Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 1 of 21
`
`
`
`No. 21-16210
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`CHILDREN'S HEALTH DEFENSE,
`a Georgia non-profit organization,
`
`Plaintiff-Appellant,
`
`v.
`
`FACEBOOK, INC., a Delaware corporation;
`MARK ZUCKERBERG, a California resident;
`THE POYNTER INSTITUTE FOR MEDIA STUDIES, INC.,
`a Florida corporation; SCIENCE FEEDBACK, a French corporation,
`
`Defendants-Appellees.
`
`
`Appeal from the Judgment of the United States District Court
`for the Northern District of California, Case No. 3:20-cv-05787-SI
`Honorable Susan Illston, United States District Judge
`
`
`AMICUS CURIAE BRIEF IN SUPPORT OF
`CHILDREN’S HEALTH DEFENSE AND REVERSAL
`
`
`
`JOHN W. WHITEHEAD
`THE RUTHERFORD INSTITUTE
`109 Deerwood Road
`Charlottesville, VA 22911
`Telephone: (434) 978-3888
`legal@rutherford.com
`
`
`Counsel for Amicus Curiae
`
`

`

`Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 2 of 21
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`TABLE OF CONTENTS
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`Page #
`
`
`TABLE OF AUTHORITIES…………………………………………………….…ii
`
`IDENTITY AND INTEREST OF AMICUS CURIAE……………………………1
`
`SUMMARY OF ARGUMENT………………………………………………….…2
`
`ARGUMENT: THE DISTRICT COURT’S DISMISSAL OF CHD’S
`SECOND AMENDED COMPLAINT UNDER RULE 12(b)(6) MUST BE
`REVERSED BECAUSE CHD HAS PLED SUFFICIENT FACTS THAT
`DEFENDANTS VIOLATED CHD’S FIRST AMENDMENT RIGHTS IN
`THEIR ROLE AS GOVERNMENT ACTORS…………………………….……...4
`
`
`A.Whether state action exists is a fact-bound inquiry, and CHD has met the
`threshold pleading requirements precluding a dismissal of its claims under
`Rule 12(b)(6)………………………………………………………………...5
`
`
`
`
`
`B. CHD alleged sufficient facts to state a claim of government action by
`Defendants, making this case distinguishable from Prager and Divino…….7
`
`C. The district court’s judgment must be reversed to enable CHD to procced
`with this lawsuit so as to avoid grave injustice and lack of a remedy where
`the government acts through private companies to violate constitutionally
`protected rights……………………………………………………………..11
`
`
`CONCLUSION…………………………………………………………………...16
`
`CERTIFICATE OF COMPLIANCE (FORM 8)………………………………….17
`
`
`
`
`
`i
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`

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`TABLE OF AUTHORITIES
`
`Cases
`
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009)…………………………………………………......7, 11
`
`
`Biden v. Knight First Amendment Institute,
`141 S.Ct. 1220 (2021)………………...……………………………………..2
`
`
`Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
`403 U.S. 388 (1971)………………………………………………2, 6, 10, 11
`
`
`Blum v. Yaretsky,
`457 U.S. 991 (1982)………………………………………………………..10
`
`
`Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
`531 U.S. 288 (2001)………………………………………………..5, 6, 7, 11
`
`
`Brunette v. Humane Soc’y of Ventura Cty.,
`294 F.3d 1205 (9th Cir. 2002)……………………………………………….8
`
`
`Divino Group, LLC v. Google, LLC, et.al.,
`2021 WL 5175 (N.D. Cal. Jan. 6, 2021)…………………………...3, 4, 9, 10
`
`
`Dobyns v. E-Systems, Inc.,
`667 F.2d 1219 (5th Cir. 1982)………………………………………………8
`
`
`Johnson v. Knowles,
`113 F.3d 1114 (9th Cir. 1997)……………………………………………….5
`
`
`Lugar v. Edmondson Oil Co.,
`457 U.S. 922 (1982)…………………………………………………………6
`
`
`Marsh v. Alabama,
`326 U.S 501 (1946)………………………………………………………….8
`
`
`Packingham v. North Carolina,
`137 S.Ct. 1730 (2017)………………………………….………..…....2, 3, 11
`
`
`
`ii
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`

