Children's Health Defense v. Facebook Inc. et al

Filing 1

COMPLAINT for First and Fifth Amendments; Jury Trial Demand against Facebook Inc., Politifact, Poynter Institute, Science Feedback, Mark Zuckerberg (Filing fee $ 400.00, receipt number 0971-14825219.). Filed by Children's Health Defense. (Attachments: #1 Exhibit Exhibit A, #2 Civil Cover Sheet) (Teich, Roger) (Filed on 8/17/2020) Modified on 8/18/2020 (gbaS, COURT STAFF).

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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone: [phone]
E-Mail Address: [e-mail]
ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone: [phone]
E-Mail Address: [e-mail]
Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CHILDREN’S HEALTH DEFENSE,
a Georgia non-profit organization,

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Case No. _________________________
Plaintiff,

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VERIFIED COMPLAINT
v.
FACEBOOK, INC., a Delaware corporation;
MARK ZUCKERBERG, a California resident;
SCIENCE FEEDBACK, a French corporation;
POYNTER INSTITUTE, a Florida corporation;
POLITIFACT, a Florida-corporation; and
DOES 1-20,

1) FIRST AND FIFTH AMENDMENTS
(BIVENS);
2) LANHAM ACT (15 U.S.C. § 1125(a));
3) RICO FRAUD (18 U.S.C. § 1962);
4) DECLARATORY RELIEF.
JURY TRIAL DEMAND

Defendants.

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TABLE OF CONTENTS

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Page #

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TABLE OF AUTHORITIES .......................................................................................................iii

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VERIFIED COMPLAINT ............................................................................................................ 1

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INTRODUCTION ........................................................................................................................ 2

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JURISDICTION AND VENUE ................................................................................................... 5

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PARTIES AND RELATED ENTITIES ...................................................................................... 6

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STATEMENT OF MATERIAL FACTS ..................................................................................... 8

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A.

CHD’s Interest in Vaccine and 5G and Wireless Network Safety. ........................8

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B.

CHD’s Facebook Page. .........................................................................................12

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C.

Defendant’s Scheme to Defraud. ..........................................................................14

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1.

Overview. ..................................................................................................14

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2.

Means and Methods of Defendants’ Scheme. ...........................................22

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3.

Falsely Disparaging Warning Label..........................................................25

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4.

Materially Deceptive use of “Fact-Checkers.”..........................................27

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5.

Disabling CHD’s Fundraising and Ads.....................................................39

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6.

Disabling CHD’s Right to “Appeal” These Actions. ................................40

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7.

Concealment of the Overall Scheme. ........................................................40

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8.

Continuing Injuries to CHD. .....................................................................48

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D.

Material Questions of Vaccine Safety. .................................................................50

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E.

Material Questions of 5G Network Safety. ..........................................................55

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F.

Facebook’s Adverse Motives. ...............................................................................59

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1.

Zuckerberg’s Corporate Biases. ................................................................59

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2.

Vaccine-Maker Ad Revenue. ....................................................................62

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3.

Vaccine Development. ..............................................................................63

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4.

5G Networks. ............................................................................................65

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FIRST CAUSE OF ACTION -

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(FIRST AND FIFTH AMENDMENTS — BIVENS VIOLATIONS) ....................................... 67

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SECOND CAUSE OF ACTION -

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(LANHAM ACT VIOLATIONS — 15 U.S.C. § 1125(a)) ....................................................... 73

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A.

No Affirmative Defense of CDA “Immunity.” ....................................................86

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B.

The May 28, 2020 Executive Order. .....................................................................86

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THIRD CAUSE OF ACTION - (RICO — WIRE FRAUD VIOLATIONS) ............................ 87

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FOURTH CAUSE OF ACTION - (DECLARATORY RELIEF) ............................................. 92

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DEMAND FOR JURY TRIAL .................................................................................................. 93

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PRAYER FOR RELIEF ............................................................................................................. 94

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VERIFICATION ........................................................................................................................ 95

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TABLE OF AUTHORITIES

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Federal Cases

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Abrams v. United States,
250 U.S. 616 (1919) .......................................................................................................... 4, 45

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Ashcroft v. Free Speech Coalition,
535 U. S. (2002) .................................................................................................................... 71
Bass v. Facebook, Inc.,
394 F. Supp. 3d 1024 (N.D. Cal. 2019) .................................................................................. 3

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Batzel v. Smith,
333 F.3d 1018 (9th Cir. 2003) .............................................................................................. 86
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971) .............................................................................................................. 68
Blum v. Yaretsky,
457 U.S. 991 (1982) .............................................................................................................. 71
Board of Regents of State Colleges v. Roth,
408 U.S. 564 (1972) .............................................................................................................. 72
Bolger v. Youngs Drug Products Corp.,
463 U.S. 60 (1983) ................................................................................................................ 75
Boston Chamber of Commerce v. Boston,
217 U.S. 189 (1910) .............................................................................................................. 73
Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639 (2008) .................................................................................................. 45, 50, 90
Bridges v. California,
314 U.S. 252 (1941) .............................................................................................................. 21

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Bruesewitz v. Wyeth LLC,
562 U.S. 223 (2011) .............................................................................................................. 50
Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co.,
173 F.3d 725 (9th Cir. 1999) ................................................................................................ 74
Continental Airlines, Inc. v. Intra Brokers, Inc.,
24 F.3d 1099 (9th Cir. 1994) ................................................................................................ 92

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Cook, Perkiss, and Liehe, Inc. v. N. Cal. Collection Serv.,
911 F.2d 242 (9th Cir. 1990) ................................................................................................ 75
Corr. Servs. Corp. v. Malesko,
534 U.S. 61 (2001) ................................................................................................................ 68
Davis v. Passman,
442 U.S. 228 (1979) .............................................................................................................. 68

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Davis v. Wyeth Laboratories,
399 F.2d 121 (9th Cir. 1968) ................................................................................................ 50
Del’s Big Saver Foods, Inc. v. Carpenter Cook, Inc.,
795 F.2d 1344 (7th Cir. 1986) .............................................................................................. 72
Dodds v. Am. Broad. Co.,
145 F.3d 1053 (9th Cir. 1998) ........................................................................................ 82, 84
Elrod v. Burns,
427 U.S. 347 (1976) .............................................................................................................. 92
Fair Hous. Council v. Roommates.com, LLC,
521 F.3d 1157 (9th Cir. 2008) (en banc) ........................................................................ 22, 86
Fed. Agency of News LLC v. Facebook, Inc.
2020 U.S. Dist. LEXIS 6159 (N.D. Cal. 2020) .............................................................. 69, 70
Fonda v. Gray,
707 F.2d 435 (9th Cir. 1983) ................................................................................................ 71
Fraley v. Facebook,
830 F. Supp. 2d 785 (N.D. Cal. 2011) ............................................................................ 62, 86

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Franklin v. Fox,
312 F.3d 423 (9th Cir. 2002) ................................................................................................ 69
Freedman v. Maryland,
380 U.S. 51 (1965) ................................................................................................................ 68
Garrison v. Louisiana,
379 U.S. 64 (1964) ............................................................................................................ 4, 84
Gorenc v. Salt River Project Agric. Improvement & Power Dist.,
869 F.2d 503 (9th Cir. 1989) ................................................................................................ 69

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Grasshopper House, LLC v. Clean & Sober Media LLC,
394 F. Supp. 3d 1073 (C.D. Cal. 2019) ................................................................................ 74
Grosjean v. American Press Co.,
297 U.S. 233 (1936) ............................................................................................................ 2, 3
Hanover Star Milling Co. v. Metcalf,
240 U.S. 403 (1916) .............................................................................................................. 50

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Harmoni Int’l Spice, Inc. v. Hume,
914 F.3d 648 (9th Cir. 2019) ................................................................................................ 91
Harte-Hanks Communication, Inc. v. Connaughton,
491 U.S. 657 (1989) .............................................................................................................. 84
Herbert v. Lando,
441 U.S. 153 (1979) .............................................................................................................. 84
In re Chrysler-Dodge-Jeep EcoDiesel Mktg., Sales Practices & Prods. Liab. Litig.
295 F. Supp. 3d 927 (N.D. Cal. 2018) .................................................................................. 91
Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974) .............................................................................................................. 71
Kaiser Foundation Health Plan, Inc. v. Pfizer, Inc. (In re Neurontin Mktg. &
Sales Practices Litig.),
712 F.3d 21 (1st Cir. 2013) ................................................................................................... 91
Kelly v. United States,
140 S. Ct. 1565 (2020) .......................................................................................................... 50
Knievel v. ESPN,
393 F.3d 1068 (9th Cir. 2005) .................................................................................. 78, 79, 81
Lexmark International, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 134 S. Ct. 1377 (2014) ................................................................................... 50
Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982) .............................................................................................................. 69
Manhattan Cmty. Access Corp. v. Halleck,
139 S. Ct. 1921 (2019) .......................................................................................................... 69
Manufactured Home Communities, Inc. v. County of San Diego,
544 F.3d 959 (9th Cir. 2008) ................................................................................................ 82

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Masson v. New Yorker Magazine, Inc.,
501 U.S. 496 (1991) ............................................................................................ 80, 82, 83, 84
Mendoza v. Zirkle Fruit Co.,
301 F.3d 1163 (9th Cir. 2002) .............................................................................................. 91
Metabolife Int’l Inc. v. Wornick,
264 F.3d 832 (9th Cir. 2001) .......................................................................................... 82, 85

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Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) ...................................................................................................... 77, 82, 83
Nat’l Collegiate Athletic Ass’n. v. Tarkanian,
488 U.S. 179, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988) ...................................................... 71
National Organization for Women, Inc. v. Schiedler,
510 U.S. 249 (1994) .............................................................................................................. 88
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) .............................................................................................................. 77
Newton v. National Broadcasting Co., Inc.,
930 F.2d 662 (9th Cir. 1990) ................................................................................................ 84
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ............................................................................................................ 5
Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986) .............................................................................................................. 84
Phillips v. Washington Legal Foundation,
524 U.S. 156 (1998) .............................................................................................................. 72

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Rent-A-Ctr., Inc. v. Canyon TV and Appliance Rental, Inc.,
944 F.2d 597 (9th Cir. 1991) ................................................................................................ 92
Resolute Forest Prods. v. Greenpeace Int’l.,
2019 U.S. Dist. LEXIS 10263 (N.D. Cal. 2019) .................................................................. 91
Rice v. Fox Broad Co.,
33 F.3d 1170 (9th Cir. 2003) ................................................................................................ 74
River City Mkts., Inc. v. Fleming Foods W., Inc.,
960 F.2d 1458 (9th Cir. 1992) .............................................................................................. 88

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Sambreel Holdings LLC v. Facebook, Inc.,
906 F. Supp. 2d 1070 (S.D. Cal. 2016) ................................................................................. 22
Speiser v. Randall,
357 U.S. 513 (1958) .............................................................................................................. 68
St. Amant v. Thompson,
390 U.S. 727 (1968) .............................................................................................................. 84

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Tsao v. Desert Palace, Inc.,
698 F.3d 1128 (9th Cir. 2012) .............................................................................................. 68
United Keetoowah Band of Cherokee Indians in Okla. v. FCC,
933 F.3d 728 (D.C. Cir. 2019) ........................................................................................ 55, 56
United States v. Reyes,
660 F.3d 454 (9th Cir. 2011) ................................................................................................ 89
Villegas v. Gilroy Garlic Festival Ass’n,
541 F.3d 950 (9th Cir. 2008) (en banc) ................................................................................ 69

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Xcentric Ventures, LLC v. Borodkin,
798 F.3d 1201 (9th Cir. 2015) .............................................................................................. 91

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California Cases

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Bently Reserve LP v. Papaliolios,
218 Cal. App. 4th 418 (2013) ............................................................................................... 79

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Carney v. Santa Cruz Women Against Rape,
221 Cal. App. 3d 1009 (1990) .............................................................................................. 77
Couch v. San Juan Unified Sch. Dist.,
33 Cal.App.4th 1491 (1995) ................................................................................................. 82

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Ferlauto v. Hamsher,
74 Cal. App. 4th 1294 (1999) ............................................................................................... 79
Gilbert v. Sykes,
147 Cal. App. 4th 13 (2007) ................................................................................................. 77
Gomes v. Fried,
136 Cal. App. 3d 924 (1982) ................................................................................................ 78

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Graybill v. De Young,
140 Cal. 323 (1902) .............................................................................................................. 85
Hecimovich v. Encinal Sch. Parent Teacher Org.,
203 Cal. App. 4th 450 (2012) ............................................................................................... 77
MacLeod v. Tribune Publishing Co.,
52 Cal. 2d 536 (1959) ........................................................................................................... 81

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Ringler Associates, Inc. v. Maryland Casualty Co.,
80 Cal. App.4th 1165 (2000) ................................................................................................ 81
Rosenberg v. J.C. Penney Co.,
30 Cal. App. 2d 609 (1939) ............................................................................................ 82, 83
Selleck v. Globe International, Inc.,
166 Cal. App. 3d 1123 (1985) .............................................................................................. 79
Slaughter v. Friedman,
32 Cal. 3d 149 (1982) ........................................................................................................... 83

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Vedovi v. Watson & Taylor,
104 Cal. App. 80 (1930)........................................................................................................ 79

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United States Constitution

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First Amendment........................................................................................................ 2, passim
Fifth Amendment ............................................................................................ 5, 67, 68, 72, 73
Fourth Amendment ............................................................................................................... 68
Federal Statutes
15 U.S.C.
§ 1125(a) ........................................................................................................................... 5, 73
§ 1125(a)(1)(B) ..................................................................................................................... 73

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18 U.S.C.
§ 1343 .............................................................................................................................. 88, 89
§ 1951 .................................................................................................................................... 90
§ 1951(2) ............................................................................................................................... 90
§ 1961(1)(B) .................................................................................................................... 88, 90
§ 1961(3) ................................................................................................................................. 7
§ 1961(4) ............................................................................................................................... 88
§ 1962(c) ................................................................................................................... 87, 88, 90
§ 1964(a) ........................................................................................................................... 5, 67
§ 1964(c) ........................................................................................................... 5, 6, 67, 88, 91
§ 1965(a) ................................................................................................................................. 5
26 U.S.C.
§ 501(c)(3)............................................................................................................................... 6
28 U.S.C.
§ 1331 ................................................................................................................................ 5, 68
§ 1332(a) ................................................................................................................................. 5
§ 1391(b) ................................................................................................................................. 5
§ 2201 ...................................................................................................................................... 5
§ 2201(a) ............................................................................................................................... 92
§ 2202 ...................................................................................................................................... 5
42 U.S.C.
§§ 300aa-1 - 300aa-34........................................................................................................... 50
§ 300aa-11 ............................................................................................................................. 50
§ 300aa-12 ............................................................................................................................. 52
§ 300aa-27 ............................................................................................................................. 52
§ 300aa-27(a) ........................................................................................................................ 51
§ 1983 .................................................................................................................................... 68
47 U.S.C.
§ 230 ................................................................................................................ 2, 20, 71, 86, 87
§ 230(c)(1)....................................................................................................................... 18, 86
§ 230(c)(2)(A) ................................................................................................................. 18, 86
§ 230(f)(3) ............................................................................................................................. 86

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California Statutes

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California Civil Code
§ 45 ........................................................................................................................................ 77
§ 45a ...................................................................................................................................... 77
§ 48a ...................................................................................................................................... 78
§ 48a (a) ................................................................................................................................ 85
§ 48a (d)(5)............................................................................................................................ 85
§ 1668 .................................................................................................................................... 13
§ 659641.1 (f) ........................................................................................................................ 58

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Federal Rules of Civil Procedure
Rule 9(b) ............................................................................................................................... 90

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Electronic and Web Sources

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2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS AND
BIDS, https://www.govcb.com/government-bids/vaccines-for-childrenNBD00159022703927119.htm (last accessed Aug. 15, 2020) ............................................. 51

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2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS,
https://www.governmentcontracts.us/government-contracts/opportunitydetails/NBD00159991194385117.htm (last accessed Aug. 15, 2020) ................................. 51

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5G, WIKIPEDIA, https://en.wikipedia.org/wiki/5G (last accessed Aug. 14, 2020) ..................... 56

