff John Stossel asserts a single claim for defamation against defendants Meta
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`Platforms, Inc. (“Meta”),1 Science Feedback, and Climate Feedback. Dkt. No. 1. Defendants
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`move to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
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`Rules of Civil Procedure. Dkt. No. 27 at 1, 7, 12–19; Dkt. No. 50 at 2, 11-25. Meta also moves to
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`dismiss the complaint on the ground that Mr. Stossel’s defamation claim against it is barred by the
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`Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1). Dkt. No. 27 at 1, 7-12. Finally,
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`both defendants specially move to strike the complaint pursuant to California’s anti-Strategic
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`Litigation Against Public Participation (“anti-SLAPP”) statute, California Code of Civil Procedure
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`§ 425.16. Id. at 1, 19–22; Dkt. No. 50 at 1, 11-25.
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`The Court has diversity jurisdiction over this action under 28 U.S.C. § 1332. See Dkt. No.
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`1 ¶¶ 19-21 (citizenship of parties), ¶ 15 (amount in controversy). All named parties have
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`consented to magistrate judge jurisdiction. Dkt. Nos. 10, 24, 45.
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`1 The complaint names Facebook, Inc. as a defendant. Facebook changed its name to Meta
`Platforms, Inc. effective October 28, 2021. Dkt. No. 32.
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 2 of 20
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`Having considered the parties’ briefs and arguments made at the hearing on defendants’
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`motions, the Court grants defendants’ motions to dismiss on the ground that Mr. Stossel fails to
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`state a claim for defamation. In addition, the Court grants defendants’ anti-SLAPP motions to
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`strike. Because any amendment would be futile, the Court dismisses the claim against each
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`defendant with prejudice. The Court does not reach Meta’s argument that Section 230(c)(1) of the
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`CDA bars Mr. Stossel’s claim.
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`I.
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`BACKGROUND
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`For purposes of this order, and except as otherwise noted, the following facts are drawn
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`from the allegations of the complaint and from materials incorporated by reference in the
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`complaint.2
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`A.
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`The Parties
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`Plaintiff John Stossel is a career journalist and reporter who resides in New York. Dkt.
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`No. 1 ¶¶ 19, 23. Currently, Mr. Stossel publishes short weekly news videos on social media,
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`primarily on the Facebook platform, where he has over one million followers. Id ¶ 23.
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`Defendant Meta is a Delaware corporation headquartered in Menlo Park, California. Id.
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`¶ 20. Meta provides an online social networking service called “Facebook.” Id. ¶ 24. Meta
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`allows users to view and post content on the Facebook platform. Id. ¶ 27. Mr. Stossel alleges, on
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`information and belief, that “there are currently 2.8 billion individuals worldwide who engage in
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`speech on Facebook’s platform.” Id. ¶ 24.
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`Defendant Science Feedback is a French non-profit organization that describes itself as a
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`“worldwide network of scientists sorting fact from fiction in science based media coverage.” Id.
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`¶ 25. Mr. Stossel alleges that Science Feedback is the “parent organization” of several “fact-
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`checking websites,” including Climate Feedback, and that Climate Feedback is a subsidiary of
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`Science Feedback. Id. ¶¶ 25, 26. However, Science Feedback asserts that Climate Feedback “is
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`2 The Court does not take judicial notice of Mr. Stossel’s Facebook page (Dkt. No. 50-4) or
`Climate Feedback’s description of its review process (Dkt. No. 50-7). These materials are not
`clearly referenced or quoted in the complaint. Khoja v. Orexigen Therapeutics, 899 F.3d 988,
`1005 (9th Cir. 2018) (incorporation-by-reference doctrine does not apply to a document not clearly
`referenced or quoted in the complaint).
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 3 of 20
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`not a separate legal entity, but rather a website run by Science Feedback.” Dkt. No. 50 at 11 n.4;
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`see also Dkt. No. 43 (Science Feedback’s Rule 7.1 Corporate Disclosure Statement). Mr. Stossel
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`does not dispute these assertions. Thus, for purposes of this order, the Court refers to Science
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`Feedback when discussing the defendant fact-checking organization and to Climate Feedback
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`when discussing the website run by Science Feedback.