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`Prager University v. Google LLC, YouTube LLC,
`951 F.3d 991 (9th Cir. 2020)……………………………………...3, 4, 7, 8, 9
`
`
`Other Authorities
`
`Article 19 of the Universal Declaration of Human Rights………………………..15
`
`Fed. R. App. P. 29(a)(2)……………………………………………………………1
`
`Fed. R. Civ. P. 12(b)(6)……………………………………………...…….4, passim
`
`Hatmaker, Taylor, “White House asks tech leaders for help with coronavirus
`response,” TechCrunch.com (March 11, 2020),
`https://techcrunch.com/2020/03/11/white-house-cto-kratsios-tech-facebook-
`google-meeting/.......................................................................................................12
`
`Johnstone, Caitlin, “Why You Should Oppose the Censorship of David Icke (Hint:
`It Has Nothing to Do With Icke),” Medium.com (May 2, 2020),
`https://medium.com/@caityjohnstone/why-you-should-oppose-the-
`censorshipofIcke .....................................................................................................14
`
`Kean, Sean, and Sherr, Ian, “White House asks tech companies for help battling
`coronavirus,” C/NET (March 12, 2020), https://www.cnet.com/news/white-house-
`asks-tech-companies-for-help-battling-coronavirus/ ……………………………..13
`
`Romm, Tony, “White House asks Silicon Valley for help to combat coronavirus,
`track its spread and stop misinformation,” The Washington Post (March 11, 2020)
`https://www.washingtonpost.com/technology/2020/03/11/white-house-tech-
`meeting-coronavirus ...............................................................................................12
`
`Shu, Catherine, and Shieber, Jonathan, “Facebook, Reddit, Google, LinkedIn,
`Microsoft, Twitter and YouTube issue joint statement on misinformation,”
`TechCrunch.com (March 16, 2020), https://techcrunch.com/2020/03/16/facebook-
`reddit-google-linkedin-microsoft-twitter-and-youtube-issue-joint-statement-on-
`misinformation ........................................................................................................13
`
`VanLandingham, Rachel Incitement at 100--And 50--And Today: Words We Fear:
`Burning Tweets & the Politics of Incitement, 85 Brook. L. Rev. 37 (2019)……...14
`
`
`
`iii
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`

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`IDENTITY AND INTEREST OF AMICUS CURIAE1
`
`The Rutherford Institute is an international nonprofit organization
`
`headquartered in Charlottesville, Virginia. Founded in 1982 by its President,
`
`John W. Whitehead, the Institute provides legal representation at no charge to
`
`individuals whose constitutional rights have been threatened or violated, and
`
`educates the public about constitutional and human rights issues affecting their
`
`freedoms. The Rutherford Institute is interested in this case because it touches
`
`upon core questions of the right to freedom of expression which is the bedrock for
`
`preservation of individual liberty that both the federal elements of our
`
`constitutional structure and the Bill of Rights were created to protect and preserve.
`
`The Rutherford Institute writes in support of the appeal filed by Children’s
`
`Health Defense (“CHD”) from the judgment rendered in the district court on
`
`June 30, 2021 dismissing CHD’s claims against Facebook, Zuckerberg, and
`
`Poynter (“Defendants”). The purpose of this Brief is to support CHD’s first cause
`
`
`1 Amicus certifies that counsel of record for Children’s Health Defense,
`Facebook, Inc., Mark Zuckerburg, and The Poynter Institute for Media Studies,
`Inc. have consented to Amicus filing a brief in support of CHD. Amicus thus files
`this brief pursuant to Fed. R. App. P. 29(a)(2). Although Science Feedback is
`named in the title of this case, the claims against Science Feedback were dismissed
`without prejudice by the district court due to lack of service, and Science Feedback
`has not appeared in this matter; thus, no consent was obtained or needed from
`Science Feedback. No counsel for a party authored this brief in whole or in part,
`and no party or counsel for a party contributed money that was intended to fund
`preparing or submitting this brief.
`
`1
`
`