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A Rationale for Biologically-based Public Exposure Standards for
Electromagnetic Fields (Extremely Low Frequency and Radio Frequency),
BIO-INITIATIVE REPORT, https://bioinitiative.org/ ................................................................ 56
About A/B Testing, Business Help Center, FACEBOOK FOR BUSINESS,
https://www.facebook.com/business/help/1738164643098669?id=445653312
788501 (last accessed Aug. 14, 2020) .................................................................................. 43
About, 5G APPEAL, http://www.5gappeal.eu/about/ (last accssed Aug. 14, 2020) .................... 59

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Adam Burt, Can Facebook Ever Be Fixed?, HARVARD BUSINESS REVIEW (April
8, 2019), https://hbr.org/2019/04/can-facebook-ever-be-fixed............................................. 75
Alexis C. Madrigal & Robinson Meyer, How Could the CDC Make That
Mistake?, THE ATLANTIC (May 21, 2020),
https://www.theatlantic.com/health/archive/2020/05/cdc-and-states-aremisreporting-covid-19-test-data-pennsylvania-georgia-texas/611935/ ................................ 54

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Andrew Ward, Vaccines are among big pharma’s best-selling products,
FINANCIAL TIMES (Apr. 24, 2016), https://www.ft.com/content/93374f4ae538-11e5-a09b-1f8b0d268c39 ............................................................................................ 54
Anonymous – Facebook, PROJECT VERITAS (Apr. 6, 2020),
https://www.projectveritas.com/news/anonymous-facebook/ .............................................. 43
Basic Documents, WORLD HEALTH ORGANIZATION (49th Ed. 2020),
https://apps.who.int/gb/bd/pdf_files/BD_49th-en.pdf#page=1 ...................................... 20, 69
Belyaev I, Dean A, Eger H, et al., EUROPAEM EMF Guideline 2016 for the
prevention, diagnosis and treatment of EMF-related health problems and
illnesses, REV. ENVIRON HEALTH. 2016, 31(3), 363-397,
https://pubmed.ncbi.nlm.nih.gov/27454111/ ........................................................................ 56
Beth Snyder Bulik, Bayer blazes new trails for pharma with Betaseron Facebook
ad, FIERCEPHARMA (Oct. 30, 2016),
https://www.fiercepharma.com/marketing/bayer-s-first-facebook-adcampaign-features-first-scrolling-isi-a-pharma-ad-facebook-ad .......................................... 62

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Bijan Khosravi, Facebook’s New Focus On 5G and Golden Opportunity for
Entrepreneurs, FORBES (Apr. 30, 2018), https://www.forbes.com/sites/
bijankhosravi/2018/04/30/todays-black-clouds-over-facebook-will-part-lookat-their-golden-ideas-in-5g/#37c15fdd313b ......................................................................... 65
California Medical Association House of Delegates Resolution, Wireless
Standards Reevaluation, 2014 Resolution 107, CALIFORNIA MEDICAL
ASSOCIATION (adopted Dec. 7, 2014),
https://ecfsapi.fcc.gov/file/1092989731923/30-Attachment%2030%20California%20Medical%20Association%20Resolution.pdf ......................................... 58
Carl Elliott, An Ethical Path to a Covid Vaccine, NEW YORK REVIEW OF BOOKS
(July 20, 2020), https://www.nybooks.com/articles/2020/07/02/ethical-pathcovid-19-vaccine/ .................................................................................................................. 54
CDC and WHO Corrupt Financial Entanglements with the Vaccine Industry [and
other articles], CHILDREN’S HEALTH DEFENSE,
https://childrenshealthdefense.org/cdc-who/ (last accessed Aug. 14, 2020) ........................ 11
CDPH Issues Guidelines on How to Reduce Exposure to Radio Frequency
Energy from Cell Phones, Office of Public Affairs, CALIF. DEPT. OF PUBLIC
HEALTH, (Dec. 13, 2017),
https://www.cdph.ca.gov/Programs/OPA/Pages/NR17-086.aspx ........................................ 58

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Children’s Health Defense page, FACEBOOK,
https://www.facebook.com/ChildrensHealthDefense (last accessed Aug. 15,
2020) ..................................................................................................................................... 79

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Christina D.Bethell, PhD, et al., A National and State Profile of Leading Health
Problems and Health Care Quality for US Children: Key Insurance
Disparities and Across-State Variations, ACADEMIC PEDIATRICS, Volume 11,
Issue 3, Supplement, May–June 2011, pp. S22-S33,
https://www.sciencedirect.com/science/article/pii/S1876285910002500 ............................ 53
Christopher Yasiejko & Sarah Frier, Facebook’s Augmented Reality Push Causes
Leap in U.S. Patents, BLOOMBERG (Jan. 14, 2020),
https://www.bloomberg.com/news/articles/2020-01-14/facebook-s-leap-in-us-patents-hints-at-eye-on-virtual-reality ............................................................................... 66

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Combatting Vaccine Misinformation, FACEBOOK,
https://about.fb.com/news/2019/03/ combatting-vaccine-misinformation (last
visited Aug 14, 2020) .......................................................................................... 19, 21, 40, 70
Community Standards, FACEBOOK,
https://www.facebook.com/communitystandards/ (last visited Aug. 14, 2020) ..................... 3
CZI Announces the Chan Zuckerberg Biohub, CHAN ZUCKERBERG INITIATIVE
(Sept. 23, 2016), https://chanzuckerberg.com/newsroom/czi-announces-thechan-zuckerberg-biohub/ ...................................................................................................... 64
D. Tachover, CHD Statement on 5G and Coronavirus, CHILDREN’S HEALTH
DEFENSE (Apr. 10, 2020), https://childrenshealthdefense.org/news/chdstatement-on-5g-and-coronavirus/ ........................................................................................ 12
Data & Statistics, HEALTH RESOURCES & SERVICES ADMINISTRATION (May 1,
2019), https://www.hrsa.gov/sites/default/files/hrsa/vaccinecompensation/data/monthly-stats-may-2019.pdf .................................................................. 53

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23
24
25
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Donie O’Sullivan & Brian Fung, Mark Zuckerberg tries to explain his inaction
on Trump posts to outraged staff, CNN BUSINESS (Jun. 2, 2020),
https://www.cnn.com/2020/06/02/tech/facebook-all-hands-trump/index.html .................... 61
Elizabeth Dwoskin, Zuckerberg defends decisions on Trump as Facebook
employee unrest grows, WASHINGTON POST (Jun. 2, 2020),
https://www.sfgate.com/news/article/Zuckerberg-defends-decisions-onTrump-as-Facebook-15311764.php ...................................................................................... 61

28

xii

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 14 of 115

1
2

Emily Atkin, Facebook creates fact-checking exemption for climate deniers,
HEATED (Jun. 24, 2020), https://heated.world/p/facebook-creates-factchecking-exemption ........................................................................................................ 24, 48

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Entire CNN April 16 Coronavirus Town Hall [Video], CNN BUSINESS (Apr. 17,
2020), https://www.cnn.com/videos/business/2020/04/17/entire-april-16coronavirus-town-hall-part-5-sot-vpx.cnn ................................................................ 26, 29, 43
Eric Lipton, et al., The CDC waited ‘its entire existence for this moment.’ What
went wrong?, NEW YORK TIMES (Jun. 2, 2020),
https://www.sfgate.com/news/article/The-CDC-Waited-Its-Entire-Existencefor-This-15312642.php ......................................................................................................... 55
Executive Order on Preventing Online Censorship, Executive Orders, THE
WHITE HOUSE (May 28, 2020), https://www.whitehouse.gov/presidentialactions/executive-order-preventing-online-censorship/ ........................................................ 87
Facebook CEO Testimony Before House Financial Services Committee [Video],
C-SPAN (Oct. 23, 2019), https://www.c-span.org/video/?465293-1/facebookceo-testimony-house-financial-services-committee ............................................................. 60
Facebook Is Changing News Feed (Again) to Stop Fake News, WIRED (Apr. 10,
2019), https://www.wired.com/story/facebook-click-gap-news-feed-changes/ ................... 44
Fact-Checking on Facebook, Business Help Center, FACEBOOK FOR BUSINESS,
https://www.facebook.com/help/publisher/182222309230722 (last accessed
Aug. 14, 2020) ...................................................................................................................... 47
Falcioni L, Bua L, Tibaldi E, et al., Report of final results regarding brain and
heart tumors in Sprague-Dawley rats exposed from prenatal life until natural
death to mobile phone radiofrequency field representative of a 1.8 GHz GSM
base station environmental emission, ENVIRON RES. 2018; 165:496-503,
https://pubmed.ncbi.nlm.nih.gov/29530389/ ........................................................................ 57

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Frequently Asked Questions, National Vaccine Injury Compensation Program,
HEALTH RESOURCES & SERVICES ADMINISTRATION,
https://www.hrsa.gov/vaccine-compensation/FAQ/index.html (last accessed
Aug. 14, 2020) ...................................................................................................................... 52
Hearing by Congress on “deepfakes” and artificial intelligence [Video],
GUARDIAN NEWS (June 13, 2019),
https://www.youtube.com/watch?v=lArPEDS0GTA ........................................................... 14

28

xiii

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 15 of 115

1
2

Henry, C., Facebook willing to invest in satellite user equipment, SPACE NEWS
(March 8, 2017 (https://spacenews.com/facebook-willing-to-invest-insatellite-user-equipment/ ....................................................................................................... 66

3
4
5
6

High Exposure to Radio Frequency Radiation Associated With Cancer in Male
Rats, NATIONAL INSTITUTE OF ENVIRONMENTAL HEALTH SCIENCES (Nov. 1,
2018), https://www.niehs.nih.gov/news/newsroom/releases/2018/november1/
index.cfm ............................................................................................................................... 57

7

https://childrenshealthdefense.org ................................................................................................ 6

8

Indefinite Delivery Contract 75D30119D04518, Federal Contract IDV Award,
GOVTRIBE (Jun. 29, 2020), https://govtribe.com/award/federal-idvaward/indefinite-delivery-contract-75d30119d04518 .......................................................... 51

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Infectious Disease Initiative, CHAN ZUCKERBERG BIOHUB,
https://www.czbiohub.org/projects/ infectious-disease/ (last accessed Aug.
15, 2020) ............................................................................................................................... 64
Information, Merrian-Webster.com, https://www.merriamwebster.com/dictionary/information (last accessed Aug. 14, 2020) ..................................... 21
Institute of Medicine, Childhood Immunization Schedule and Safety: Stakeholder
Concerns, Scientific Evidence, and Future Studies, NATIONAL ACADEMIES
PRESS (2013), pp. 5-6, https://doi.org/10.17226/13563 ........................................................ 53
Jessi Hempel, Inside Facebook’s Ambitious Plan to Connect the Whole World,
WIRED (Jan. 19, 2016), https://www.wired.com/2016/01/facebookzuckerberg-internet-org/........................................................................................................ 66
Joel M. Moskowitz, We Have No Reason to Believe 5G Is Safe, SCIENTIFIC
AMERICAN (Oct. 17, 2019),
https://blogs.scientificamerican.com/observations/we-have-no-reason-tobelieve-5g-is-safe/ ................................................................................................................. 57
Jon Russell, Facebook is reportedly testing solar-powered internet drones again
— this time with Airbus, TECHCRUNCH (Jan. 21, 2019),
https://techcrunch.com/2019/01/21/ facebook-airbus-solar-drones-internetprogram/?guccounter=1 ........................................................................................................ 67

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VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 16 of 115

1
2
3
4

Josh Dawsey, Ashley Parker, Philip Rucker and Yasmeen Abutaleb, As deaths
mount, Trump tries to convince Americans it’s safe to inch back to normal,
WASHINGTON POST (May 9, 2020),
https://www.washingtonpost.com/politics/as-deaths-mount-trump-tries-toconvince-americans-its-safe-to-inch-back-to-normal/2020/05/09/bf024fe69149-11ea-a9c0-73b93422d691_story.html ......................................................................... 55

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8
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K. Waddell, A new attack on social media’s immunity, AXIOS (June 13, 2019),
https://www.axios.com/social-media-immunity-section-230-f15ac071-32e94e33-81e6-4c7ebadaea5e.html .............................................................................................. 14
Katie Collins, Facebook and partners collaborate to bring 5G wireless internet
to California homes, CNET, https://www.cnet.com/news/facebook-bringsfaster-than-fiber-5g-wireless-connectivity-to-california/ ..................................................... 65

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Largest funders of Poynter, POYNTER (last updated June 2020),
https://www.poynter.org/major-funders/ ................................................................................ 8
Leo Sun, Will Facebook Redefine Augmented Reality With Stella and Orion?,
MOTLEY FOOL (Sept. 20, 2019),
https://www.fool.com/investing/2019/09/20/will-facebook-redefineaugmented-reality-with-stel.aspx .......................................................................................... 66

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Letter to Facebook, CHILDREN’S HEALTH DEFENSE (March 4, 2019),
https://childrenshealthdefense.org/wp-content/uploads/FINAL-CHD-Letterto-Facebook-1.pdf ................................................................................................................. 17
M. Fisher, Inside Facebook’s Secret Rulebook for Global Political Speech, NEW
YORK TIMES (Dec. 27, 2018),
https://www.nytimes.com/2018/12/27/world/facebook-moderators.html ...................... 45, 46
M. Zuckerberg, Facebook’s commitment to the Oversight Board, FACEBOOK
(Sept. 2019), https://about.fb.com/wp-content/uploads/2019/09/letter-frommark-zuckerberg-on-oversight-board-charter.pdf ................................................................ 24
Mark Harris, Facebook May Have Secret Plans to Build a Satellite-Based
Internet, IEEE (May 2, 2018), https://spectrum.ieee.org/techtalk/aerospace/satellites/facebook-may-have-secret-plans-to-launch-ainternet-satellite ..................................................................................................................... 66

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VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 17 of 115

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Master Manipulator: The Explosive True Story of Fraud, Embezzlement, and
Government Betrayal at the CDC, Store, CHILDREN’S HEALTH DEFENSE,
https://childrenshealthdefense.org/store/master-manipulator-the-explosivetrue-story-of-fraud-embezzlement-and-government-betrayal-at-the-cdc/ (last
visited Aug 14, 2020) ............................................................................................................ 11
Mike Isaac, Sheera Frenkel & Cecilia Kang, Now More Than Ever, Facebook Is
a ‘Mark Zuckerberg Production,’ NEW YORK TIMES (May 16, 2020),
https://www.nytimes.com/2020/05/16/technology/zuckerberg-facebookcoronavirus.html ................................................................................................................... 46
Natasha Tiku, Facebook has a prescription: More pharmaceutical ads,
WASHINGTON POST (Mar. 3, 2020),
https://www.washingtonpost.com/technology/2020/03/03/facebook-pharmaads/ ........................................................................................................................................ 63
Non-ionizing Radiation, Part 2: Radiofrequency Electromagnetic Fields, IARC
Monographs on the Evaluation of Carcinogenic Risks to Humans Volume
102, IARC Publications, INTERNATIONAL AGENCY FOR RESEARCH ON
CANCER, WORLD HEALTH ORGANIZATION, https://publications.iarc.fr/126........................ 57
R. Cheng, Facebook will use machine learning to fight fake news, CNET (Aug. 3,
2017), https://www.cnet.com/news/facebook-will-use-machine-learning-tofight-fake-news/ .................................................................................................................... 44
Rachel Sandler, Zuckerberg Criticizes Twitter For Fact-Checking Trump Tweets,
FORBES (May 27, 2020), https://www.forbes.com/sites/rachelsandler/
2020/05/27/zuckerberg-criticizes-twitter-for-fact-checking-trumptweets/#2aec97616f7a ........................................................................................................... 60
Reliable, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/reliable (last accessed Aug. 15, 2020)............................................ 79
Reliable, Merriam-Webster.com, Thesaurus, https://www.merriamwebster.com/thesaurus/reliable (last accessed Aug. 15, 2020) ............................................. 80
Research Articles and Opinion pieces, Children’s Health Defense,
https://childrenshealthdefense.org/ category/news/childrens-health/ ..................................... 6
Research Resources and Critiques, CHILDREN’S HEALTH DEFENSE,
https://childrenshealthdefense.org/advocacy-policy/critiques/ (last accessed
Aug. 14, 2020) ........................................................................................................................ 9