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`B. Meta’s Fact-Checking Program
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`Meta states on its Facebook website that it is “commit[ed] to fighting the spread of
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`misinformation on Facebook,” representing that the company “work[s] with independent, third-
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`party fact-checking organizations” to achieve this objective. Dkt. No. 1 ¶ 29. The “About Fact-
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`Checking on Facebook” page3 of the website states that “[f]act-checkers will review content,
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`check its facts, and rate its accuracy.” Id. ¶ 32. That page explains that “[t]he focus of this fact-
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`checking program is identifying and addressing viral misinformation, particularly clear hoaxes that
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`have no basis in fact.” Dkt. No. 27-3 at ECF 2. But “[f]act-checking partners do not prioritize
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`claims that are inconsequential or consist of minor inaccuracies.” Id.
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`The Facebook website also includes a “Rating Options for Fact-Checkers” page,4 which
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`identifies six ratings that fact-checkers may use to rate content: “False,” “Altered,” “Partly False,”
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`“Missing Context,” “Satire,” and “True.” Id. ¶ 33; Dkt. No. 27-5. The website provides
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`guidelines explaining what each label means and gives examples of content to which each rating
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`could apply. According to the website, “[w]hile Facebook is responsible for setting these rating
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`guidelines, it is ultimately the fact-checkers who independently review and rate content—
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`Facebook does not make changes to ratings.” Dkt. No. 27-5 at ECF 2.
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`The “key steps” of the fact-checking program are described as follows:
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`3 Meta argues that the complaint incorporates this webpage by reference. Dkt. No. 27 at 3 n.2.
`Mr. Stossel does not object to the Court’s consideration of the contents of this webpage for
`purposes of deciding defendants’ motions. See, e.g., Dkt. No. 49 at 5-6 (quoting statements from
`webpage).
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` Meta argues that the complaint incorporates this webpage by reference. Dkt. No. 27 at 3 n.4.
`Mr. Stossel does not object to the Court’s consideration of the contents of this webpage for
`purposes of deciding defendants’ motions. See, e.g., Dkt. No. 49 at 2, 5 (quoting and citing
`statements from webpage).
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 4 of 20
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`• Identify false news: We identify potential misinformation using
`signals, like feedback from people on Facebook, and surface the
`content to fact-checkers. Fact-checkers may also identify
`content to review on their own.
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`• Review content: Fact-checkers will review content, check its
`facts, and rate its accuracy. This happens independently from
`Facebook, and may include calling sources, consulting public
`data, authenticating videos and images, and more.
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`• Clearly label misinformation and inform users about it: We
`apply a label to content that’s been reviewed by fact-checking
`partners, so people can read additional context. We also notify
`people before they try to share this content, and people who have
`shared it in the past.
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`• Ensure fewer people see misinformation: Once a fact-checker
`rates a piece of content as False, Altered or Partly False, it will
`appear lower in News Feed, be filtered out of Explore on
`Instagram, and be featured less prominently in Feed and Stories.
`This significantly reduces the number of people who see it. We
`also reject ads with content that has been rated by fact-checkers.
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`• Take action against repeat offenders: Pages and websites that
`repeatedly share misinformation rated False or Altered will have
`some restrictions, including having their distribution reduced.
`They may also have their ability to monetize and advertise
`removed, and their ability to register as a news Page removed for
`a given time period.
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`Dkt. No. 27-3 at ECF 2-3; Dkt. No. 1 ¶¶ 34-36.
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`C. Mr. Stossel’s “Fire Video”
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`On September 22, 2020, Mr. Stossel published a short news video entitled “Government
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`Fueled Fires” (the “Fire Video”) on his Facebook page. Dkt. No. 1 ¶ 37; Dkt. No. 28.5 The video
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`includes a discussion of the massive forest fires in California in 2020. Dkt. No. 1 ¶ 38. In the
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`video, Mr. Stossel acknowledges that climate change plays in role in forest fires, id. ¶ 40, but he
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`says the video “explore[s] a scientific hypothesis advanced by [environmentalist Michael]
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`Shellenberger and others—namely, that while climate change undoubtedly contributes to forest
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`fires, it was not the primary cause of the 2020 California fires,” id. ¶ 42. In the video, Mr. Stossel
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`5 Meta argues that the complaint incorporates the video by reference. Dkt. No. 27 at 4 n.5. Meta
`asks the Court to consider the video itself and a transcript of the audio. See id.; Dkt. No. 28. Mr.
`Stossel does not object to the Court’s consideration of the video or the transcript for purposes of
`deciding defendants’ motions. See generally Dkt. Nos. 49, 54.