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`of action in its Second Amended Complaint for First and Fifth Amendment
`
`(Bivens) violations.
`
`SUMMARY OF ARGUMENT
`
`
`In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), the United States
`
`
`
`Supreme Court unequivocally recognized the importance of an individual’s right to
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`participate in social media by striking down a state’s prohibition on a convicted
`
`felon having access to the internet. In an 8-0 ruling, the Court held that the
`
`prevalence of social media in the current time renders it nearly impossible to have
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`“a voice” in any meaningful way without access to such technology. The court
`
`held that the state did not have a compelling interest in silencing Packingham’s
`
`voice on social media even though he was a convicted felon.
`
`
`
`Packingham demonstrated the high court’s recognition of the prevalence and
`
`importance of the internet generally, and social media platforms in particular, and
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`that depriving an individual of access to these platforms effectively quells their
`
`right to express themselves. The court found that the state of North Carolina did
`
`not have a compelling state interest to infringe on Packingham’s fundamental first
`
`amendment rights.2
`
`
`2 Recently, Justice Clarence Thomas noted that the enormous control which digital
`platforms have over speech makes them like a communications utility. Biden v.
`Knight First Amendment Institute, 141 S.Ct. 1220, 1224 (2021) (Thomas, J.,
`concurring).
`
`2
`
`

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`Of course, Packingham showed a clear case of state action—a state law.
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`However, a less obvious but no less genuine form of state action3 has been pled in
`
`CHD’s Second Amended Complaint (also referred to as “SAC”). CHD pled
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`numerous concrete instances wherein Defendants have censored, censured,
`
`de-monetized and de-platformed CHD’s postings thereon at the direct behest of
`
`government actors, who have made it clear that their orders are aimed at the
`
`content of CHD’s postings. CHD pled the names of the individual state actors,
`
`branches of government and administrations, what they have told Defendants to
`
`do, when they have told Defendants to do it, and how Defendants unequivocally
`
`acquiesced to the direct orders of the government actors and admitted doing so.
`
`CHD set forth concrete facts that far surpass the amount needed to invoke
`
`state action, as explained in Prager University v. Google LLC, 951 F.3d 991 (9th
`
`Cir. 2020), and in Divino Group, LLC v. Google, LLC et.al., 2021 WL 5175 (N.D.
`
`Cal. Jan. 6, 2021). As discussed more fully below, the threshold for state action
`
`was not met in those cases, but state action by private companies could have been
`
`found if the nexus between those actors and the government been established. That
`
`nexus has been established by CHD in this case here.
`
`
`
` 3
`
` The term “state action” as used herein includes the concept of “government
`action” that applies to actions by the government of the United States.
`
`3
`
`

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`Both Prager and Divino Group are distinguishable from the case at bar
`
`because neither were able to plead a nexus between any government action and the
`
`private company defendant. The courts in both of those cases stated that what was
`
`lacking was a direct connection to government action which caused the harm. Yet,
`
`in both of those cases, the parties were given leave to amend by the respective
`
`courts.
`
`
`
`In this case, CHD alleged a significant number of state actions performed by
`
`Defendants which directly led to the censorship of CHD on social media based
`
`exclusively upon content that the government found objectionable. Without being
`
`able to proceed in this lawsuit, CHD and others similarly situated would be left
`
`without any remedy for violation of their constitutional rights inflicted by
`
`government officials using big tech as their deputized proxy. Indeed, if the Court
`
`does not find CHD’s pleading of state action sufficient here, it is difficult to imagine what
`
`level of detail would be needed to overcome the granting of a Rule 12(b)(6) motion based
`
`upon a failure to plead state action.
`
`ARGUMENT
`
`
`THE DISTRICT COURT’S DISMISSAL OF CHD’S SECOND AMENDED
`COMPLAINT UNDER RULE 12(b)(6) MUST BE REVERSED BECAUSE
`CHD HAS PLED SUFFICIENT FACTS THAT DEFENDANTS VIOLATED
`CHD’S FIRST AMENDMENT RIGHTS IN THEIR ROLE AS
`GOVERNMENT ACTORS
`
`
`4
`
`

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`A. Whether state action exists is a fact-bound inquiry, and CHD has
`met the threshold pleading requirements precluding a dismissal of its
`claims under Rule 12(b)(6).
`
`
`The U.S. Supreme Court set forth a three-part test which amounts to a
`
`totality of the circumstances test for the existence of state action in Brentwood
`
`Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296, 298 (2001). That
`
`test considers the following factors: (1) whether the private party’s conduct results
`
`from the state’s exercise of coercive power; (2) whether the state provides
`
`significant overt or covert encouragement in an activity; and (3) whether the
`
`private party operates as a willful participant in the government activity.
`
`Brentwood Acad., 531 U.S. at 296; see also Johnson v. Knowles, 113 F.3d 1114,
`
`1115 (9th Cir. 1997) (willful participation by private party in joint activity with
`
`government actors is all that is required to find state action).
`
`
`
`CHD alleged facts evidencing that Defendants herein were de facto state
`
`actors under all three factors. For example, the CHD cited a letter which
`
`Congressman Adam Schiff sent to Defendants, threatening their immunity from
`
`suit under section 230 of the Common Decency Act if Defendants failed to censor
`
`content on their sites which Schiff and other congress members found
`
`objectionable. (SAC pars. 60-69.) CHD further alleged that Defendants were
`
`pressured by the United States Congress to suppress content that “casts doubt on
`
`the efficacy of vaccines,” and that Defendants acted in partnership with
`
`5
`
`