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xvi

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 18 of 115

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S. Keach, Facebook’s 5G fake news poses ‘risk of immediate physical harm’,
Zuckerberg warns, IRISH SUN (May 21, 2020),
https://www.thesun.ie/tech/5453017/ facebook-5g-fake-news-markzuckerberg-physical-harm-masts-burning/ ........................................................................... 21
Schiff Sends Letter to Google, Facebook Regarding Anti-Vaccine
Misinformation, News/Press Releases, CONGRESSMAN ADAM SCHIFF (Feb.
14, 2019), https://schiff.house.gov/news/press-releases/schiff-sends-letter-togoogle-facebook-regarding-anti-vaccine-misinformation .................................................... 14
Scientists call for Protection from Non-ionizing Electromagnetic Field Exposure,
EMF SCIENTIST, https://www.emfscientist.org/index.php/emf-scientist-appeal
(last accessed Aug. 14, 2020) ............................................................................................... 58
Stipulated Order, U.S.D.C. S.D. N.Y. No. 18-cv-03215 (JMF) (filed Jul. 9, 2018)
& Press Release, INFORMED CONSENT ACTION NETWORK (ICAN) (Jul. 13,
2018), https://www.icandecide.org/wp-content/uploads/2019/09/StipulatedOrder-copy-1.pdf................................................................................................................... 52
Students with Disabilities, NATIONAL CENTER FOR EDUCATION STATISTICS (May
2020), https://nces.ed.gov/programs/coe/indicator_cgg.asp ................................................. 53
Sundeep Rangan, Theodore S. Rappaport & Elza Erkip, Millimeter-Wave
Cellular Wireless Networks: Potentials and Challenges, PROCEEDINGS OF
THE IEEE | Vol. 102, No. 3, March 2014,
https://ecfsapi.fcc.gov/file/60001013329.pdf ....................................................................... 55
Susanna N. Visser, MS et al., Trends in the Parent-Report of Health Care
Provider-Diagnosed and Medicated Attention-Deficit/Hyperactivity
Disorder: United States, 2003–2011, JOURNAL OF THE AMERICAN ACADEMY
OF CHILD & ADOLESCENT PSYCHIATRY, Volume 53 Number 1 (January
2014), https://jaacap.org/article/S0890-8567(13)00594-7/fulltext ....................................... 53
T. Staton, The top 10 pharma companies in social media, FIERCEPHARMA,
https://www.fiercepharma.com/special-report/top-10-pharma-companiessocial-media-0 (last accessed Aug. 14, 2020) ....................................................................... 27
The 5G Crisis: Awareness & Accountability,” CHILDREN’S HEALTH DEFENSE
(Dec. 21, 2019), https://childrenshealthdefense.org/video/the-5g-crisisawareness-accountability/ ..................................................................................................... 12
The Chan Zuckerberg Biohub: Seeking to Cure All Diseases, BIOLEGEND BLOG,
https://www.biolegend.com/ja-jp/blog/the-chan-zuckerberg-biohub-seekingto-cure-all-diseases (last accessed Aug. 15, 2020) ............................................................... 65

xvii

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 19 of 115

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The Internet of Things will thrive on 5G technology, VERIZON (Jun. 12, 2018),
https://www.verizon.com/about/our-company/5g/internet-things-will-thrive5g-technology........................................................................................................................ 67
Tiffany Hsu & Cecilia Kang, “Morally Impossible”: Some Advertisers Take a
Timeout From Facebook, NEW YORK TIMES (Jun. 9, 2020),
https://www.nytimes.com/2020/06/09/business/media/facebook-advertiserstrump-zuckerberg.html?searchResultPosition=2 .................................................................. 62
Tom Taulli, Facebook AI (Artificial Intelligence): Will M&A Help?, FORBES
(Feb. 15, 2020),
https://www.forbes.com/sites/tomtaulli/2020/02/15/facebook-ai-artificialintelligence-will-ma-help/#104eed427664 ........................................................................... 67
United States Patent No. 10,356,024, Kanter et al. (Moderating content in an
online forum), USPTO Patent Full-Text and Image Database, UNITED STATES
PATENT AND TRADEMARK OFFICE (Jul 16, 2019),
http://patft.uspto.gov/netacgi/nphParser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/searchbool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024
(last accessed Aug. 15, 2020) ............................................................................................... 40
Up-to-date, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/up-to-date (last accessed Aug. 15, 2020) ....................................... 80
Up-to-date, Merriam-Webster.com, Thesaurus, https://www.merriamwebster.com/thesaurus/up-to-date (last accessed Aug. 15, 2020) ........................................ 80
Vaccine Injury Compensation Program: Addressing Needs and Improving
Practices, Sixth Report by the Committee on Government Reform, Union
Calendar No. 575, 106th Congress, 2d Session, House Report 106–977,
HOUSE COMMITTEE ON GOVERNMENT REFORM HEARINGS (Oct. 12, 2000),
https:///www.congress.gov/106/crpt/hrpt977/CRPT-106hrpt977.pdf .................................. 52
Vaccine Misinformation: Statement by WHO Director-General on Facebook and
Instagram, WORLD HEALTH ORGANIZATION (Sept. 4, 2019),
https://www.who.int/news-room/detail/04-09-2019-vaccine-misinformationstatement-by-who-director-general-on-facebook-and-instagram ............................. 19, 25, 70
Vaccines Market - Global Forecast to 2024, MARKETSANDMARKETS (January
2020), https://www.marketsandmarkets.com/Market-Reports/vaccinetechnologies-market-1155.html ............................................................................................ 54

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VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 20 of 115

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Vaccines Market Size, Share & Industry Analysis, 2020-2027, FORTUNE
BUSINESS INSIGHTS, https://www.fortunebusinessinsights.com/industryreports/vaccines-market-101769 (last accessed Aug. 14, 2020)........................................... 54

3
4
5
6

Vann. R. Newkirk II, Is the CDC Losing Control?, THE ATLANTIC (Feb. 3,
2018), https://www.theatlantic.com/politics/archive/ 2018/02/cdc-scandalpreparedness-budget/552200/ ............................................................................................... 54

7

Who pays for PolitiFact?, POLITIFACT (last updated June 2020),
https://www.politifact.com/who-pays-for-politifact/ .............................................................. 8

8

Miscellaneous Authorities

9
10

2 J. Story, Commentaries on the Constitution of the United States,
§ 1882 (5th ed. 1891) .............................................................................................................. 2

11

50 Am. Jur. 2d, § 455 ................................................................................................................. 84

12

Bill of Rights ................................................................................................................................ 2

13

Black’s Law Dictionary 1421 (5th ed. 1979) ............................................................................. 76

14
15

Constitution of World Health Organization, Article 71 ....................................................... 19, 69

16

Executive Order on Preventing Online Censorship, § 2 (a) ....................................................... 86

17

F. Siebert, Freedom of the Press in England 1476-1776 (1965) ................................................. 2

18

Facebook’s Terms of Service ....................................................................................................... 6
¶ 1 .......................................................................................................................................... 13
¶ 3(1) ..................................................................................................................................... 13
¶ 3(2)(1)................................................................................................................................. 13
¶ 3(2)(3)................................................................................................................................. 13
¶ 4(3) ..................................................................................................................................... 13
¶ 3(2)(1) ................................................................................................................................ 13

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Institute of Medicine, Adverse Events Associated with Childhood Vaccines:
Evidence Bearing on Causality (1994) ................................................................................. 50
L. Levy, Emergence of a Free Press 6 (1985) ............................................................................. 2
RESTATEMENT (2D) OF TORTS § 563(d) ..................................................................................... 78

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xix

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 21 of 115

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ROGER I. TEICH
California State Bar No. 147076
290 Nevada Street
San Francisco, CA 94110
Telephone: [phone]
E-Mail Address: [e-mail]
ROBERT F. KENNEDY, JR.
MARY HOLLAND
Children’s Health Defense
1227 North Peachtree Parkway, Suite 202
Peachtree City, GA 30269
Telephone: [phone]
E-Mail Address: [e-mail]
Attorneys for Plaintiff
CHILDREN’S HEALTH DEFENSE

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

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15
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CHILDREN’S HEALTH DEFENSE,
a Georgia non-profit organization,

17

Case No. _________________________
Plaintiff,

18
19
20
21
22
23
24
25

VERIFIED COMPLAINT
v.
FACEBOOK, INC., a Delaware corporation;
MARK ZUCKERBERG, a California resident;
SCIENCE FEEDBACK, a French corporation;
POYNTER INSTITUTE, a Florida corporation;
POLITIFACT, a Florida-corporation; and
DOES 1-20,

1) FIRST AND FIFTH AMENDMENTS
(BIVENS);
2) LANHAM ACT (15 U.S.C. § 1125(a));
3) RICO FRAUD (18 U.S.C. § 1962);
4) DECLARATORY RELIEF.
JURY TRIAL DEMAND

Defendants.

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1

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 22 of 115

1

Plaintiff Children’s Health Defense, by and through its undersigned attorneys, sues

2

defendants Facebook, Inc., Mark Zuckerberg, Science Feedback, Poynter Institute, Politifact,

3

and Does 1-20, and for its Complaint alleges on personal information as to itself and on

4

information and belief as to all other things:

5
6
7

INTRODUCTION
1.

This is a case about how an officer and an agency within the U.S. Government

8

“privatized” the First Amendment by teaming up with Facebook to censor speech which, under

9

the Bill of Rights, the Government cannot censor. In February 2019, Democratic Congressman

10

Adam Schiff (D-CA) threatened to introduce legislation to remove Facebook’s immunity under

11

Section 230 of the Communications Decency Act unless Facebook implemented algorithms to

12

“distinguish” and suppress “vaccine misinformation” and advertising. The Centers for Disease

13

Control and Prevention (“CDC”) and, under its aegis, the World Health Organization

14

(“WHO”) then collaborated at length with Facebook to suppress vaccine safety speech with a

15

“warning label” and other notices that appear to flag disinformation, but in reality censor valid

16

and truthful speech, including speech critical of those agencies and their policies. A judicial

17

remedy is urgently required to redress that system of prior restraint which will otherwise go

18

unredressed.

19

2.

In 17th-century England, government controlled speech through its monopoly on

20

printing presses. See L. Levy, Emergence of a Free Press 6 (1985). The first newspapers were

21

also met by licensing prosecutions of unlicensed news-sheet printers and the power of the

22

crown to grant privileges of monopoly. See F. Siebert, Freedom of the Press in England 1476-

23

1776 (1965); see also 2 J. Story, Commentaries on the Constitution of the United States,

24

§ 1882 (5th ed. 1891). Indeed, “history discloses a persistent effort on the part of the British

25

government to prevent or abridge the free expression of any opinion which seemed to criticize

26

or exhibit in an unfavorable light, however truly, the agencies and operations of the

27

government.” Grosjean v. American Press Co., 297 U.S. 233, 245 (1936).

28

2

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 23 of 115

1

3.

Here, government actors actively partnered with one of today’s leading “printing

2

presses” (Facebook) to censor Plaintiff’s speech critical of government policy. The framers

3

were familiar with the English struggle and enacted the First Amendment to establish and

4

preserve the right of the People to full information about the doings or misdoings of their

5

government. Grosjean, 297 U.S. at 247-49. This case mirrors the framers’ concerns. The

6

government cannot accomplish indirectly what the Constitution forbids it to do directly.

7

4.

This is also a case of corporate fraud against Facebook and its Chairman Mark

8

Zuckerberg, inter alia, for their smear campaign against Plaintiff consisting of false content

9

that Facebook itself created, as well as knowingly false suggestions, and other acts of fraud and

10

deception on or concerning Plaintiff’s Facebook page. At a time when the social media

11

platform and its creator claim to be exponents of free expression and the scientific method for

12

discovering truth, this case reveals the opposite: that they are indeed censors, and opponents of

13

real science and open debate.

14

5.

Children’s Health Defense (“CHD”) and its founder Robert F. Kennedy, Jr.

15

(“RFK, Jr.”) have built CHD’s good name and reputation as a public health advocate for

16

complete candor as to both the risks of environmental toxins, vaccines, 5G and wireless

17

networks, and the conflicts of interest in government oversight of those products and services.

18

Plaintiff’s online reputation is important to its standing as a preeminent leader in the health

19

reform movement. CHD seeks $5 million or more in treble and punitive damages against the

20

Facebook defendants for their deliberate use of the “known lie” to damage Plaintiff’s

21

reputation and organization.

22

6.

Facebook promotes itself as a social media website with 214 million users in the

23

United States and 2.2 billion worldwide. Of course, Facebook is not cost-free. The user incurs

24

the cost of having its information mined and shared. Bass v. Facebook, Inc., 394 F. Supp. 3d

25

1024, 1037 (N.D. Cal. 2019). Less well-known are Facebook’s efforts as a seller of

26

pharmaceutical ads, purveyor of global 5G and wireless networks and services, and developer

27

of vaccines. Facebook promotes itself as a service for people “to talk openly about the issues

28

that matter to them, even if some may disagree or find them objectionable.” Community

3

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 24 of 115

1

Standards, FACEBOOK, https://www.facebook.com/communitystandards/ (last visited Aug. 14,

2

2020). It does not say that it will censor and falsely disparage opposing viewpoints of the

3

health risks of those products and technologies through material misrepresentation and blatant

4

falsehood. Here, defendants’ big lie is that Plaintiff’s page contains “false information” that

5

poses a “risk of imminent violence or physical harm.” Nothing could be further from the truth.

6

7.

This case arises in a pandemic when the need for public debate on health issues

7

has never been greater. CHD’s vision is a world free of childhood chronic health conditions

8

caused by environmental exposures. Plaintiff highlights harms associated with the current

9

vaccine program, pesticides, and deployment of 5G and other wireless technologies.

10

Zuckerberg’s professed “moon shot mission” is “to cure all disease on the planet within the

11

Facebook chairman’s children’s lifetimes.” Yet, defendants’ first giant leap for humankind is

12

to censor CHD’s viewpoint which competes with Facebook’s business plan for pharmaceutical

13

ad revenue, vaccine development, and 5G and wireless networks. One may question on that

14

basis the sincerity of their vision in this and all things.

15

8.

Since September 2019, Facebook and Zuckerberg have falsely denigrated CHD

16

through a “warning label” on CHD’s page, which conveys a classic false imputation of

17

dishonesty in CHD’s trade. Since March 2019, with increasing frequency, Facebook and its

18

affiliated “fact-checkers” (their Orwellian term) have published “false information” tags on

19

CHD’s page, which materially misrepresent the accuracy of CHD’s own content.

20

9.

CHD seeks a potent remedy as antitoxin to Facebook’s toxic use of the “known

21

lie [which is] at once at odds with the premises of democratic government and with the orderly

22

manner in which economic, social, or political change is to be effected.” Garrison v.

23

Louisiana, 379 U.S. 64, 75 (1964) (“calculated falsehood [is] no essential part of any

24

exposition of ideas”); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

25

dissenting) (“The ultimate good desired is better reached by free trade in ideas -- … the best

26

test of truth is the power of the thought to get itself accepted in the competition of the

27

market”).

28

4

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 25 of 115

1

10.

In Packingham v. North Carolina, 137 S. Ct. 1730, 1735-36 (2017), Justice

2

Kennedy wrote of the potential harm that users of social media sites like Facebook can do, but

3

his words ring true of the “mastermind” of that platform:

12

In short, social media users employ these websites to engage
in a wide array of protected First Amendment activity on topics “as
diverse as human thought.” [. . .] While we now may be coming to
the realization that the Cyber Age is a revolution of historic
proportions, we cannot appreciate yet its full dimensions and vast
potential to alter how we think, express ourselves, and define who
we want to be. [. . .] the Court must exercise extreme caution
before suggesting that the First Amendment provides scant
protection for access to vast networks in that medium. [. . .] For
centuries now, inventions heralded as advances in human progress
have been exploited by the criminal mind. New technologies, all
too soon, can become instruments used to commit serious crimes.
[. . .] So it will be with the Internet and social media.

13

Id. at 1735-36 (emphases added). Now comes this case to fulfill Justice Kennedy’s prediction,

14

but with an unexpected twist. One of the titans of the internet age has exploited that new

15

technology as an instrument to commit fraud and censorship.

4
5
6
7
8
9
10
11

16
17
18

JURISDICTION AND VENUE
11.

This Court has personal jurisdiction over all defendants because they conducted

19

business with and injured Plaintiff in this District. Facebook itself is headquartered within the

20

District, which is also where the individual and at least some of the Doe defendants reside.