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 5 of 20
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`interviews Mr. Shellenberger, who opines that climate change was not the primary reason for the
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`2020 forest fires. Id. ¶ 43. Mr. Stossel’s final statement in the video is: “Bad policies were the
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`biggest cause of this year’s fires, not the slightly warmer climate. And while climate change is a
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`problem, Shellenberger’s new book explains, it’s not an apocalypse.” Id. ¶ 44.
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`Shortly after Mr. Stossel published the Fire Video, Facebook placed a small rectangular
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`label over the top part of the video. Id. ¶ 45. The label has the text “Missing Context” and below,
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`in smaller font, the sentence: “Independent fact-checkers say the information could mislead
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`people.” Id. Beneath this sentence appears a button with the words “See Why.” Id. A screenshot
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`of the video and label, as reproduced in the complaint, appears below:
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`Id. If a viewer clicks on the “See Why” button, the following text box appears:
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 6 of 20
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`Id. ¶ 46. The text box includes the statement “[i]ndependent fact-checkers say this information is
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`missing context and could mislead people.” Id. It also includes a blue button with the words
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`“Fact Check.”
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`If a viewer clicks on the “Fact Check” button, she is directed to an article (the “Fires
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`Article”) on the Climate Feedback website. The Fires Article posits the following “claim”:
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`“Forest fires are caused by poor management. Not by climate change.” Next to the “claim” is a
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`“verdict,” which indicates that the claim is “misleading.” Id. ¶ 47. Additional explanation
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`regarding the “claim” and the “verdict” appears in the Fire Article on Climate Feedback’s
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`website.6 See id. ¶¶ 47-50; Dkt. No. 28-1. An image from the Climate Feedback website, as
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`reproduced in the complaint, appears below:
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`Dkt. No. 1 ¶ 47.
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`On September 25, 2020, Mr. Stossel received a notification from Facebook regarding the
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`Fire Video, advising that “[c]ontent is being seen by fewer people because it was rated Missing
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`Context by an independent fact-checker.” Id. ¶ 55.
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`6 Meta argues that the complaint incorporates Climate Feedback’s “Fires Article” by reference.
`Dkt. No. 27 at 5 n.6. Mr. Stossel does not object to the Court’s consideration of the article for
`purposes of deciding defendants’ motions. See generally Dkt. Nos. 49, 54.
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 7 of 20
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`D. Mr. Stossel’s “Alarmism Video”
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`On April 17, 2021, Mr. Stossel republished on his Facebook page a video entitled “Are We
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`Doomed?” (the “Alarmism Video”) that he had published previously in November 2019. Dkt. No.
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`1 ¶ 78; Dkt. No. 28-2.7 According to Mr. Stossel, the video “question[s] claims made by those
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`[whom] Stossel refers to as ‘environmental alarmists.’” Id. In the video, Mr. Stossel includes
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`clips from the video of a panel discussion he moderated. Id. ¶ 79. The panel discussion focuses
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`on climate change. Although Mr. Stossel set up the discussion as a debate, he complains in the
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`video that “climate alarmists never agree to debate” and that “the many individuals invited as
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`counterpoints in the debate had refused to attend.” Id. ¶ 80; Dkt. No. 28-2 at 3:23-24. According
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`to Mr. Stossel, the video shows that the panel “acknowledged rising sea levels and discussed
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`whether humans can adapt to the problems they pose; discussed data that undermine the claim that
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`hurricanes are getting stronger; and discussed how carbon dioxide can be simultaneously a
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`greenhouse gas and a beneficial fuel for crops.” Dkt. No. 1 ¶ 79.
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`Shortly after the April 2021 republication of the Alarmism Video, Facebook placed a small
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`rectangular label over the top part of the video. Id. ¶ 83. The label has the text “Partly False
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`Information” and below, in smaller font, the sentence: “Checked by independent fact-checkers.”
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`Id. Beneath this sentence appears a button with the words “See Why.” Id. A screenshot of the
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`7 Meta argues that the complaint incorporates the video by reference. Dkt. No. 27 at 5 n.7. Meta
`asks the Court to consider the video itself and a transcript of the audio. See id.; Dkt. No. 28-2.
`Mr. Stossel does not object to the Court’s consideration of the video or the transcript for purposes
`of deciding defendants’ motions. See generally Dkt. Nos. 49, 54.
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 8 of 20
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`video and label, as reproduced in the complaint, appears below:
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`Id. If a viewer clicks on the “See Why” button, the following text box appears:
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`Id. ¶ 84. The text box includes the statement “[i]ndependent fact-checkers say this information
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`has some factual inaccuracies.” Id. It also includes a blue button with the words “Fact Check.”