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`government actors including the CDC, a federal agency, and the CDC’s proxy, the
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`WHO, while Defendants promoted the CDC as the ultimate authority in the
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`subject. (See, e.g., SAC paras. 1, 40-51; 56-64; 70, 98-104; 308,312, 364-368.)
`
`CHD also pleaded that Zuckerberg repeatedly stated he was working directly with
`
`the government on these issues. (SAC pars 49-45; 69-70; 308.)
`
`
`
`These are but a few examples cited in CHD’s Second Amended Complaint
`
`which show that this Court must reverse the district court’s decision to dismiss
`
`CHD’s claims. CHD has met, if not surpassed, the pleading threshold for setting
`
`forth facts which allege Defendants were de facto deputized federal state actors
`
`who violated CHD’s First Amendment rights under Bivens v. Six Unknown Named
`
`Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
`
`
`
`Indeed, the Supreme Court has made it plain that whether a nominally
`
`private entity’s acts constitute government action is a “necessarily fact-bound
`
`inquiry,” Brentwood Acad. 531 U.S. at 298 (quoting Lugar v. Edmondson Oil Co.,
`
`457 U.S. 922, 939 (1982)). Thus, such a case is not suitable or appropriate for
`
`resolution on a motion to dismiss under Rule 12(b)(6).
`
`Because there are a range of circumstances which can point to the
`
`government being behind a nominally private decision, courts should be loath to
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`grant a motion to dismiss for failure to allege state action, particularly when the
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`facts are construed in the light most favorable to the plaintiff and the claim need
`
`6
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`

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`only be “plausible” on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As
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`discussed herein, CHD set forth compelling facts and circumstances showing that
`
`Defendants were operating as de facto government agents.
`
`
`
` Moreover, dismissal of CHD’s claims without permitting any factual
`
`development of the circumstances surrounding the censorship and de-platforming
`
`of CHD was an abdication of the responsibility of the district court to ensure that
`
`fundamental rights of free speech are not violated by sub rosa governmental
`
`action. As the Supreme Court has declared:
`
`The judicial obligation is not only to preserve an area of individual
`freedom by limiting the reach of federal law and avoid the imposition
`of responsibility on a State for conduct it could not control, but also to
`assure that constitutional standards are invoked when it can be said
`that the State is responsible for the specific conduct of which the
`plaintiff complains. If the Fourteenth Amendment is not to be
`displaced, therefore, its ambit cannot be a simple line between States
`and people operating outside formally governmental organizations,
`and the deed of an ostensibly private organization or individual is to
`be treated sometimes as if a State had caused it to be performed.
`
`
`Brentwood Acad., 531 U.S. at 295 (internal citations and quotation marks omitted).
`
`B. CHD alleged sufficient facts to state a claim of government
`action by Defendants, making this case distinguishable from Prager
`and Divino.
`
`
`
`
`In Prager University v. Google LLC, 951 F.3d 991 (9th Cir. 2020), Prager
`
`University sued Google for censoring its content on the latter’s platform, arguing
`
`that the defendants should be considered state actors under the public function test.
`
`Similar to CHD, Prager University is an educational 501(c)(3)(c) corporation
`
`7
`
`