21

12.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal

22

question), § 1332(a) (complete diversity of the parties, and the amount in controversy exceeds

23

$75,000), § 2201 (declaratory relief), and § 2202 (further relief). The action asserts continuing

24

violations of the First and Fifth Amendments, 18 U.S.C. §§ 1964(a), (c) of the Racketeer

25

Influenced and Corrupt Organizations Act (“RICO”), and 15 U.S.C. § 1125(a) (Lanham Act),

26

and there is an actual case or controversy.

27
28

13.

Venue is proper under 18 U.S.C. §1965(a) and 28 U.S.C. § 1391(b) because

defendants transacted a substantial portion of their affairs and caused damages in this district.

5

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 26 of 115

1

Moreover, Facebook’s Terms of Service (“Terms”) to which Plaintiff agreed require that

2

disputes be resolved in this forum and that the laws of the State of California apply. Terms at ¶

3

4(4).

4
5

PARTIES AND RELATED ENTITIES
14.

Plaintiff Children’s Health Defense is a not-for-profit 26 U.S.C. § 501(c)(3)

6

membership organization incorporated under the laws of the State of Georgia, and

7

headquartered at 1227 North Peachtree Parkway, Suite 202, Peachtree City, Georgia 30269.

8

CHD was founded in 2015 (under a different name) to educate the public about the risks and

9

harmful effects of chemical exposures upon prenatal and children’s health, including from

10

particular vaccines and environmental health hazards, such as 5G and wireless networks and

11

products, and to advocate for social change both legislatively and through judicial action. The

12

organization is run by RFK, Jr. and a team comprised largely of mothers whose children

13

suffered serious adverse events after vaccination.

14

15.

As a publisher of information related to public health and reform, CHD operates

15

the https://childrenshealthdefense.org website, and publishes, inter alia, a “weekly wrap up”

16

with research articles and opinion pieces available at https://childrenshealthdefense.org/

17

category/news/childrens-health/. As set forth more fully infra, CHD and its founder and

18

chairman Robert F. Kennedy, Jr. are not “anti-vaccine.” Rather, they advocate for informed

19

patient consent based on full disclosure of all relevant medical information. CHD receives all

20

of its support from contributions, membership fees, and gross receipts from activities related to

21

its tax-exempt functions. In Tax Year 2018, CHD reported $1,063,837 in gifts, grants,

22

contributions, and membership fees received. CHD’s primary sources of revenue derive from

23

membership dues and donations that CHD solicits on its website and, formerly, on its

24

Facebook page. In addition to that monetary interest, attracting visitors to the CHD website and

25

its Facebook page enables CHD and RFK, Jr., CHD’s contributors, and its readers to associate

26

and engage in speech on matters of mutual concern. CHD has standing to bring suit as an

27

injured “person” under 18 U.S.C. § 1964(c).

28

6

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 27 of 115

1

16.

Defendant Facebook, Inc. is a Delaware corporation, with its principal place of

2

business in Menlo Park, California. Sometime in or around 2017, CHD executed Facebook’s

3

Terms in order to establish and maintain CHD’s Facebook page as a central clearinghouse for

4

CHD’s public health newsgathering and advocacy activities, and as a fundraising platform.

5

17.

Defendant Mark Zuckerberg is a co-founder of Facebook, Inc., and at all times

6

relevant hereto, has served as Facebook’s chairman, chief executive officer, and controlling

7

shareholder. He resides in the Northern District of California and is a “person” who may be

8

sued under 18 U.S.C. § 1961(3).

9

18.

Because Mr. Zuckerberg controls a majority of our outstanding
voting power, we are a “controlled company” under the corporate
governance rules of the NASDAQ Stock Market LLC (NASDAQ).
Therefore, we are not required to have a majority of our board of
directors be independent, nor are we required to have a
compensation committee or an independent nominating function.
In light of our status as a controlled company, our board of
directors has determined not to have an independent nominating
function and to have the full board of directors be directly
responsible for nominating members of our board.

10
11
12
13
14
15
16
17

According to Facebook’s 2017 Proxy Statement:

19.

According to its 2018 Proxy Statement, defendant Zuckerberg has the sole power

18

to elect or remove any director from Facebook’s Board, as he controls a majority (53.3%) of

19

Facebook’s total voting shares. Zuckerberg directs and controls Facebook’s business and is

20

personally responsible for the damages caused by his individual and controlled entities’

21

misconduct as set forth herein. Facebook and its related “fact-checker” entities are also sued

22

under principles of alter ego and respondeat superior liability.

23

20.

Defendant Science Feedback is a French non-profit organization to which

24

Facebook donates, and which Facebook has specifically engaged as a “fact-checker” to flag

25

selected content on CHD’s Facebook page as “false information,” insert oppositional articles in

26

its place on CHD’s page, and divert users from CHD’s own content on that false basis.

27
28

21.

Defendants The Poynter Institute for Media Studies (“Poynter”), and its wholly-

owned subsidiary Politifact, are Florida non-profit organizations which Facebook has engaged

7

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 28 of 115

1

as an additional “fact-checker” to flag selected content on CHD’s Facebook page as “false

2

information,” insert oppositional articles in its place on CHD’s page, and divert users from

3

CHD’s own content on that false basis. Facebook is a major donor to both Poynter and

4

Politifact. Largest funders of Poynter, POYNTER (last updated June 2020),

5

https://www.poynter.org/major-funders/; Who pays for PolitiFact?, POLITIFACT (last updated

6

June 2020), https://www.politifact.com/who-pays-for-politifact/.

7

22.

The Facebook corporate and individual defendants conspired with one another,

8

and others as yet unknown at Facebook, or elsewhere (the “Doe defendants”) in an informal

9

enterprise (the “content management enterprise”) to accomplish their common purposes. Each

10

of them was acting within the course and scope of that conspiracy, agency, partnership, or joint

11

venture. The acts and conduct of each of the defendants were known to and authorized by, or

12

ratified by, the other defendants.

13

23.

The informal enterprise operated by defendants had an ascertainable structure

14

separate and apart from the pattern of racketeering activity in which the defendants engage,

15

and from Facebook, Science Feedback, Poynter or Politifact, which are joined as corporate

16

defendants. The informal enterprise operated within one or both of those related structures as

17

an “enterprise” with a common purpose, structure or organization, and open-ended lifespan

18

necessary to accomplish their joint purposes to defraud CHD, destroy its reputation and

19

fundraising, and blunt the impact of its public health education and advocacy efforts.

20
21

STATEMENT OF MATERIAL FACTS

22

A.

CHD’s Interest in Vaccine and 5G and Wireless Network Safety.

23

24.

Robert F. Kennedy, Jr. is the founder and Chairman of the Board of CHD. For

24

over three decades, RFK, Jr. has been one of the world’s leading environmental advocates. He

25

is the founder and past president of Waterkeeper Alliance, the umbrella group for 300 local

26

waterkeeper organizations, in 34 countries, that track down and sue polluters. Under his

27

leadership, Waterkeeper has grown to become the world’s largest clean water advocacy

28

organization. RFK, Jr. founded CHD, in part, to address a void in scientific studies of, and

8

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 29 of 115

1

reform advocacy about, the environmental causes of pediatric neuro-developmental disorders

2

and food allergies.

3

25.

Since its founding, CHD has become a leading independent child health

4

protection and advocacy group. CHD fulfills a vital mission to provide the public with timely

5

and accurate vaccine and 5G and wireless technology safety information, particularly in the

6

absence of any appreciable ongoing HHS or CDC research, any congressional oversight to

7

“reduce the risks of adverse reactions to vaccines,” or any reliable pharmaceutical industry

8

research, or private tort remedy. See infra. CHD’s reputation depends on the credibility of its

9

science-based research articles, which explore both the known and presently-unknown public

10
11

health risks of vaccines and 5G and wireless technology, in the quest for objective truth.
26.

CHD’s mission is threefold: to end childhood epidemics by eliminating harmful

12

toxic exposures; to hold those accountable who knowingly allow children to be unnecessarily

13

exposed to dangerous toxins that destroy their health; and to establish greatly-needed

14

safeguards to prevent the devastation to children and families that these chronic illnesses cause.

15

CHD advocates for open and honest public debate on the efficacy and safety of the CDC’s

16

entire Child and Adolescent Immunization Schedule. CHD helps the public navigate the

17

“clutter” of the internet age by posting reliable and up-to-date content for its web traffic

18

viewers. Specifically, CHD publishes articles on its website on a weekly (or more frequent)

19

basis, which describe current scientific research on the potential health risks posed by various

20

environmental toxins, new technologies, and vaccines.

21

27.

CHD’s science-review articles contain hyperlinks to the referenced peer-

22

reviewed, published journals. See, generally, Research Resources and Critiques, CHILDREN’S

23

HEALTH DEFENSE, https://childrenshealthdefense.org/advocacy-policy/critiques/ (last accessed

24

Aug. 14, 2020). CHD prominently labels opinion pieces as such. CHD’s website also contains

25

a drop-down menu under the tag “Research” with links to its “Science Library.” CHD’s

26

“Science Library” features a searchable database with hundreds of peer-reviewed, published

27

articles on environmental contaminants, inter alia, of commercial vaccines, some of which

28

9

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 30 of 115

1

have been implicated in the rise of chronic illnesses and developmental disorders among at-risk

2

children. All abstracts are tagged with keyword links to cross-reference topics.

3

28.

CHD’s website also prominently features an “Advocacy/Policy” section down its

4

right-hand column with hyperlinks to seven headers, the first and most prominent of which

5

reads “CDC – Corruption, Deceit, and Cover-Up.” That header contains the following

6

preamble:

7

With the global vaccine market now at tens of billions of dollars,
vaccine safety should be of utmost concern to the Centers for
Disease Control (CDC). But instead, rather than testing and
monitoring the health effects of vaccines and patient injuries
truthfully to the American public and making critical and necessary
corrections in the program, the CDC has become a mouthpiece for
industry and has protected the ‘all vaccines for all children’ policy
despite peer-reviewed science to the contrary.

8
9
10
11
12
13

According to a UPI Investigative article written in the early 2000s,
the CDC owned at least 28 vaccine patents. They are also in charge
of vaccine promotion (getting the public to take vaccines) and
vaccine safety. The CDC, like other large bureaucratic agencies,
also has a revolving door to industry that comes with inherent
conflicts of interests. Common sense should have told us that this
system was doomed to fail.

14
15
16
17
18

The documents below, some of which were obtained by the
Freedom of Information Act (FOIA) show a pattern of deceit
perpetrated by the CDC on the American public and world stage
for over 25 years. The Children’s Health Defense believes that
vaccine safety should be taken from the CDC.

19
20
21
22
23

29.

CHD’s website also contains hyperlinks to numerous articles that criticize the

24

CDC and challenge its veracity, with illustrative titles such as: “CDC’s Vaccine “Science” —

25

A Decades-Long Trail of Trickery”; “Why You Can’t Trust the CDC on Vaccines”; “CDC and

26

WHO Corrupt Financial Entanglements with the Vaccine Industry”; “Dr. Brian Hooker’s

27

Official Statement Regarding Vaccine Whistleblower William Thompson”; “CDC & FDA

28

Committee Members Have Financial Conflict of Interest with Vaccine Pharmaceuticals”;

10

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 31 of 115

1

“OSC Calls for Further Review of Whistleblower Disclosures on Zika Testing”; “CDC Spider

2

Letter”; “CDC: Off Center”; “Real-Life Data Show that the CDC Vaccine Schedule is Causing

3

Harm”; “Don’t Fall for the CDC’s Outlandish Lies About Thimerosal”; “CDC and WHO

4

Corrupt Financial Entanglements with the Vaccine Industry”; “CDC Lies About, and Media

5

Repeats, Risk of Dying from Measles”; “CDC’s ‘Universal’ Recommendations for Infant Hep

6

B Vaccine Not Based on Science, But Assumptions”; “CDC’s Infant Hep B Vaccine

7

Recommendations—No Proof of Safety?” See, e.g., CDC and WHO Corrupt Financial

8

Entanglements with the Vaccine Industry [and other articles], CHILDREN’S HEALTH DEFENSE,

9

https://childrenshealthdefense.org/cdc-who/ (last accessed Aug. 14, 2020).

10

30.

Before publishing its science review articles in its “Kennedy News & Views”

11

electronic weekly newsletter, CHD conducts an internal editorial process genuinely to fact-

12

check the text and confirm the cited sources, to ensure that every article cites sources for every

13

fact it asserts. Otherwise, CHD publishes the article as a clearly-labeled editorial or opinion

14

piece, where the opinions expressed are not necessarily the opinions of CHD. Once approved,

15

the article is slotted into the publishing schedule, with layout on the CHD website, image

16

design, and publication on the website in designated categories (e.g., child health, toxins), and

17

layout in the newsletter template for emailing subscribers. CHD checks the accuracy of the

18

article again before emailing it to CHD subscribers, then alerts its affiliated organizations that

19

the article has published, and finally, CHD posts the article on its Facebook page, Twitter,

20

Instagram, and YouTube (when applicable).

21

31.

The CHD website offers for sale through its online store, inter alia, copies of

22

James Ottar Grundvig’s book, “Master Manipulator: The Explosive True Story of Fraud,

23

Embezzlement, and Government Betrayal at the CDC,” which is described on CHD’s website

24

as “a true story of fraud and betrayal, and an insider’s view of what takes place behind the

25

closed doors of agencies and drug companies, and with the people tasked to protect the health

26

of American children. It’s a cautionary tale of the dangers of blind trust in the government and

27

the health-care industry.” Master Manipulator: The Explosive True Story of Fraud,

28

Embezzlement, and Government Betrayal at the CDC, Store, CHILDREN’S HEALTH DEFENSE,

11

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 32 of 115

1

https://childrenshealthdefense.org/store/master-manipulator-the-explosive-true-story-of-fraud-

2

embezzlement-and-government-betrayal-at-the-cdc/ (last visited Aug 14, 2020).

3

32.

Similarly, CHD’s “5G and Wireless Harms Project” publishes links to articles

4

and videos on CHD’s website, which describe the health risks of 5G and wireless networks and

5

products, and CHD’s advocacy efforts to secure a moratorium on 5G development pending

6

further scientific research and consensus on that issue. See, e.g., “The 5G Crisis: Awareness &

7

Accountability,” Thermal and non-thermal health effects of low intensity non-ionizing

8

radiation: An international perspective ,” “Resistance to 5G: Roadblock to a High Tech Future

9

or Warning of a Serious Health Risk?” “What You Should Know About 5G Satellites: How

10

Musk’ Sci-Fi Dreams Are Becoming Our Living Nightmare,” “5G AirGig: What is It and

11

Should You Be Worried?” “5G/Electromagnetic Fields / Wireless Technologies,” “Scientists

12

warn of potential serious health effects of 5G,” “Six Italian Courts Have Ruled that Cell

13

Phones Cause Brain Tumors,” “The 5G Crisis: Awareness & Accountability,” CHILDREN’S

14

HEALTH DEFENSE (Dec. 21, 2019), https://childrenshealthdefense.org/video/the-5g-crisis-

15

awareness-accountability/. CHD uses a review process comparable to that described supra to

16

fact-check these articles and publish them as peer-reviewed research or labeled opinion, where

17

appropriate. Significantly, CHD also publishes commentary debunking vaccine and 5G-

18

hypotheses for which CHD has found no credible scientific evidence. See, e.g., D. Tachover,

19

CHD Statement on 5G and Coronavirus, CHILDREN’S HEALTH DEFENSE (Apr. 10, 2020),

20

https://childrenshealthdefense.org/news/chd-statement-on-5g-and-coronavirus/.

21

B.

CHD’s Facebook Page.

22

33.

On or about November, 2017, CHD agreed to Facebook’s Terms to create, and

23

has since actively maintained, its Facebook page. CHD did so to broaden its internet visibility

24

and reach, make its online library more widely-accessible, and increase its fundraising

25

platform. CHD has a current Facebook community of approximately 122,830 followers. CHD

26

uploads articles or video posts from the CHD website to its Facebook page on a daily (or more

27

frequent) basis, along with other articles or video posts, and hyperlinks to CHD’s archived

28

articles of interest to its community. A follower or visitor to CHD’s Facebook page can readily

12

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 33 of 115

1

search the “posts” archive and retrieve all of CHD’s present and past articles concerning, inter

2

alia, the CDC’s conflicts, errors, and omissions.

3

34.