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 9 of 20
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`If a viewer clicks on the “Fact Check” button, she is directed to an article entitled “Video
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`promoted by John Stossel for Earth Day relies on incorrect and misleading claims about climate
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`change” (“Alarmism Article”).8 Id. ¶ 85; Dkt. No. 28-3. An image from the Climate Feedback
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`website, as reproduced in the complaint, appears below:
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`Dkt. No. 1 ¶ 85.
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`E.
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`Alleged Harm to Mr. Stossel’s Reputation and Other Interests
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`Mr. Stossel alleges that defendants’ actions have caused damage to him “in the form of
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`reduced distribution of his reporting, reduced viewership, and reduced profits from advertising
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`revenue from viewership.” Id. ¶ 103. Specifically, Mr. Stossel alleges that “while the Fire Video
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`had nearly 1.2 million views when it was originally posted, it received almost no views following
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`Defendants’ defamation of the video in September 2020. This resulted in reduced advertising
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`revenue on that content, which revenue Stossel would otherwise have received.” Id. ¶ 104.
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`Further, Mr. Stossel alleges that pursuant to Facebook’s policy on flagged content, he “was
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`essentially prohibited from re-posting the Fire video . . . which would have resulted in another
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`approximately 1.2 million views and the associated ad revenue from those views.” Id. Similarly,
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`8 Meta argues that the complaint incorporates Climate Feedback’s “Alarmism Article” by
`reference. Dkt. No. 27 at 6 n.8. Mr. Stossel does not object to the Court’s consideration of the
`article for purposes of deciding defendants’ motions. See generally Dkt. Nos. 49, 54.
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 10 of 20
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`Mr. Stossel alleges that “immediately after Defendants affixed their false label on the Alarmism
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`Video in April 2021, there was a dramatic drop in both views of that video and all Stossel’s other
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`videos, and of the associated advertising revenue, which reduced by nearly half, from
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`approximately $10,000 a month to approximately $5,5000 a month, and which Stossel otherwise
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`would have received.” Id. ¶ 105. Mr. Stossel also alleges that his professional reputation has been
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`“significantly and irreparably damaged” by “the false labels and statements that Defendants
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`affixed to his work.” Id. ¶ 106.
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`II.
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`LEGAL STANDARD
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`A.
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`Rule 12(b)(6) Motion to Dismiss
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation
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`Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d
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`729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts
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`as true all well-pled factual allegations and construes them in the light most favorable to the
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`plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a
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`complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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`facially plausible when it “allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged.” Id.
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`A court generally may not consider any material beyond the pleadings when ruling on a
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`Rule 12(b)(6) motion. If matters outside the pleadings are considered, “the motion must be treated
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`as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). However, documents
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`appended to the complaint, incorporated by reference in the complaint, or which properly are the
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`subject of judicial notice may be considered along with the complaint when deciding a Rule
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`12(b)(6) motion. Khoja v. Orexigen Therapeutics, 889 F.3d 988, 998 (9th Cir. 2018). A
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`document not attached to a complaint “may be incorporated by reference into a complaint if the
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`plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s
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`claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Courts “need not accept as
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`true allegations contradicting documents that are referenced in the complaint.” Lazy Y Ranch Ltd.
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`v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). Nor is a court required to accept as true allegations
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`that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. Id.
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`(citation omitted).
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`B.
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`Anti-SLAPP Motion to Strike
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`California’s anti-SLAPP statute “was enacted to allow early dismissal of meritless first
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`amendment cases aimed at chilling expression through costly, time-consuming litigation.”
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`Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir. 2001). The statute provides that “[a]
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`cause of action against a person arising from any act of that person in furtherance of the person’s
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`First Amendment right of petition or free speech in connection with a public issue shall be subject
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`to a special motion to strike, unless the court determines that the plaintiff has established that there
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`is a probability that the plaintiff will prevail on the claim.” Cal. C.C.P. § 425.16(b)(1). A
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`defendant in federal court may bring an anti-SLAPP motion with respect to California state law
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`claims asserted under the court’s diversity jurisdiction. Hilton v. Hallmark Cards, 599 F.3d 894,
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`900 n.2 (9th Cir. 2010). When an anti-SLAPP motion to strike challenges the legal sufficiency of
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`a claim, a district court applies the Rule 12(b)(6) standard and considers whether a claim is
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`properly stated. Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828,
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`834 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018).