`

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`which filed a complaint against YouTube LLC (“YouTube”) and Google LLC
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`(“Google”) alleging inter alia, a cause of action for violations of the First
`
`Amendment to the United States Constitution stemming from the defendants
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`censoring, restricting, and filtering the content of videos based upon Prager’s
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`conservative viewpoint and political ideology. Prager’s argument was that, in
`
`holding itself out as fora encouraging speech activity and asserting viewpoint
`
`neutrality, the defendants were state actors under the “public function test.”
`
`The Court outlined the limited occasions where courts have allowed the
`
`conversion of private action into public function, state action. The cases have been
`
`limited to activities performed by the private actor which were traditionally the
`
`exclusive prerogative of the state. Marsh v. Alabama, 326 U.S 501 (1946);
`
`Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir. 2002).
`
`Examples of functions that have qualified have been to private entities, holding
`
`public elections, governing a town and serving as an international peace-keeping
`
`force. Brunette, 294 F.3d at 1214; Dobyns v. E-Systems, Inc. 667 F. 2d 1219,
`
`1226-1227 (5th Cir. 1982).
`
`
`
`The Prager Court found that defendants YouTube and Google did not
`
`perform functions which were traditionally the exclusive prerogative of the state,
`
`and therefore, there was no state action under the First Amendment under the
`
`“public functions” test. As Prager did not plead any other theory of state action
`
`8
`
`

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`under the First Amendment, the Defendant’s Rule 12(b)(6) motion was granted,
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`and Prager was given leave to amend its Complaint to allege state action. Prager
`
`appealed the district court’s decision, which was affirmed by the Ninth Circuit.
`
`Prager University, 951 F.3d 991 (9th Cir. 2020).
`
`
`
`Following on the heels of Prager was a ruling on a Rule 12(b)(6) motion in
`
`Divino Group LLC v. Google LLC, 2021 WL 51715 (N.D. Cal. Jan. 6, 2021),
`
`wherein Divino Group filed a complaint alleging censorship and restriction of its
`
`content based upon its LGBTQ political identities and viewpoints. Divino Group
`
`claimed its First Amendment rights were violated under the “public function” test,
`
`arguing that since defendants designated themselves a public forum for free
`
`expression, defendants had thereby taken on the traditional and exclusive
`
`governmental function of regulating speech. The court noted that this theory of
`
`public function was already rejected by the Ninth Circuit when it held that the
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`hosting of speech in a private platform is not a “traditional and exclusive
`
`government function,” required for it to fall within the purview of the “public
`
`function test.” Prager, 951 F.3d. at 997-98.
`
`
`
`Divino Group’s second argument was that the defendants’ statutory
`
`protection against immunity under section 230 of the Common Decency Act
`
`amounts to government endorsement of the defendants’ alleged discrimination
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`against Divino Group’s speech based upon content. The Court rejected this
`
`9
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`

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`argument. First, Divino Group had brought its claim under 42 U.S.C. § 1983,
`
`which applies exclusively to actions taken under color of state law, rather than
`
`federal law. A claim for a federal violation of constitutional rights must be brought
`
`under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics 403 U.S.
`
`388 (1971). But Divino Group did not plead a Bivens claim. The court also
`
`remarked that a private entity could be considered a state actor when the
`
`government compels the private entity to take a particular action. Divino, 2021 WL
`
`51715, *6 (citing Blum v. Yaretsky, 457 U.S. 991 (1982)). However, the court
`
`found Divino Group did not plead any such compulsion, although it was given
`
`leave to amend.
`
`
`
`In the instant case, CHD is not relying upon the doctrine of public function
`
`as the legal basis for its First Amendment claims against Defendants. The
`
`gravamen, and indeed the literal pleading of CHD’s Second Amended Complaint
`
`is that the federal government, through multiple government officials and actors,
`
`including but not limited to Congressman Adam Schiff, directed, instructed,
`
`encouraged and compelled Facebook to censor the content of CHD expressly
`
`because the government did not want any viewpoints contrary to its own on the
`
`efficacy of vaccinations in general and COVID-19 vaccinations in particular.
`
`10
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`

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`CHD has in fact made and pled a Bivens claim in its Second Amended
`
`Complaint, and otherwise met the pleading requirements for its First Cause of
`
`Action against Defendants.
`
`C. The district court’s judgment must be reversed to enable CHD to
`procced with this lawsuit so as to avoid grave injustice and lack of a
`remedy where the government acts through private companies to
`violate constitutionally protected rights.
`
`
`
`CHD’s Second Amended Complaint makes numerous allegations supporting
`
`its contention that federal actors and agencies encouraged, coerced, and jointly
`
`participated in the censorship of CHD’s expression on Facebook. It is axiomatic
`
`that these allegations must be accepted as true for purposes of a motion to dismiss.
`
`Ashcroft v. Iqbal, 556 U.S. at 678. As the Supreme Court held in Brentwood Acad.,
`
`531 U.S. at 298, the courts must remain available to those whose fundamental
`
`liberties are infringed by the government acting in a clandestine matter through
`
`private entities. Indeed, it is particularly crucial that CHD’s allegations of
`
`government direction of the suppression of expression by the Defendants be fully
`
`and fairly heard in light of growing evidence that the federal government is co-
`
`opting the social media found so important in Packingham to squelch disfavored
`
`speech.
`
`For example, in March 2020, the United States government held a meeting
`
`with Facebook, Google (YouTube’s owner) and other tech giants for the purpose
`
`of enlisting their assistance in suppressing information related to COVID-19.
`
`11
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`