As set forth infra, CHD did not use its Facebook page to post any content that

4

breached Facebook’s terms or community standards or was otherwise “unlawful, misleading,

5

discriminatory or fraudulent.” Terms at ¶ 3(2)(1).

6

35.

Under Section 1 of its adhesion contract Terms, Facebook describes its products

7

and services to include, inter alia, “[to] empower you to express yourself and communicate

8

about what matters to you” and one of those ways to “express yourself” is “adding content to

9

your profile.” Of its many reserved rights, Facebook notably does not retain the right to create

10

or add its own content to a user’s page, except for a specified reservation for “ads, offers, and

11

other sponsored content [. . .] which [o]ur partners pay us to show [] to you.” In Section 3(1),

12

Facebook reiterates that the user “own[s] the content that [the user] create[s] and share[s] on

13

Facebook[.] [. . .] and nothing in these Terms takes away the rights that [user] have to [their]

14

own content.” In Section 4(3), Facebook reiterates that “[w]e do not control or direct what

15

people and others do or say, and we are not responsible for their actions or conduct (whether

16

online or offline) or any content that they share (including offensive, inappropriate, obscene,

17

unlawful and other objectionable content.”).

18

36.

With respect to “harmful conduct,” Facebook’s Terms permit it to “detect misuse

19

of [its] Products, harmful conduct towards others and situations where [it] may be able to help

20

support or protect [its] community.” Facebook retains limited rights, e.g., “offering help,

21

removing content, blocking access to certain features, disabling an account or contacting law

22

enforcement[.] [and] shar[ing] data with other Facebook companies when [it] detect[s] misuse

23

or harmful conduct[.]” Here, too, Facebook does not reserve or retain the right to create its own

24

content on a user’s page. Terms ¶¶ 1, 3(2)(3).

25

37.

Facebook’s Terms purport to limit Facebook’s liability “to the fullest extent

26

permitted by applicable law.” Terms ¶ 4(3). The “applicable law” is California Civil Code

27

section 1668, which establishes that “[a]ll contracts which have for their object, directly or

28

indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the

13

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 34 of 115

1

person or property of another, or violation of law, whether willful or negligent, are against the

2

policy of the law.”

3

C.

4
5

Defendant’s Scheme to Defraud.
1.

38.

Overview.

On February 14, 2019, Rep. Schiff wrote a public letter to defendant Zuckerberg

6

“[a]s a Member of Congress who is deeply concerned about declining vaccination rates around

7

the nation,” pointedly asking that Facebook implement algorithms to identify, censor and

8

remove so-called “vaccine misinformation.” Schiff Sends Letter to Google, Facebook

9

Regarding Anti-Vaccine Misinformation, News/Press Releases, CONGRESSMAN ADAM SCHIFF

10

(Feb. 14, 2019), https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-

11

facebook-regarding-anti-vaccine-misinformation. The term “vaccine misinformation” (as Rep.

12

Schiff intended, and Facebook implemented it) is a euphemism for any expression of

13

skepticism toward government and industry pronouncements about vaccine safety and

14

efficacy, regardless of whether that expression is true or not. The term “vaccine

15

misinformation” does not, for example, include erroneous, misinformed or fraudulent

16

statements made by pharmaceutical companies, or the CDC, to promote vaccines.

17

39.

On information and belief, Zuckerberg met personally with Rep. Schiff

18

subsequently to discuss, inter alia, Facebook’s response to Rep. Schiff’s February 14, 2019

19

public letter and press release. At the same time and subsequently, in his role as Chairman of

20

the House Intelligence Committee, Rep. Schiff stated publicly that Congress could or should

21

“make changes to” the law that does not currently hold social media companies liable for third-

22

party content on their platforms. See, e.g., Hearing by Congress on "deepfakes" and artificial

23

intelligence [Video], GUARDIAN NEWS (June 13, 2019),

24

https://www.youtube.com/watch?v=lArPEDS0GTA. Rep. Schiff told reporters that, “if the

25

social media companies can’t exercise a proper standard of care when it comes to a whole

26

variety of fraudulent or illicit content, then we have to think about whether that immunity still

27

makes sense. These are not nascent industries or companies that are struggling for viability;

28

they’re now behemoths, and we need them to act responsibly." K. Waddell, A new attack on

14

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 35 of 115

1

social media's immunity, AXIOS (June 13, 2019), https://www.axios.com/social-media-

2

immunity-section-230-f15ac071-32e9-4e33-81e6-4c7ebadaea5e.html.

3

40.

On March 4, 2019, Lyn Redwood, CHD President, sent a 9-page letter to

4

defendant Zuckerberg in rebuttal of Representative Schiff’s letter. Because it is so germane to

5

Plaintiff’s claims, the letter is quoted extensively here, and attached to this Complaint as

6

Exhibit “A.” CHD’s letter explains its position with respect to vaccine safety and Facebook’s

7

role as content moderator, as follows:

8
9
10
11
12
13

We, too, are highly concerned that the public is being misinformed
about vaccines, and we agree that Facebook could play a positive
role in helping to resolve this problem. But we strongly disagree
that the means by which Facebook can do so is by preventing users
from seeing information that calls into question government
policies related to vaccinations. On the contrary, the means by
which Facebook can help empower people to make an informed
choice is to facilitate a free market of ideas and let users determine
for themselves the value of content that appears in their newsfeeds.

14
15
16
17
18
19

[Representative Schiff’s] true criterion for determining what
information constitutes a “threat” is not whether it is truthful and
accurate, but whether or not it accords with the goal of achieving
high vaccination rates. [. . . ] an implicit assumption underlying Mr.
Schiff’s criterion for determining what constitutes
“misinformation” is that the CDC is infallible in its vaccine
recommendations. We emphatically disagree and must reject this
assumption as totally illogical and unscientific.

20
21
22
23
24
25
26
27
28

Mr. Schiff would have you take steps to prevent “vaccine
misinformation” from proliferating, but who is to decide what
constitutes misinformation? Which party to the debate can claim a
monopoly on truth? [. . .] Efforts to stifle discussion and debate
about such an important issue constitute a serious threat to both our
health and our liberty.
The statement assumes that all vaccines are safe and effective for
everybody, but what there is a scientific consensus about is that
that is absolutely not true. Indeed, it is meaningless to treat
“vaccines” as a product concept when speaking in terms of safety
and effectiveness because each vaccine has a different profile.

15

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 36 of 115

1
2
3
4

There is a risk-benefit analysis that must be done for each one. Not
all vaccines are considered safe. Not all are considered effective. In
the scientific literature, there is a great deal of uncertainty and
debate about the safety and effectiveness of individual vaccines, as
well as their combined effects and the long-term consequences of
vaccinating children according to the CDC’s schedule.

5
6
7
8
9
10
11
12
13
14
15
16
17
18

[. . .]
Increasingly, we are learning from scientific research that there
are opportunity costs associated with vaccination. [. . .] It is a great
cause for concern that public health officials simply do not take
such opportunity costs into consideration when formulating public
vaccine policies.
In addition to disregarding the variable profile of each vaccine, Mr.
Schiff’s statement ignores the variability in children’s responses to
vaccinations. The risk-benefit must be conducted for each vaccine
and for every individual child. Not every child is at the same risk
from a given infectious disease. Not every child will have the same
immune response to a vaccine intended to prevent that disease. And
not every child is at the same risk of harm from the vaccine. That
there are subpopulations of children who are at higher risk of being
killed or permanently injured by vaccines is well recognized within
the scientific community.
[. . .]

19
20
21
22
23
24

Unfortunately, the public health objective of achieving high
vaccination rates is not necessarily conducive to the objective of
improving public health, and the same cognitive dissonance evident
in the FDA’s remark is reflected in Mr. Schiff’s objection to
information being shared on Facebook that isn’t conducive to the
government’s goal of persuading or coercing parents through
mandates to strictly comply with the CDC’s routine childhood
vaccine schedule.

25
26
27
28

Certainly, to inform parents about this compensation program and
the legal immunity for vaccine manufacturers might cause them to
think twice about vaccinating their children. Contrary to Mr.
Schiff’s criterion, it does not follow that they shouldn’t be
informed.

16

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 37 of 115

1

[. . .]

2

The CDC itself is a leading purveyor of misinformation about
vaccines. For example, a literature review by the prestigious
Cochrane Collaboration on the safety and effectiveness of the
influenza vaccine concluded that the fundamental assumptions
underlying the CDC’s universal flu shot recommendation are
unsupported by the scientific evidence and, furthermore, that the
CDC has deliberately misrepresented the science in order to
support its policy.

3
4
5
6
7
8

[. . .]

9
So, if Facebook is going to start preventing the spread of vaccine
misinformation, is it going to block links to pages from the CDC’s
website wherein such dangerously misleading claims are made?

10
11
12

[. . .]

13
To sum up, there is indeed a serious problem today with respect to
the propagation of misinformation about vaccines, but there are no
greater purveyors of vaccine misinformation than the government
and corporate news media. It is entirely inappropriate for elected
government officials to be instructing media companies to censor
criticism of entire categories of pharmaceutical products.

14
15
16
17
18

[. . .]

19
Without prejudice to your company’s right to determine your
service’s own terms of use, we believe that respect for this human
right is the value that Facebook should be upholding, along with
the right to informed consent, which is one of the most
fundamental ethics in the practice of medicine.

20
21
22
23
24

A true and correct copy of the letter is attached as Exhibit “A” hereto. Letter to Facebook,

25

CHILDREN’S HEALTH DEFENSE (March 4, 2019), https://childrenshealthdefense.org/wp-

26

content/uploads/FINAL-CHD-Letter-to-Facebook-1.pdf (emphases added).

27
28

41.

Nonetheless, Facebook conducted no investigation whatsoever to confirm or

refute the material facts asserted in CHD’s March 4, 2019 letter. Rather, Facebook determined

17

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 38 of 115

1

that the course of action Rep. Schiff actively encouraged – to act in concert with the CDC and

2

WHO -- would assist Facebook to avoid any legislative rollback of “service provider”

3

immunity from liability under the Communications Decency Act (“CDA”), 47 U.S.C.

4

§ 230(c)(1). On March 7, 2019, Monika Bickert, Facebook’s Vice President for Global Policy

5

Management, issued an online press release stating that:

6
7

We are working to tackle vaccine misinformation on Facebook by
reducing its distribution and providing people with authoritative
information on the topic. We are starting by taking a series of steps:

8
9
10
11
12
13
14
15
16
17

We will reduce the ranking of groups and Pages that spread
misinformation about vaccinations in News Feed and Search.
These groups and Pages will not be included in recommendations
or in predictions when you type into Search.
When we find ads that include misinformation about vaccinations,
we will reject them. We also remove related targeting options, like
“vaccine controversies.” For ad accounts that continue to violate
our policies, we may take further action, such as disabling the ad
account.
We won’t show or recommend content that contains
misinformation about vaccinations on Instagram Explore or
hashtag pages.

18
19

We are exploring ways to share educational information about
vaccines when people come across misinformation on this topic.

20
21
22
23

Update on April 26, 2019 at 10AM PT: We may also remove
access to our fundraising tools for Pages that spread
misinformation about vaccinations on Facebook.
How This Will Work

24
25
26
27

Leading global health organizations, such as the World Health
Organization and the US Centers for Disease Control and
Prevention, have publicly identified verifiable vaccine hoaxes. If
these vaccine hoaxes appear on Facebook, we will take action
against them.

28

18

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 39 of 115

1

For example, if a group or Page admin posts this vaccine
misinformation, we will exclude the entire group or Page from
recommendations, reduce these groups and Pages’ distribution in
News Feed and Search, and reject ads with this misinformation.

2
3
4

We also believe in providing people with additional context so they
can decide whether to read, share, or engage in conversations about
information they see on Facebook.We are exploring ways to give
people more accurate information from expert organizations about
vaccines at the top of results for related searches, on Pages
discussing the topic, and on invitations to join groups about the
topic. We will have an update on this soon.

5
6
7
8
9

We are fully committed to the safety of our community and will
continue to expand on this work.

10
11
12

Combatting Vaccine Misinformation, FACEBOOK, https://about.fb.com/news/2019/03/

13

combatting-vaccine-misinformation (last visited Aug 14, 2020) (emphases added).

14

42.

On September 4, 2019, the WHO Director-General issued a public statement that

15

it “welcomes the commitment by Facebook to ensure that users find facts about vaccines

16

across Instagram, Facebook Search, Groups, Pages and forums where people seek out

17

information and advice. Facebook will direct millions of its users to WHO’s accurate and

18

reliable vaccine information in several languages, to ensure that vital health messages reach

19

people who need them the most. The World Health Organization and Facebook have been in

20

discussions for several months to ensure people can access authoritative information on

21

vaccines and reduce the spread of inaccuracies on Facebook and Instagram.” Vaccine

22

Misinformation: Statement by WHO Director-General on Facebook and Instagram, WORLD

23

HEALTH ORGANIZATION (Sept. 4, 2019), https://www.who.int/news-room/detail/04-09-2019-

24

vaccine-misinformation-statement-by-who-director-general-on-facebook-and-instagram

25

(emphases added).

26

43.

At all times relevant hereto, the United States was a member of the WHO, a

27

United Nations specialized agency. Notably, under Article 71 of its Constitution, the WHO

28

may only consult and cooperate with non-governmental national organizations with the consent

19

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 40 of 115

1

of the Government concerned. Basic Documents, WORLD HEALTH ORGANIZATION (49th Ed.

2

2020), https://apps.who.int/gb/bd/pdf_files/BD_49th-en.pdf#page=1.

3

44.

The same day, September 4, 2019, that the WHO publicly lauded its close

4

collaboration with Facebook to “ensure people can access authoritative information [] and

5

reduce the spread of inaccuracies,” Facebook published a “Warning Label” in bold black

6

letters at the top of CHD’s Facebook page, which states:

7

This Page posts about vaccines

8

When it comes to health, everyone wants reliable, up-to-date
information. The Centers for Disease Control (CDC) has
information that can help answer questions you may have
about vaccines.

9
10
11

Go to CDC.gov

12
13

45.

Both before and after September 4, 2019, Facebook also implemented a “fact-

14

checking” campaign concerning content on Plaintiff’s page, in further coordination with the

15

CDC and WHO, designed to materially misrepresent Plaintiff’s content. Thus, Facebook killed

16

two birds with one stone: Facebook delivered what Rep. Schiff had forcefully requested — the

17

“vaccine misinformation” campaign — which in turn would help it achieve the continued

18

preservation of its desired Section 230 immunity. At the same time, Rep. Schiff’s demand

19

provided Facebook with cover for its own ulterior business motives, and pretext to launch its

20

own fraudulent scheme to cause reputational harm and financial loss to CHD, and illicit gain to

21

Facebook, by means of false representations and knowingly false suggestions. For Zuckerberg

22

and the other defendants, this was a classic “win-win” proposition.

23

46.

In perpetrating its fraud scheme, Facebook’s modus operandi was to treat any

24

information that does not advance the CDC and WHO’s policy goal of maintaining or

25

increasing vaccination rates as “false,” “fake,” “misinformation,” or “hoax,” irrespective of its

26

objective truth or the fact that it constitutes or qualifies as opinion. Facebook treats even the

27

view that parents have a right to informed consent, one of the most fundamental ethics in

28

medicine, as censorable “misinformation.” Any information related to the risks of vaccination,

20

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 41 of 115

1

no matter how well-grounded in science, is labeled and censored as “misinformation.”

2

Facebook then trained its technical means and methods on identifying and eliminating all such

3

content under the banner of “falsity.” By contrast, Facebook broadly incorporates and

4

promotes the CDC and WHO’s policy pronouncements on these issues as established “fact.”

5

Combatting Vaccine Misinformation, FACEBOOK, supra, https://about.fb.com/news/2019/03/

6

combatting-vaccine-misinformation.

7

47.

Merriam-Webster’s Dictionary defines “misinformation” as “incorrect or

8

misleading information,” and defines “information” as “(1) knowledge obtained from

9

investigation, study, or instruction; (2) intelligence, news; (3) facts, data.” Information,

10

Merrian-Webster.com, https://www.merriam-webster.com/dictionary/information (last

11

accessed Aug. 14, 2020). Facebook’s charge that Plaintiff’s content is “false information”

12

conveys to third-party users that it is demonstrably, provably false.

13

48.