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`Litigation of an anti-SLAPP motion requires two steps. First, the defendant must show
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`that the plaintiff's claim arises from an act by the defendant made in connection with a public issue
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`in furtherance of the defendant’s right to free speech. If the defendant makes this showing, the
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`plaintiff must demonstrate a reasonable probability that he will prevail on his claim. See In re
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`NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1272–73 (9th Cir. 2013).
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`If the plaintiff cannot make this showing, the Court must strike the claim. Id.
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`III. DEFENDANTS’ RULE 12(B)(6) MOTIONS TO DISMISS
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`Both defendants move to dismiss Mr. Stossel’s defamation claim under Rule 12(b)(6) for
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`failure to state a claim. Because Mr. Stossel’s defamation claim rests on allegations of
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 12 of 20
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`defendants’ joint conduct and/or shared responsibility, and because defendants make similar
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`arguments in support of their motions to dismiss,9 the Court addresses defendants’ motions
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`together.
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`To state a claim for defamation under California law, Mr. Stossel must allege (1) a
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`publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to
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`injure or causes special damage. Taus v. Loftus, 40 Cal. 4th 683, 720 (2007); Cal. Civ. Code
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`§§ 44-45. Additionally, because Mr. Stossel is a public figure,10 he must show that defendants
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`acted with “actual malice”—that is, with “knowledge that [a statement] was false” or with
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`“reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254,
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`280 (1964). Defendants argue that Mr. Stossel does not allege facts plausibly supporting a
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`defamation claim and that he cannot state a claim for defamation as a matter of law. Mr. Stossel
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`opposes all of these arguments. The Court does not address all of defendants’ arguments, but
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`focuses on the question of whether the allegedly defamatory statements are actionable as
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`statements of fact.
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`A.
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`The Allegedly Defamatory Statements
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`Mr. Stossel asserts a single claim for defamation against Meta and Science Feedback based
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`on two allegedly defamatory statements. Dkt. No. 1 ¶¶ 115–133.
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`First, Mr. Stossel alleges that “[d]efendants stated by implication” that Mr. Stossel made a
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`claim in the Fire Video—that “forest fires are caused by poor management[,] [n]ot by climate
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`change”—that he did not make. Id. ¶ 116. In other words, Mr. Stossel alleges that defendants
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`“falsely attributed to [him] a claim that he did not make in connection with the Fire Video” by
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`affixing “missing context” and “misleading” labels to the Fire Video and cross-referencing
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`Climate Feedback’s Fire Article as support for those labels. Id. ¶¶ 112, 116, 118. Mr. Stossel
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`calls this the “False Attribution.” Id. ¶ 116. He alleges that a “reasonable reader of the False
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`9 Meta vigorously disputes that it can be held responsible for the labels Science Feedback selects
`or for the explanations that appear when a viewer clicks on the “See Why” button. The Court
`finds it unnecessary to address this argument for purposes of resolving the motions.
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`10 For purposes of these motions, Mr. Stossel does not dispute that he is a public figure. Dkt. No.
`49 at 11; Dkt. No. 54 at 16.
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`12
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 13 of 20
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`Attribution, viewing Defendants[’] statements in context, would and did understand it to mean that
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`Stossel had claimed that climate change is not a cause of forest fires.” Id. ¶ 118.
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`Second, Mr. Stossel alleges that “[d]efendants stated that Stossel’s Alarmism Video had
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`been subjected to a ‘fact-check’ that had determined that the Alarmism Video contained ‘factual
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`inaccuracies’ and was ‘partly false.’” Id. ¶ 125. Mr. Stossel calls these statements the “False
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`Statements.” Id. He alleges that “[a] reasonable reader, viewing these False Statements in
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`context, would and did understand them to mean that Stossel’s reporting contained inaccurate
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`facts, rendering it partly false.” Id. ¶ 127.
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`B.
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`Actionable Statements of Objective Fact
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`The First Amendment protects statements of subjective opinion, viewpoint, and
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`interpretation, but not false statements or implied assertions of objective fact. Milkovich v. Lorain
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`Journal Co., 497 U.S. 1, 20 (1990); Partington v. Bugliosi, 56 F.3d 1147, 1153 (9th Cir. 1995)
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`(citing Unelko Corp. v. Rooney, 912 F.3d 912 F.2d 1049, 1053 (9th Cir. 1990)). Here, the parties
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`dispute whether the allegedly defamatory statements are actionable as statements of fact.