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`Numerous media outlets reported that on or about March 11, 2020, the White
`
`House held a meeting with tech companies, including Facebook and Google, in
`
`which the White House chief technology officer asked for the companies’ help in
`
`spreading accurate information and preventing the spread of misinformation about
`
`the coronavirus outbreak.4 As reported by The Washington Post, White House
`
`chief technology officer Michael Kratsios met with representatives of the tech
`
`companies to enlist their help in augmenting the government’s efforts in the fight
`
`against the coronavirus, hoping that Silicon Valley might foster the government’s
`
`efforts to track the outbreak and disseminate accurate information:
`
`“Cutting edge technology companies and major online platforms will
`play a critical role in this all-hands-on-deck effort,” Michael
`Kratsios, the White House’s chief technology officer, said in a
`statement. “Today’s meeting outlined an initial path forward and we
`intend to continue this important conversation.”5
`
`The focus of the meeting was in getting corporate entities such as Facebook
`
`and Twitter to stop the spread of any so-called coronavirus conspiracy theories on
`
`
`4 See, e.g., Hatmaker, Taylor, “White House asks tech leaders for help with
`coronavirus response,” TechCrunch.com (March 11, 2020),
`https://techcrunch.com/2020/03/11/white-house-cto-kratsios-tech-facebook-
`google-meeting/.
`
` 5
`
` Romm, Tony, “White House asks Silicon Valley for help to combat coronavirus,
`track its spread and stop misinformation,” The Washington Post (March 11, 2020),
`https://www.washingtonpost.com/technology/2020/03/11/white-house-tech-
`meeting-coronavirus/.
`
`12
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`Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 17 of 21
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`their platforms.6 Acting on this government mandate, on March 16, Facebook,
`
`Google and other tech companies issued a statement pledging to “jointly combat[]
`
`fraud and misinformation about the virus, elevating authoritative content on our
`
`platforms, and sharing critical updates in coordination with government healthcare
`
`agencies around the world.”7
`
`
`
`Following this March 2020 meeting, aggressive censorship, including
`
`de-platforming emerged as the policy of Defendants, working in conjunction with
`
`government entities to block the online publication of ideas that do not comport
`
`with government messaging regarding the COVID-19 pandemic and other
`
`health-related issues. Such government directed actions have stymied CHD and
`
`other public interest groups in their ability to speak on issues of public concern to
`
`the audience that follows CHD and these issues. Censorship of the kind CHD has
`
`been subjected to is increasing at a rate that poses a serious threat to the freedoms
`
`of all people, regardless of their views. Moreover, it is wholly contrary to universal
`
`principles of freedom of speech which are the very foundation for representative
`
`
`6 Kean, Sean, and Sherr, Ian, “White House asks tech companies for help battling
`coronavirus,” C/NET (March 12, 2020), https://www.cnet.com/news/white-house-
`asks-tech-companies-for-help-battling-coronavirus/.
`
` 7
`
` Shu, Catherine, and Shieber, Jonathan, “Facebook, Reddit, Google, LinkedIn,
`Microsoft, Twitter and YouTube issue joint statement on misinformation,”
`TechCrunch.com (March 16, 2020), https://techcrunch.com/2020/03/16/facebook-
`reddit-google-linkedin-microsoft-twitter-and-youtube-issue-joint-statement-on-
`misinformation/.
`
`13
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`Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 18 of 21
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`democracy. What is at stake is no less than freedom of speech itself because of the
`
`coordinated actions of large technology corporations with control over access to
`
`information colluding with government entities to stifle any forms of dissent which
`
`challenge a chosen status quo.
`
`The importance of this issue raised by CHD’s Second Amended Complaint
`
`alleging government actors using private tech companies to do their bidding cannot
`
`be overstated. In her article, Incitement at 100--And 50--And Today: Words We
`
`Fear: Burning Tweets & the Politics of Incitement, 85 Brook. L. Rev. 37 (2019),
`
`Rachel VanLandingham points out that Congress regularly summons social media
`
`executives and representatives, whom they then instruct to crack down on
`
`objectionable speech that Congress itself cannot lawfully censor. As another
`
`journalist observed:
`
`What matters is that we’re seeing a consistent and accelerating
`pattern of powerful plutocratic institutions collaborating with the
`US-centralized empire to control what ideas people around the world