Additionally, on May 21, 2020, Zuckerberg reportedly stated that “misleading

14

conspiracy theories around 5G on Facebook pose a risk of immediate physical harm” and that

15

his Facebook “team is working urgently to remove dangerous and deadly ‘fake news’ posts

16

about 5G.” He added that, “5G misinformation [] has led to some physical damage of 5G

17

infrastructure. So we believe that that is leading to imminent risk of physical harm. We take

18

down that content.” S. Keach, Facebook’s 5G fake news poses ‘risk of immediate physical

19

harm’, Zuckerberg warns, IRISH SUN (May 21, 2020), https://www.thesun.ie/tech/5453017/

20

facebook-5g-fake-news-mark-zuckerberg-physical-harm-masts-burning/. In other words,

21

Facebook takes the position that incidents of protestors (who have no connection with CHD)

22

burning telephone poles with 5G transmitters constitutes an “imminent risk of physical harm”

23

sufficient to warrant blocking CHD’s 5G safety content, irrespective of its truth. Thus, for

24

Zuckerberg’s own profit, caprice, or ill will, see infra, Facebook untethers the “clear and

25

present danger” standard from any recognizable mooring in the First Amendment. See, e.g.,

26

Bridges v. California, 314 U.S. 252, 263 (1941) (Black, J.) (“What finally emerges from the

27

“clear and present danger” cases is a working principle that the substantive evil must be

28

21

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 42 of 115

1

extremely serious and the degree of imminence extremely high before utterances can be

2

punished.”).

3

49.

Facebook has an undoubted right “to control its own product, and to establish the

4

terms with which its users, application developers, and advertisers must comply in order to

5

utilize this product.” Sambreel Holdings LLC v. Facebook, Inc., 906 F. Supp. 2d 1070, 1076

6

(S.D. Cal. 2016). But, here, even Facebook cannot avoid liability for provable injury to

7

Plaintiff’s property rights and intangible assets based on fraud and misrepresentation. See, e.g.,

8

Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (en banc)

9

(service provider may be liable where it makes answering discriminatory questions a condition

10

for doing business on its site).

11

50.

Thus, Facebook’s ownership of its platform does not give it free rein to develop,

12

create, and publish false and misleading content on CHD’s page, or to create tags which

13

mislead third-party users about the truthfulness of content on CHD’s pages, or to drive traffic

14

from CHD’s page to the CDC, to advance Facebook’s adverse business interests. Facebook’s

15

control over the manner in which its users view its website does not encompass the right to

16

commit acts of censorship, false disparagement, and fraud.

17

51.

Over the past fifteen months or longer, defendants have carried out a fraudulent

18

scheme to misrepresent, censor, and exclude CHD’s viewpoint on vaccine and 5G network

19

safety.

20
21

2.
52.

Means and Methods of Defendants’ Scheme.

Since on or about January 15, 2019, defendants have engaged in a scheme, plan

22

and artifice to disparage and defraud CHD, and cause it to lose money and goodwill, and to

23

obtain money and property by means of materially false and fraudulent pretenses,

24

representations, and promises, through three principal methods: (A) making materially false

25

statements; (B) omitting to disclose material facts; and (C) creating a materially deceptive

26

scheme. Defendants have created the false and misleading appearance to all third-party users

27

that CHD is in violation of Facebook’s Terms for publishing “false information” about vaccine

28

and 5G network safety, and defendants have used that ruse to deactivate CHD’s direct

22

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 43 of 115

1

fundraising and reject its paid advertisements, censor CHD’s content and user posts, publish

2

materially false or misleading content on CHD’s page, “shadow ban” CHD and “sandbox”

3

third-party users, i.e., deceptively limit the reach of other CHD content to those users whom

4

Facebook psychologically profiles as “undecided,” and conceal their methods and

5

collaborators. In truth, as defendants are fully aware, CHD has not posted any false

6

information, promoted any false content, or violated any fundraising or other terms of service.

7
8
9

53.

Defendants Facebook, Zuckerberg, Science Feedback, Poynter, Politifact, and

others engaged in a scheme to defraud CHD by, among other conduct:
(A)

Misrepresenting as fact to CHD that CHD’s fundraising function was

10

deactivated because CHD violated its terms of service with Facebook by

11

posting “false information” with respect to vaccines.

12

(B)

Misrepresenting as fact to CHD’s outside ad agency that CHD’s

13

fundraising advertisements were rejected because CHD violated its terms

14

of service with Facebook by posting “false information” with respect to

15

vaccines. Facebook did not (nor can it) produce any evidence of actual

16

falsity in such advertisements.

17

(C)

Misrepresenting as fact to all third-party Facebook users by means of a

18

“warning label” on CHD’s page that the CDC has “reliable, up-to-date

19

information about vaccines,” and that such users should “go to CDC.gov,”

20

and, by classic imputation of dishonesty, falsely suggesting that the

21

vaccine-related content on CHD’s page is not reliable, up-to-date

22

information.

23

(D)

Misrepresenting as facts to all third-party Facebook users that particular

24

enumerated CHD-, RFK, Jr.- and third party-content posted on the CHD

25

page contains “False Information Checked by independent fact-checkers,”

26

and to “see why” users should instead accept the opposition content

27

posted by Facebook’s “fact-checkers” on CHD’s page as “true”

28

information on the same subjects.

23

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 44 of 115

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(E)

Engaging deceptive mechanisms and machine-learning algorithms, which

2

secretly demote, hide, and/or limit the visibility and reach of CHD

3

vaccine- and 5G network-related content (practices known as “shadow-

4

banning” or “deboosting”) from third party users whom Facebook

5

psychologically profiles as “undecided” (a practice known as

6

“sandboxing”) in order to hide content from those it might sway, while

7

misrepresenting to CHD and all third-party Facebook users that no such

8

artificial processes or limitations have occurred.

9

(F)

Misrepresenting as fact to all third-party Facebook users that Facebook

10

relies upon “independent fact-checkers” to identify and tag “false

11

information” on CHD’s Facebook page based on a set of objectively-

12

neutral, reliable, and up-to-date factual criteria, when the criteria that is

13

actually applied is neither neutral, reliable, nor up-to-date, and the “fact-

14

checkers” are in privity with, or controlled by Facebook. The absurdity of

15

these misrepresentations hits home when one considers that Facebook and

16

Science Feedback created a “fact-checking” exemption for climate science

17

deniers by deeming climate disinformation ineligible for “fact-checking,”

18

because it is “opinion.” Emily Atkin, Facebook creates fact-checking

19

exemption for climate deniers, HEATED (Jun. 24, 2020),

20

https://heated.world/p/facebook-creates-fact-checking-exemption.

21

(G)

Misrepresenting as fact to all third-party Facebook users that users such as

22

CHD who have had content removed from or tagged on its platform, can

23

appeal that decision either to Facebook’s content moderator panel, or to an

24

“independent” “Oversight Board,” and that in making such

25

determinations, Facebook does not have any conflicts of interest that

26

compromise its judgment. M. Zuckerberg, Facebook’s commitment to the

27

Oversight Board, FACEBOOK (Sept. 2019), https://about.fb.com/wp-

28

24

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 45 of 115

1

content/uploads/2019/09/letter-from-mark-zuckerberg-on-oversight-

2

board-charter.pdf.

3

(H)

4

Concealing the extent to which Facebook actively collaborated with Rep.
Schiff, the CDC and WHO, inter alia, to implement their overall scheme.

5

(I)

Concealing their overall scheme by these and other deceptions, including

6

false and disparaging statements about CHD to users of CHD’s Facebook

7

page, and to other third parties.

8
9

54.

Among the means and methods by which these defendants carried out the

scheme to defraud Plaintiff were their transmission by means of wires in interstate commerce

10

of the following telephone calls, emails and/or online communications that contained

11

materially false and misleading information, and proximately caused damages, including

12

(1) falsely disparaging "warning label"; (2) materially deceptive use of "fact-checkers";

13

(3) disabling CHD's fundraising and ads; (4) disabling CHD's right to "appeal"; and

14

(5) concealment of the overall scheme.

15
16

3.
55.

Falsely Disparaging Warning Label.

As alleged supra, on September 4, 2019, after “several months of discussion”

17

with the WHO (Vaccine Misinformation: Statement by WHO Director-General on Facebook

18

and Instagram, supra, https://www.who.int/news-room/detail/04-09-2019-vaccine-

19

misinformation-statement-by-who-director-general-on-facebook-and-instagram), Facebook

20

published a Warning Label in bold black letters at the top of CHD’s Page, which states:

21
22
23
24

This Page posts about vaccines
When it comes to health, everyone wants reliable, up-to-date
information. The Centers for Disease Control (CDC) has
information that can help answer questions you may have about
vaccines.

25
26

Go to CDC.gov

27
28

25

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 46 of 115

1
2
3
4
5
6
7
8
9
10

56.

11

57.

Facebook re-publishes this disparaging falsehood every time a user uploads

12

CHD’s Facebook page, as has occurred literally hundreds of thousands of times since

13

September 4, 2019.

14

58.

Facebook’s warning label conveys in clear terms to any user that what they see

15

on CHD’s page is not reliable and not up-to-date, and it directs the user instead to “go to

16

CDC.gov” for reliable and up-to-date “information” about vaccines. Any user visiting a

17

webpage scans the immediately-visible content before scrolling down to view the remainder of

18

the content. Consequently, the top banner space of any webpage is valuable “screen real-

19

estate” where prime content can be shown. Facebook’s intended effect is to deprive CHD of

20

this screen space and to redirect users away from CHD’s page to the CDC website. Zuckerberg

21

publicly boasts that his “warning labels” and “fact-checks” effectively divert 95% or more of

22

all users from clicking through to the actual content. Entire CNN April 16 Coronavirus Town

23

Hall [Video], CNN BUSINESS (Apr. 17, 2020),

24

https://www.cnn.com/videos/business/2020/04/17/entire-april-16-coronavirus-town-hall-part-

25

5-sot-vpx.cnn.

26

59.

On or about September 10, 2019, in response to Facebook’s disparaging warning

27

label, CHD added text to the top of its Facebook page that states: “Read about CDC & WHO

28

corrupt financial entanglements with vaccine industry: childrenshealthdefense.org/cdc-who.”

26

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 47 of 115

1
2

4.
60.

Materially Deceptive use of “Fact-Checkers.”

On or about January 15, 2019 and thereafter, Facebook electronically blocked

3

CHD from displaying on CHD’s Facebook page a videotape interview of RFK, Jr. discussing a

4

pending lawsuit against Merck & Co. In so doing, Facebook fraudulently misrepresented to all

5

third-party users of CHD’s Facebook page that the videotape was “False Information Checked

6

by independent fact-checkers.”

7
8
9
10
11
12
13
14
15
16

61.

17

62.

Facebook’s warning label on RFK’s January 15, 2019 videotape critical of

18

Merck, Inc. was materially deceptive, in that the videotape is accurate with respect to its

19

assertions of fact and is otherwise an expression of RFK, Jr.’s opinions, and not “False

20

Information” as Facebook claims. Facebook’s warning label also omits material facts by

21

failing to disclose its advertising-client relationship with Merck, Inc. See T. Staton, The top 10

22

pharma companies in social media, FIERCEPHARMA, https://www.fiercepharma.com/special-

23

report/top-10-pharma-companies-social-media-0 (last accessed Aug. 14, 2020). Merck, Inc. is

24

one of the top 10 social media spenders among pharmaceutical companies and heavily

25

leverages Facebook as an advertising platform.

26
27

63.

On or about May 1, 2019 and thereafter, Facebook electronically blocked CHD

from displaying photographs of children receiving vaccines with needles on CHD’s Facebook

28

27

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 48 of 115

1

page, and fraudulently misrepresented to CHD that the photographs were “violent,” and

2

purported to have deleted them on that basis.

3

64.

On about May 1, 2019 and thereafter, Facebook posted the text of Wikipedia’s

4

entry about CHD on CHD’s Facebook page and refused to take it down, despite CHD’s

5

objection that the Wikipedia entry is false and misleading. The Wikipedia entry states, inter

6

alia, that “[m]uch of the material put forth by the Organization involves manipulation of

7

information and anti-vaccine propaganda. [. . .] The group has been contributing to vaccine

8

hesitancy in the United States[.]”

9

65.

On or about May 26, 2020 and thereafter, Facebook and its Lead Stories “fact-

10

checker” blocked CHD from displaying a 45-minute Instagram videochat with RFK, Jr. in

11

which RFK, Jr. accurately detailed Dr. Anthony Fauci’s past involvement with vaccine

12

manufacturers, and Facebook fraudulently misrepresented to all third-party users that the

13

interview was “Partly False Information Reviewed by independent fact-checkers.” Instagram is

14

a Facebook-subsidiary photo and video-sharing social networking service.

15

66.

16
17
18
19
20
21
22
23
24
25

67.

Upon clicking the “See Why” button, this materially-misleading explanation

26

appears: “Independent Fact-Checkers Say This Is Partly False. The information in this post is a

27

mix of true and false claims or it could be misleading or incomplete.” This “partly false”

28

designation would seem to concede that the information is at least partly true, while the

28

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 49 of 115

1

warning taints the entirety of the material – a highly unfair, overbroad and prejudicial

2

approach.

3
4
5
6
7
8
9
10
11
12

68.

13

69.

On or about May 28, 2020 and thereafter, Facebook blocked CHD from

14

displaying an article by Dr. Brian Hooker and Neil Miller concerning health outcomes in a

15

small-sample study of vaccinated and unvaccinated children and fraudulently misrepresented

16

to all third-party users that the article was “False Information Checked by Independent fact-

17

checkers.”

18

70.

Instead of sharing a normal preview, Facebook marks the content specifically

19

with an overlay grey graphic and prominent warning “False Information Checked by

20

Independent fact-checkers.” This has the intended effect of reducing both click-throughs to the

21

underlying content and shares. The net effect is to drastically reduce by 95% the traffic to

22

Children’s Health Defense website. Entire CNN April 16 Coronavirus Town Hall [Video],

23

supra, https://www.cnn.com/videos/business/2020/04/17/entire-april-16-coronavirus-town-

24

hall-part-5-sot-vpx.cnn.

25
26
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28

29

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 50 of 115

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71.

14

72.

Upon clicking the “See Why” button in the above screenshot, the user is shown

15

the following scroll which gives the notice, “The primary claims in the information are

16

factually inaccurate.”

17
18
19
20
21
22
23
24
25
26

73.

27

74.

28

Clicking the Science Feedback preview graphic takes the user to Facebook’s

purportedly “independent,” i.e., objectively-neutral, Science Feedback “fact-check” opposition:

30

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 51 of 115

1
2
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8
9
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15
16

75.

17

76.

However, this purportedly neutral Science Feedback “fact-check” is itself a

18

misrepresentation of material fact. Dr. Hooker, the author of the original study, disclosed in

19

that study the small size of his study sample, the statistical methods he employed on that small

20

sample, and the results he obtained, all of which is fully consistent with the scientific method.

21

Any reasonable reader of the study would be fully empowered to interpret for himself or

22

herself whether those statistical results have broader applicability, particularly in light of the

23

author’s conclusion that broader studies are warranted. Instead, Facebook holds out its “fact-

24

checker’s” opinion critical of the study methodology as conclusive “fact.” Facebook’s

25

classification of the original study as factually “false” is deceptive and materially misleading.

26

77.

On June 2, 2020 and thereafter, Facebook and Science Feedback, its purportedly

27

“independent fact-checker,” blocked CHD from displaying Dr. Elizabeth Mumper’s personal

28

account of her medical practice experience evaluating children and families, and fraudulently

31

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 52 of 115

1

misrepresented to all third-party users that the post was “False Information Checked by

2

independent fact-checkers.”

3

78.

Instead of sharing a normal preview, Facebook marks the content specifically

4

with an overlay grey graphic and a prominent warning “False Information Checked by

5

independent fact checkers.” As discussed, supra, this has the intended effect of drastically

6

reducing (by 95%) both click-throughs to the underlying content and shares. Facebook deploys

7

this deceptive tactic in order to greatly reduce user traffic to CHD’s Facebook page or website.

8
9
10
11
12
13
14
15
16
17
18
19

79.

20

80.

Upon clicking the “See Why” button in the above screenshot, the user is shown

21

the following scroll with the notice, “The primary claims in the information are factually

22

inaccurate.” But, the only citation for this notice is Dr. Brian Hooker’s small scale study

23

referenced supra. Dr. Hooker’s study is cited by the article, but it is neither its “primary” claim

24

nor, in any event, is it false.

