UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHILDREN’S HEALTH DEFENSE, No. 21-16210 a Georgia non-profit organization, D.C. No. Plaintiff-Appellant, 3:20-cv-05787-SI v. META PLATFORMS, INC., a OPINION 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 United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Argued and Submitted May 17, 2022 Pasadena, California

Filed August 9, 2024 2 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

Before: Eric D. Miller and Daniel P. Collins, Circuit Judges, and Edward R. Korman, * District Judge.

Opinion by Judge Miller; Partial Concurrence and Partial Dissent by Judge Collins

SUMMARY **

First Amendment/Social Media

The panel affirmed the district court’s dismissal of a complaint brought by the nonprofit advocacy organization Children’s Health Defense (CHD) against Meta Platforms, Mark Zuckerberg, and others challenging Meta’s policy of censoring Facebook posts conveying what CHD describes as accurate information challenging current government orthodoxy on vaccine safety and efficacy. The panel noted that although Meta is a private corporation, in certain exceptional circumstances, a private party will be treated as a state actor for constitutional purposes. To do so, the private party must meet two distinct requirements: (1) the “state policy” requirement, which is satisfied when a private institution enforces a state-imposed rule instead of the terms of its own rules; and (2) the “state actor” requirement, which can be met by showing, among

* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 3

other things, willful participation in joint activity with the government or government coercion. The panel held that CHD failed to meet the first requirement for state action because the source of CHD’s alleged harm was Meta’s own policy of censoring, not any provision of federal law. The evidence suggested that Meta had independent incentives to moderate content and exercised its own judgment in so doing. Moreover, CHD failed to allege any facts that would suggest an agreement between the government and Meta that required Meta to take a particular action in response to misinformation about vaccines or that the government coerced Meta into implementing a specific policy. The panel held that CHD’s inability to establish state action was fatal to all of its First Amendment claims—for damages under Bivens, for declaratory relief, and for an injunction. To the extent that CHD argued on appeal that Meta’s disabling of its donation button was a “taking” under the Fifth Amendment, that claim failed for the same reason. The panel further rejected CHD’s claim that the warning label and fact-checks Meta placed on its posts violated the Lanham Act, as well as CHD’s civil RICO claim. Concurring in part, concurring in the judgment in part, and dissenting in part, Judge Collins stated that CHD could plausibly allege a First Amendment claim for injunctive relief against Meta and he therefore dissented from the majority’s contrary conclusion. However, he agreed that all of CHD’s other claims were properly dismissed, and he therefore concurred in the judgment as to those remaining claims and in Parts III, IV, and V of the majori