`are permitted to share with each other, and it’s a very unsafe
`trajectory.8
`
`
`
`As a civil liberties organization whose purpose is to ensure the preservation
`
`of a robust First Amendment, especially as it pertains to free speech and a free
`
`
`8 Johnstone, Caitlin, “Why You Should Oppose the Censorship of David Icke
`(Hint: It Has Nothing to Do With Icke),” Medium.com (May 2, 2020),
`https://medium.com/@caityjohnstone/why-you-should-oppose-the-
`censorshipofIcke.
`
`
`14
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`Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 19 of 21
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`press, The Rutherford Institute is gravely concerned about the possibility that
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`Defendants’ social media platforms herein censored, censured, labeled,
`
`demonetized, and deactivated the social media platforms for CHD, all at the
`
`bidding of the U.S. government in order to silence views which the government
`
`disapproves. There is every indication that this collusion will continue. Quite
`
`simply, the censorship of online speech at government behest constitutes
`
`government action in violation of the First Amendment’s guarantee of free speech
`
`and the Universal Declaration of Human Rights.9
`
`Because CHD’s Second Amended Complaint clearly pled facts supporting
`
`its allegations that Defendants have acted as de facto deputized actors, amicus
`
`curiae submits that the totality of the circumstances test which must be applied to
`
`determine state action forecloses the possibility that the granting of a Rule 12(b)(6)
`
`motion would be proper in this case, and is further concerned that granting the
`
`motion to dismiss in the face of such detailed pleadings of state involvement and
`
`coercion would render it a near impossibility to plead sufficient facts showing the
`
`government acting by proxy through technology in the future.
`
`
`
`
`
`9 As Article 19 of the Universal Declaration of Human Rights affirms: “Everyone
`has the right to freedom of opinion and expression; this right includes freedom to
`hold opinions without interference and to seek, receive and impart information and
`ideas through any media and regardless of frontiers.”
`https://www.un.org/en/universal-declaration-human-rights/.
`
`15
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`Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 20 of 21
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`CONCLUSION
`
`The Rutherford Institute respectfully submits that CHD’s pleadings in this
`
`matter as governed by the applicable law require this Court to allow CHD’s case to
`
`go forward. As such, The Rutherford Institute urges this Court to reverse the
`
`judgment of the district court which granted Defendants’ Motion to Dismiss under
`
`Rule 12(b)(6), and allow CHD’s case to proceed on its merits and for these crucial
`
`issues to be adjudicated.
`
`Dated: November 4, 2021
`
`
`
`
`
`Respectfully submitted,
`
`THE RUTHERFORD INSTITUTE
`BY: s/John W. Whitehead
` Counsel for Amicus Curiae
`
`
`
`16
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`Case: 21-16210, 11/04/2021, ID: 12278442, DktEntry: 25, Page 21 of 21
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`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`Form 8. Certificate of Compliance for Briefs
`Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
`
`9th Cir. Case Number(s)
`
`21-16210
`
`I am the attorney or self-represented party.
`
`This brief contains words, excluding the items exempted
`3,584
`
`by Fed. R. App. P. 32(f). The brief’s type size and typeface comply with Fed. R.
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`App. P. 32(a)(5) and (6).
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`I certify that this brief (select only one):
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`complies with the word limit of Cir. R. 32-1.
`is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
`is an amicus brief and complies with the word limit of Fed. R. App. P.
`29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3).
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`complies with the longer length limit permitted by Cir. R. 32-2(b) because
`(select only one):
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`it is a joint brief submitted by separately represented parties;
`a party or parties are filing a single brief in response to multiple briefs; or
`a party or parties are filing a single brief in response to a longer joint brief.
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`complies with the length limit designated by court order dated .
`is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
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`Date
`Signature
`s/John W. Whitehead
`(use “s/[typed name]” to sign electronically-filed documents)
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