25
26
27
28

32

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 53 of 115

1
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7
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81.

9

82.

Clicking the Science Feedback preview graphic takes the user to a purported

10

“fact-check” and oppositional article to Dr. Hooker’s study, not Dr. Mumper’s study which it

11

labels “false.”

12
13
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15
16
17
18
19
20
21
22

83.

23

84.

Rather, Dr. Mumper’s article “Mothers of Vaccine Injured Children: Modern

24

Day Cassandras” details its author’s medical practice history evaluating children and families

25

and the systematic denial of the existence of vaccine injury by the public health system. The

26

article contains links to peer reviewed, published research, and makes clear that it is Dr.

27

Mumper’s small-scale analysis and opinion, and that the interpretive value of her fact-based

28

opinions should be viewed accordingly, that is, as an anecdotal but nonetheless significant

33

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 54 of 115

1

marker of disparities in health outcomes. That fully-disclosed caveat does not make Dr.

2

Mumper’s article any less relevant as a contribution to the scientific literature. Critically, Dr.

3

Mumper’s article is not factually inaccurate or misleading in any way, nor does Facebook or

4

Science Feedback identify any actual inaccuracies.

5

85.

Dr. Mumper is a board-certified pediatrician with 40 years of experience as a

6

clinical practitioner and pediatric faculty member. She served as Medical Director of the

7

Autism Research Institute for five years and has lectured about medical problems of children

8

with chronic disease in 20 countries. The clinical opinion Dr. Mumper expressed in her June 2,

9

2020 article was the product of her extensive clinical research and practice, and her

10

conscientious reading of the medical literature. She has personally asked the CDC, National

11

Institute of Health, and the American Academy of Pediatrics to conduct well-controlled studies

12

comparing vaccinated to unvaccinated children. In the meantime, and in the absence of any

13

such more definitive work, Dr. Mumper’s small-scale comparative study and her opinions,

14

within their expressed limits, have interpretive value and validity, and play a necessary and

15

critical role in informing her fellow practitioners, patients, and the general public.

16

86.

In short, Facebook has misrepresented as fact to all third-party users that Dr.

17

Mumper’s article is “false,” and that its “primary claims are factually inaccurate,” when that is

18

not the truth. Facebook has also misrepresented as fact to all third-party users that Facebook

19

relied upon an “independent fact-checker,” when the criteria that Science Feedback has

20

actually applied is neither neutral, reliable, nor up-to-date, nor for that matter is Science

21

Feedback “independent” of its contractual payor, Facebook.

22

87.

The CHD content in question illuminates the plausibility of risk in current public

23

health policy, and this information allows third-party users to determine if additional

24

investigation or mitigation is needed on their part. Facebook’s deliberate conflation of open

25

scientific controversy with “vaccine hoax” is a misrepresentation of fact. In short, closing

26

down legitimate debate of matters in open controversy is not a public benefaction, but an abuse

27

of power and something that is completely contrary to science.

28

34

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 55 of 115

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

88.

19

89.

On or about April 16, 2020 and thereafter, Facebook and Politifact, its

20

purportedly “independent fact-checker,” blocked CHD from displaying an article concerning a

21

study in the journal Collective-Evolution.com which found a “significantly” greater risk of

22

contracting coronavirus among individuals in the study who received the influenza vaccine,

23

and Facebook and Politfact fraudulently misrepresented to all third-party users that the post

24

was “False Information Checked by independent fact-checkers.” Indeed, the very name

25

“Politifact” suggests that the putative “fact-checking” here is more political than scientific.

26
27
28

35

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 56 of 115

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14
15
16
17
18
19
20

90.

21

91.

22

Upon clicking-through the “See Why” button, the user is presented with the

following purported “fact-check” by Politifact, a wholly-owned subsidiary of Poynter.

23
24
25
26
27
28

36

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 57 of 115

1
2
3
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5
6
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8
9
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11
12
13
14
15
16
17
18

92.

19

93.

The Politifact “fact-check” misrepresents and fails to rebut two important aspects

20

of the study: (1) coronaviruses existed in 2017-2018 in forms other than COVID-19; and (2)

21

the study’s conclusion that “vaccine derived virus interference was significantly associated

22

with coronavirus and human metapneumovirus.” Receiving the influenza vaccination may

23

increase the risk of other respiratory viruses, a phenomenon known as viral interference.

24

94.

On or about June 18, 2020 and thereafter, Facebook blocked CHD from

25

displaying an article concerning a sharp decline in infant death rates during the pandemic,

26

matching a sharp decline in “well-baby visits” when vaccines are typically given. Facebook

27

and Science Feedback, its purportedly “independent fact-checker,” fraudulently misrepresented

28

37

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 58 of 115

1

to all third-party users that the post was “Partly False Information Checked by independent

2

fact-checkers.”

3
4
5
6
7
8
9
10
11
12
13
14
15
16

95.

17

96.

18

Upon clicking-through the “See Why” button, the user is presented with a

purportedly factual opposition article by Science Feedback.

19
20
21
22
23
24
25
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27

97.

28

38

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 59 of 115

1
2
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9
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13
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15
16
17
18

98.

19

99.

Science Feedback’s assertion that vaccines bear no “association” with sudden

20

child infant death is itself a misrepresentation of fact, as it contradicts, inter alia, the potential

21

adverse effect advisements formerly on many vaccine product inserts, customarily

22

administered to infants according to the CDC’s 72-dose recommended vaccine schedule.

23

CHD’s article advances a potential explanation for a decrease in sudden infant deaths during

24

the pandemic, as to which the public has a right to be informed. There is nothing “false” about

25

CHD’s speculative inquiry into matters of causation in an open scientific controversy.
5.

26
27
28

100.

Disabling CHD’s Fundraising and Ads.

On or about May 2, 2019 and thereafter, Facebook permanently deactivated the

fundraising function, or “donate” button, on CHD’s Facebook page, in disregard of CHD’s

39

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 60 of 115

1

501(c)(3) non-profit status. In its termination email to CHD, Facebook’s “Charitable Giving

2

Team” fraudulently misrepresented that it took this action because CHD’s page was “in

3

violation of [its] fundraising terms and conditions.” Combatting Vaccine Misinformation,

4

supra, https://about.fb.com/news/2019/03/combatting-vaccine-misinformation/.

5

101.

Also on or about May 2, 2019 and thereafter, Facebook blocked CHD and RFK,

6

Jr., and subsequently Prizeo, their third-party advertising agency, from purchasing online ads

7

to promote CHD, including most recently ads promoting its Summer 2020 fundraising drive. In

8

its April 20, 2020 electronic notice rejecting the attempted transactions on behalf of CHD and

9

RFK, Jr., Facebook fraudulently misrepresented to Prizeo that it took this action because CHD

10

has “repeatedly posted content that has been disputed by third-party fact-checkers [for]

11

promoting false content.”

12
13

6.
102.

Disabling CHD’s Right to “Appeal” These Actions.

On or about May 1, 2019, Facebook permanently disabled the “dispute” function

14

on CHD’s account so that neither CHD, RFK, Jr., nor Prizeo could challenge Facebook’s

15

actions through direct submission, and Facebook has ignored CHD’s written requests over the

16

past eighteen months that both its content and full functionality be restored to CHD’s page.

17
18

7.
103.

Concealment of the Overall Scheme.

On or about May 1, 2019, Facebook began covertly to demote and/or ban content

19

(“shadow-ban”) that CHD posted to its Facebook page, effectively limiting its visibility and

20

reach, and secondarily reducing ad revenue to CHD. Facebook owns a patent on social media

21

shadowbanning. See United States Patent No. 10,356,024, Kanter et al. (Moderating content in

22

an online forum), USPTO Patent Full-Text and Image Database, UNITED STATES PATENT AND

23

TRADEMARK OFFICE (Jul 16, 2019), http://patft.uspto.gov/netacgi/nph-

24

Parser?Sect2=PTO1&Sect2=HITOFF&p=1&u=/netahtml/PTO/search-

25

bool.html&r=1&f=G&l=50&d=PALL&RefSrch=yes&Query=PN/10356024 (last accessed

26

Aug. 15, 2020). The patent describes the mechanism by which shadowbanning is

27

accomplished: In one embodiment, the social networking system blocks banned comments by

28

analyzing the text of the comments. For example, if a comment includes a profane word, as

40

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 61 of 115

1

provided in a list of banned words, the social networking system will not display the comment

2

to other users of the social networking system.

3

104.

Additionally, in one embodiment, Facebook also performs a “sentiment analysis”

4

to identify whether a comment includes sentiment that is banned under Facebook’s community

5

standards, e.g., derogatory racial epithets. Finally, Facebook’s patent permits it to train a

6

machine learning classifier to block comments based on Facebook content moderators’ actions

7

of manually deleting comments or unblocking comments in the online forum. In one

8

embodiment, the blocked comments are not displayed to the wider community of Facebook

9

users. However, the blocked comments are displayed to the commenting user and his or her

10

friends within the social networking system. As such, Facebook’s software creates a

11

simulacrum in which the “offending” user — here CHD — is not aware that their comment or

12

content is not displayed to other users of the forum. Since May 2019, Facebook has utilized

13

this deceptive scheme in order to covertly limit or block CHD’s content while misrepresenting

14

the visibility and reach of that content to CHD itself, and misrepresenting the totality of CHD’s

15

content to all third-party users.

16

105.

Moreover, a “whistleblower” recently disclosed Facebook internal documents,

17

which reveal the extent of Facebook’s sophisticated designs aimed at user behavior

18

modification in order to limit the spread of “undesirable” information. Facebook boasted

19

internally that it has employed these methods based on its psychological research

20

demonstrating their efficacy because nearly all third-party users (95%) will be dissuaded from

21

clicking through to the original content by the very design and trade dress elements of

22

Facebook’s warnings. This Facebook design document shows a technical discussion of such

23

mechanisms:

24
25
26
27
28

41

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 62 of 115

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7
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9
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13
14

106.

15
16
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18
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21
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23
24
25
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27
28

107.

42

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 63 of 115

1

108.

At an April 17, 2020, CNN “Global Town Hall,” Zuckerberg boasted that “we

2

work with independent fact-checkers [] and warning labels work. We know that because 95%

3

of the time when someone sees a piece of information that has a fact-check on it, they don’t

4

click through and consume that information.” Entire CNN April 16 coronavirus town hall,

5

supra, https://www.cnn.com/videos/business/2020/04/17/entire-april-16-coronavirus-town-

6

hall-part-5-sot-vpx.cnn.

7

109.

Indeed, Facebook has used “A/B testing” (testing users’ response to variants) to

8

achieve its intended psychological effect on user behavior. Essentially, similar demographic

9

test-groups are shown two (or more) different behavior modification mechanisms, and the most

10

effective mechanism is chosen based on statistical results in terms of which variant achieves

11

the desired user behavior. About A/B Testing, Business Help Center, FACEBOOK FOR BUSINESS,

12

https://www.facebook.com/business/help/1738164643098669?id=445653312788501 (last

13

accessed Aug. 14, 2020).

14

110.

The “whistleblower” also described Facebook’s use of “troll scores” that were

15

assigned to accounts and used to assess what punitive actions it would take against the

16

accountholder. There is no accountability or accountholder recourse, since Facebook compiles

17

its punitive “troll scoring” without the holder’s knowledge. Anonymous – Facebook, PROJECT

18

VERITAS (Apr. 6, 2020), https://www.projectveritas.com/news/anonymous-facebook/.

19

111.

The “whistleblower” also revealed Facebook’s use of a “deboosting” score,

20

which it uses to “deboost” content produced by the accountholder’s page. Facebook deployed a

21

similar, if not the same algorithm, to limit the visibility and reach of CHD content. As

22

explained by the whistleblower and screenshots obtained by Project Veritas, the

23

ActionDeboostLiveDistribution tag is designed to “deboost” content produced by the pages it

24

is attached to, specifically suppressing the distribution of livestreams from that page. A current

25

Facebook employee confirmed to Project Veritas that the code could reduce a “video’s

26

visibility in news feeds, remove sharing features, and disable interactive notifications.”

27
28

112.

The “whistleblower’s” account elaborates upon newspaper and magazine articles

about internal and top-down biases in Facebook’s content control processes. A “Wired”

43

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 64 of 115

1

magazine article reported on Facebook’s use of a custom algorithm — “Click Gap” —

2

specifically to limit the spread of whatever Facebook terms “fake news.” Facebook deployed a

3

similar, if not the same algorithm, to damage CHD, by covertly limiting the visibility and reach

4

of its content. An April 18, 2019 “Wired” article explains: “Click-Gap, which Facebook is

5

launching globally today, is the company’s attempt to limit the spread of websites that are

6

disproportionately popular on Facebook compared with the rest of the web. If Facebook finds

7

that tons of links to a certain website are appearing on Facebook, but few websites on the

8

broader web are linking to that site, Facebook will use that signal, among others, to limit the

9

website’s reach.” Facebook Is Changing News Feed (Again) to Stop Fake News, WIRED (Apr.

10
11

10, 2019), https://www.wired.com/story/facebook-click-gap-news-feed-changes/.
113.

A CNET article reported that Facebook planned to use “updated machine

12

learning” to detect more potential “hoaxes” and send them to third-party “fact-checkers.”

13

Facebook used the same or similar machine learning systems to detect and flag CHD content

14

for sending to Facebook’s “fact-checker” affiliates. R. Cheng, Facebook will use machine

15

learning to fight fake news, CNET (Aug. 3, 2017), https://www.cnet.com/news/facebook-will-

16

use-machine-learning-to-fight-fake-news/.

17

114.

The Doe defendants comprise, inter alia, members of an enterprise with or

18

withinFacebook working directly to label, suppress, and censor vaccine and 5G-network

19

related content on CHD’s Facebook page. The enterprise operates under the direct supervision

20

and control of Facebook’s corporate leadership and Zuckerberg. It includes individual

21

Facebook officers or employees (known only to Facebook) responsible for key design elements

22

that enable widespread AI-driven “fact-check” content suppression and manipulation. The

23

enterprise manipulates technical processes to “shadow ban” CHD, i.e., deceive Plaintiff as to

24

the reach and visibility of content on its Facebook page, and prevent its content from being

25

disseminated. The enterprise also exploits internal marketing and psychometric data to

26

“sandbox” users, i.e., selectively hide content from users based on their psychological profile,

27

and ward off the possibility that alternative content may influence their views. “Sandbox” is an

28

44

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 65 of 115

1

apt term for isolating users in an echo chamber of like-minded viewpoints where existing

2

views are reinforced, and alternative or opposing ideas are not considered.

3

115.

Facebook shows CHD’s vaccine- and 5G network-safety content to CHD’s

4

already-“decided” users, but Facebook does not show it to any other “undecided” or “opposed”

5

users. Thus, Facebook seeks to rigidify users’ positions on matters of public concern, and

6

foreclose public debate, or any possibility of the societal “ultimate good [] reached by free

7

trade in ideas,” (see Abrams v. United States, 250 U.S. at 630 (Holmes, J., dissenting)), while

8

concealing its methods and effects. Facebook, with the government’s assistance, blocks content

9

critical of the CDC and WHO. The First Amendment protects against this new “privatized”

10

form of governmental censorship. This is also a classic method of fraud concealment: if

11

Plaintiff does not know what defendants are telling or showing third parties, Plaintiff is less

12

likely to sue. See, e.g., Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008) (“suppose

13

an enterprise that wants to get rid of rival businesses mails misrepresentations about them to

14

their customers and suppliers, but not to the rivals themselves.”).

15

116.

On December 27, 2018, New York Times reporter Max Fisher wrote that, based

16

on his review of Facebook internal documents, Facebook’s “closely-held rules” for moderating

17

content on its website had “numerous gaps, biases and outright errors.” Fisher characterized

18

those errors as a byproduct of the over- and under-inclusive nature of binary rules when

19

applied to “highly complex issues,” plus the highly time-sensitive (“eight to 10 seconds per

20

post”) workload constraint Facebook puts on the decisions at issue. He quoted Facebook

21

officer Bickert as saying, “we have billions of posts every day, we’re identifying more and

22

more potential violations using our technical systems. At that scale, even if you’re 99 percent

23

accurate, you’re going to have a lot of mistakes” (emphasis added). (Here, Facebook’s

24

wrongdoing is deliberate, a form of decision-making which Bickert’s reference to “mistakes”

25

elides.) Fisher reported that, “By telling moderators to follow the rules blindly, Facebook

26

hopes to guard against bias and to enforce consistency.” But, “Facebook has little visibility into

27

the giant outsourcing companies, which largely police themselves, and has at times struggled

28

to control them.” M. Fisher, Inside Facebook's Secret Rulebook for Global Political Speech,

45

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 66 of 115

1

NEW YORK TIMES (Dec. 27, 2018), https://www.nytimes.com/2018/12/27/world/facebook-

2

moderators.html.