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`Defendants argue that the challenged statements cannot reasonably be understood to declare or
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`imply provable assertions of fact. Dkt. No. 27 at 16; Dkt. No. 50 at 14-16. Mr. Stossel argues that
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`they can be, and were, understood as statements of fact by Mr. Stossel’s viewers. Dkt. No. 49 at
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`15; Dkt. No. 54 at 7-8.
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`In evaluating the parties’ arguments, the Court examines the general and specific contexts
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`in which the statements were made, as well as the statements themselves. The Court considers
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`the statements with respect to each video separately.
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`1.
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`Fire Video – False Attribution
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`Mr. Stossel does not object to the application of the “Missing Context” label to the Fire
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`Video. He objects to statements made in connection with that label that he says imply he made a
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`claim in that video—i.e., that “forest fires are caused by poor management[,] [n]ot by climate
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`change.” Dkt. No. 1 ¶ 116. He alleges that he did not make such a claim, and so the assertion that
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`he did so is false. Id. The Court examines this contention in context.
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`First, Facebook’s fact-check program, as practiced generally and in the particular instance
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 14 of 20
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`of the Fire Video, reflects a subjective judgment about the accuracy and reliability of assertions
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`made in the content that has been checked. See Dkt. Nos., 27-3, 27-5. As is evident from text
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`associated with the label place on the Fire Video, “Missing Context” means that “[i]ndependent
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`fact-checkers say this information is missing context and could mislead people.” Dkt. No. 1 ¶ 45.
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`Simply because the process by which content is assessed and a label applied is called a “fact-
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`check” does not mean that the assessment itself is an actionable statement of objective fact.11
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`Second, nothing in the text associating the “claim” that “[f]orest fires are caused by poor
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`management[,] [n]ot by climate change” with the Fire Video implies that Mr. Stossel himself
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`made such a claim. On its face, the challenged text implies or asserts that such a claim is made in
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`the video.12 A reviewer could reasonably conclude that such a claim is made in the video. For
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`example, the video includes the following passages:
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`Shellenberger: Climate change is real. It’s not the end of the world.
`It’s not our most serious environmental problem.
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`Stossel: And it’s not the main cause of the California fires.
`…
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`Stossel: If not climate change, what is to blame?
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`[Cartoon clip of Smokey the Bear saying, “Only you can prevent
`forest fires.”]
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`Stossel: Foolish policies. . . .
`…
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`Stossel: Climate has made things worse. California’s warmed three
`degrees over 50 years. But—
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`Shellenberger: You could have had this amount of warming and not
`had these fires and the reason we know that is because the forests
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`11 Mr. Stossel cites no authority supporting his suggestion that defendants must expressly identify
`their labels and associated statements as viewpoint or opinion. See Dkt. No. 54 at 1 (“Had
`Defendants transparently told the public what they now argue in court—that Defendants were not
`claiming to evaluate Stossel’s work for factual accuracy, but instead were simply expressing a
`disagreement on scientific opinion—this lawsuit would not have been filed.”) (cleaned up).
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`12 For this reason alone, the False Attribution is not actionable. See Hayes v. Facebook, No. 19-
`CV-02106-TSH, 2019 WL 5088805, at *7 (N.D. Cal. Aug. 15, 2019), report and recommendation
`adopted, No. 19-CV-02106-HSG, 2019 WL 5091162 (N.D. Cal. Sept. 5, 2019) (holding that
`Facebook notice identifying link as malicious was not “of and concerning” plaintiff who posted
`link, and therefore not defamatory).
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`Case 5:21-cv-07385-VKD Document 67 Filed 10/11/22 Page 15 of 20
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`that were well managed have survived the mega fires.
`…
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`Stossel: It’s about time. Bad policies were the biggest cause of this
`year’s fires, not the slightly warmer climate. And while climate
`change is a problem, Shellenberger’s new book explains, it’s not an
`apocalypse.
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`Dkt. No. 28 at 2:17-21, 3:10-13, 3:25-4:6, 6:25-7:4. In any event, Mr. Stossel does not challenge
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`the assessment that such a claim, if made, is “missing context” and therefore “misleading.” He
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`asserts that because the “claim” is associated with a video Mr. Stossel narrated, produced, and
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`posted on his Facebook page, any critique of the contents of that video reflects on him personally.
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`Even if the Court assumes, without finding, for purposes of this motion that this is so, the disputed
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`attribution nevertheless is not a statement of objective fact about Mr. Stossel or his reporting, but
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`rather the reviewer’s subjective interpretation of the Fire Video’s contents.