3

117.

Fisher further reported that, “[t]hough Facebook says its focus is protecting

4

users, the documents suggest that other concerns come into play. [For example, Pakistan-

5

related] guidelines warn moderators against creating a “PR fire” by taking any action that

6

could “have a negative impact on Facebook’s reputation or even put the company at legal risk.

7

[. . .] And its decisions often skew in favor of governments, which can fine or regulate

8

Facebook.” Id.

9

118.

More recently, on May 16, 2020, New York Times reporters Mike Isaac, Sheera

10

Frenkel and Cecilia Kang wrote in their article “Now More Than Ever, Facebook Is a ‘Mark

11

Zuckerberg Production’” that:

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

[A]t Facebook, for more than a decade, Mark Zuckerberg was a
product guy’s product guy. In practice, this meant [. . .] he was
comfortable delegating in areas that interested him less keenly —
including [. . .] the realm of Facebook policy around what kind of
speech was and was not permitted. Those subjects fell into a
specific category: Too important to ignore, but not exactly what a
young billionaire wants to spend all of his time on.
[After the 2016 election] Mr. Zuckerberg resolved to take control
of the global superpower in which he already dominated the voting.
[In July 2018,] Mr. Zuckerberg called a meeting with his top
lieutenants. [. . .] Mr. Zuckerberg said he would be making more
decisions on his own, based on his instincts and vision for the
company. [. . . ] Mr. Zuckerberg also began to participate more
directly in meetings that had previously been Ms. Sandberg’s
domain — from the nitty-gritty of taking down disinformation
campaigns, to winding philosophical discussions on how Facebook
ought to handle political ads. [. . .] Other board disagreements,
specifically around political advertising and the spread of
misinformation, always ended with Mr. Zuckerberg’s point of view
winning out. [. . .] To replace [departing board members], Mr.
Zuckerberg picked [ . . .] Peggy Alford, the former chief financial
officer of the Chan Zuckerberg Initiative.
Mike Isaac, Sheera Frenkel & Cecilia Kang, Now More Than Ever, Facebook Is a ‘Mark

46

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 67 of 115

1

Zuckerberg Production,’ NEW YORK TIMES (May 16, 2020),

2

https://www.nytimes.com/2020/05/16/technology/zuckerberg-facebook-coronavirus.html

3

(emphases added).

4

119.

Facebook contracted with Science Feedback, a French organization which

5

Facebook funds, to “fact-check” CHD’s content, and directed Science Feedback to deploy

6

Facebook’s circular WHO and CDC definitions of “vaccine misinformation.” Science

7

Feedback is wholly dependent upon Facebook, both financially and editorially. On information

8

and belief, neither Facebook nor Science Feedback makes any genuinely independent effort to

9

check the veracity of the censored or labeled CHD content.

10
11

120.

Instead, Facebook created a classification system that provides Science Feedback

with a limited set of nine pre-populated classifications to apply to a posting:

12

• False

13

• Partly False

14

• True

15

• False Headline

16

• Not Eligible

17

• Satire

18

• Opinion

19

• Prank Generator

20

• Not Related

21

Fact-Checking on Facebook, Business Help Center, FACEBOOK FOR BUSINESS,

22

https://www.facebook.com/help/publisher/182222309230722 (last accessed Aug. 14, 2020).

23

121.

Apparently, if Science Feedback decides that an article is not “false,” “partly

24

false,” or “false headline” but falls into any of the other six classifications (i.e., True, Not

25

Eligible, Satire, Opinion, Prank Generator, and Not Related), Facebook does not display (or

26

does not prominently display) a link to the “See Why” window or to Science Feedback’s

27

oppositional article.

28

47

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 68 of 115

1

122.

Under this arrangement, Facebook pays Science Feedback to classify content,

2

and Facebook flags content for Science Feedback to evaluate and classify as part of their

3

partnership. Science Feedback is paid by Facebook to find false stories, and here willfully

4

marked Plaintiff’s content as “false” or “partly false” in order to generate traffic to its website

5

through the warning and link, and to further its contractual partnership with Facebook. The

6

“fact-checking” system Facebook created encourages this type of mislabeling. The Science

7

Feedback fact-checkers have an obvious incentive to categorize a post as “False” rather than an

8

accurate but less damaging classification of “Opinion,” because that is the only way Facebook

9

will insert the clear warning with a prominent link to Science Feedback’s oppositional article.

10

Facebook deceives its users by materially misrepresenting that its “fact-checkers” are

11

“independent,” contractually or editorially. Significantly, the arrangement also permits

12

Facebook and Science Feedback to create categorical exemptions from “fact-checking” where

13

it suits Zuckerberg’s political or other biases, e.g., the “opinion” exemption for climate science

14

deniers. Emily Atkin, Facebook creates fact-checking exemption for climate deniers, supra,

15

https://heated.world/p/facebook-creates-fact-checking-exemption.

16

123.

As to each of the CHD and RFK, Jr. articles and video posts, which Facebook

17

and Science Feedback, or Poynter/Politifact labeled “False Information” or “Partly False

18

Information,” see supra, Science Feedback and Politifact’s opposition articles show, at most,

19

that the specific matter asserted was the opinion of its authors on fully-disclosed limited facts,

20

not that it was a “false” or “partly false” statements of fact. Nevertheless, Science Feedback

21

designated the articles and videos as “False” or “Partly False,” not “Opinion.” Facebook then

22

proceeded to gray out the articles and videos and placed its warnings over them. By using

23

Facebook’s pre-populated options to mislabel the articles and videos, Science Feedback and

24

Facebook intentionally tell the public that Plaintiff is presenting false information, when they

25

know that the information presented is, at most, opinion and not false fact.

26
27
28

8.
124.

Continuing Injuries to CHD.

CHD’s primary source of revenue derives from membership dues and donations

that CHD solicits on its website, through PayPal and Stripe, and formerly on its Facebook

48

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 69 of 115

1

page. In addition to that monetary interest, attracting visitors to the CHD Facebook page, and

2

through it to CHD’s website, enables CHD and RFK, Jr., their authors, and readers to associate

3

and to engage in speech on matters of mutual concern. Prior to March 2019, CHD’s Facebook

4

page content generated significant third-party user traffic to CHD’s website, and significant

5

membership fees and donations to CHD.

6

125.

From January to May 2019, CHD generated $41,241 in user donations from its

7

Facebook page. In May 2019 alone, CHD received $24,872, until Facebook deactivated CHD’s

8

donate function. CHD has not received any further donation revenue through Facebook.

9

126.

Facebook has exclusive possession, custody, and control of evidence to assess

10

the full extent of the damages to Plaintiff’s business and property interests which defendants’

11

deceptions have proximately caused, e.g.: (1) how many visitors to CHD’s page instead click

12

through to “go to CDC.gov”; (2) how many are diverted from CHD’s content due to “fact-

13

check” labels; (3) how much has Facebook-wide traffic of such content decreased; (4) what are

14

the daily click-through, cost-per-click, conversion, and cost-per-action rates for visitors to

15

Plaintiff’s Facebook page — all of which is information Facebook compiles in the ordinary

16

course of its business operations of gathering, manipulating, and marketing psychometric and

17

other data on users. Plaintiff lacks access to these missing pieces of the puzzle.

18

127.

As a result of defendants’ actions, third-party user visits from CHD’s Facebook

19

page to CHD’s website declined significantly since March 2019, while visits to CHD’s website

20

grew from other interactive computer services (e.g., Bing and DuckDuckGo) that have not

21

implemented Facebook’s smear campaign. CHD’s Twitter account has grown by 80,000

22

followers during the past twelve months, while its Facebook account has grown by only 20,000

23

followers, despite the smear campaign.

24

128.

Additionally, CHD’s trade reputation and “goodwill” are traditional property

25

rights whose value defendants have diminished through their fraudulent misconduct. CHD’s

26

reputation for accurate and timely content is a source of its goodwill, and paramount to its

27

operations and success. “[A] man’s right to the continued enjoyment of his trade reputation and

28

the good will that flows from it, free from unwarranted interference by others, is a property

49

VERIFIED COMPLAINT
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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 70 of 115

1

right[.]” Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413 (1916). Defendants targeted

2

CHD, and the injuries to CHD’s organizational trade and reputation were both foreseeable and

3

intended. Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 658 (2008).

4

129.

CHD is the most direct victim of Facebook’s “vaccine misinformation” smear

5

campaign, and is best positioned to sue; its financial losses are provable, and far more than a

6

“bit part in the scheme” (Kelly v. United States, 140 S. Ct. 1565, 1573 (2020)), and there is no

7

risk of duplicative recoveries because no one else can recover CHD’s losses. At the same time,

8

Facebook controls the proof of that portion of claimed damages attributable to the defendants'

9

unlawful conduct. See Lexmark International, Inc. v. Static Control Components, Inc., 572

10

U.S. 118, 134 S. Ct. 1377, 1393 (2014) (“When a defendant harms a Plaintiff's reputation by

11

casting aspersions on its business, the Plaintiff's injury flows directly from the audience's belief

12

in the disparaging statements….”).

13

D.

Material Questions of Vaccine Safety.

14

130.

By 1986, the “litigation costs associated with claims of damage from vaccines

15

had forced several companies to end their vaccine research and development programs as well

16

as to stop producing already-licensed vaccines.” Institute of Medicine, Adverse Events

17

Associated with Childhood Vaccines: Evidence Bearing on Causality, at 2 (1994). In response,

18

Congress enacted the National Childhood Vaccine Injury Act, codified at 42 U.S.C. §§ 300aa-

19

1 through 300aa-34 (the “1986 Act”), which virtually eliminated economic liability for

20

pharmaceutical companies for injuries caused by their vaccines. 42 U.S.C. § 300aa-11 (“No

21

person may bring a civil action for damages in the amount greater than $1,000 or in an

22

unspecified amount against a vaccine administrator or manufacturer in a State or Federal court

23

for damages arising from a vaccine-related injury or death.”); Bruesewitz v. Wyeth LLC, 562

24

U.S. 223, 243 (2011) (“we hold that the National Childhood Vaccine Injury Act preempts all

25

design-defect claims against vaccine manufacturers brought by Plaintiffs who seek

26

compensation for injury or death caused by vaccine side effects”); cf. Davis v. Wyeth

27

Laboratories, 399 F.2d 121, 129-30 (9th Cir. 1968) (recipient of polio vaccine entitled to make

28

50

VERIFIED COMPLAINT
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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 71 of 115

1

a “true choice judgment” whether to be inoculated with Sabin III vaccine, an “unavoidably

2

unsafe” product).

3

131.

By granting pharmaceutical companies immunity from actual or potential

4

liability from injuries caused by vaccines, Congress eliminated the market forces relied upon to

5

assure the safety of these typically mandatory consumer products. Recognizing that it

6

eliminated the financial incentive for pharmaceutical companies to assure the safety of their

7

vaccine products, Congress placed the responsibility for vaccine safety in the hands of the

8

Department of Health and Human Services (“HHS”) and its agencies, most pertinently here,

9

the CDC. 42 U.S.C. § 300aa-27(a) (“Mandate for safer childhood vaccines”) provides, inter

10

alia, that the Secretary of HHS “(1) shall promote the development of childhood vaccines that

11

result in fewer and less serious adverse reactions [. . .], and (2) make or assure improvements

12

in, and otherwise use the authorities of the Secretary with respect to . . . research on vaccines,

13

in order to reduce the risks of adverse reactions to vaccines.”

14

132.

In executing their statutory duties, HHS and the CDC must avoid conflicts of

15

interest with pharmaceutical companies because these agencies are responsible for promoting

16

safe vaccines, and for defending against claims of vaccine injuries. Indeed, the CDC is the

17

single largest purchaser and distributor of vaccines (nearly forty percent of the total

18

administered) in the United States. In 2019 alone, the CDC entered into contracts to purchase

19

and distribute up to $5.1 billion of the three leading manufacturers’ vaccine products.

20

See 2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS,

21

https://www.governmentcontracts.us/government-contracts/opportunity-

22

details/NBD00159991194385117.htm (last accessed Aug. 15, 2020); Indefinite Delivery

23

Contract 75D30119D04518, Federal Contract IDV Award, GOVTRIBE (Jun. 29, 2020),

24

https://govtribe.com/award/federal-idv-award/indefinite-delivery-contract-75d30119d04518;

25

2019 Vaccines for Children, State of Georgia, GOVERNMENT CONTRACTS AND BIDS,

26

https://www.govcb.com/government-bids/vaccines-for-children-

27

NBD00159022703927119.htm (last accessed Aug. 15, 2020).

28

51

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1

133.

. And, while HHS is obliged to report to Congress every two years on the actions

2

HHS has taken to make and assure improvements in the licensing, manufacturing, adverse

3

reaction reporting, research, safety and efficacy testing of vaccines in order to reduce the risk

4

of adverse vaccine reactions, HHS apparently has never complied with that statutory

5

obligation. See Stipulated Order, U.S.D.C. S.D. N.Y. No. 18-cv-03215 (JMF) (filed Jul. 9,

6

2018) & Press Release, INFORMED CONSENT ACTION NETWORK (ICAN) (Jul. 13, 2018),

7

https://www.icandecide.org/wp-content/uploads/2019/09/Stipulated-Order-copy-1.pdf; 42

8

U.S.C. § 300aa-27.

9

134.

Under the 1986 Act, the CDC plays a central role in ensuring the safety of the 72

10

doses of vaccines on the CDC’s Child and Adolescent Immunization Schedule. Most of these

11

vaccines, which are vigorously promoted by the CDC for injection into America’s children, are

12

manufactured and sold by four pharmaceutical companies -- GlaxoSmithKline (“GSK”),

13

Sanofi S.A. (“Sanofi”), Pfizer, and Merck & Co. (“Merck”).

14

135.

If a vaccine injures an individual, the injured individual must (pursuant to the

15

1986 Act) bring a claim in the National Vaccine Injury Compensation Program (“VICP”),

16

administered in the Federal Court of Claims. In such actions, the Secretary of HHS is the

17

respondent with the Department of Justice as its litigation counsel, and these government

18

lawyers regularly and vigorously defend against any claim that a vaccine caused injury. (42

19

U.S.C. § 300aa-12; Vaccine Injury Compensation Program: Addressing Needs and Improving

20

Practices, Sixth Report by the Committee on Government Reform, Union Calendar No. 575,

21

106th Congress, 2d Session, House Report 106–977, HOUSE COMMITTEE ON GOVERNMENT

22

REFORM HEARINGS (Oct. 12, 2000), https:///www.congress.gov/106/crpt/hrpt977/CRPT-

23

106hrpt977.pdf. As explained by HHS, which administers the program, listed injuries “are

24

presumed to be caused by vaccines unless another cause is proven” if occurring within a given

25

time frame post-vaccination. Frequently Asked Questions, National Vaccine Injury

26

Compensation Program, HEALTH RESOURCES & SERVICES ADMINISTRATION,

27

https://www.hrsa.gov/vaccine-compensation/FAQ/index.html (last accessed Aug. 14, 2020).

28

Total compensation paid over the life of the VICP from FY 1988 through May 2019 is

52

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 73 of 115

1

approximately $4.1 billion. Data & Statistics, HEALTH RESOURCES & SERVICES

2

ADMINISTRATION (May 1, 2019), https://www.hrsa.gov/sites/default/files/hrsa/vaccine-

3

compensation/data/monthly-stats-may-2019.pdf.

4

136.

At the same time, the plight of America’s children is that 54% (40 million) of

5

them suffer from chronic illnesses such as deadly allergies, asthma, eczema, anxiety,

6

depression, sensory abnormalities; 13% (9 million) are in special education; 11% (8 million)

7

have Attention Deficit Hyperactivity Disorder (“ADHD”); 2.7% (2 million) have or will be

8

diagnosed with Autism; 0.0035% (260,000) will be diagnosed with cancer by age 19; and

9

49.5% of teens aged 13 to 18 have (or have had) a mental health disorder. See, e.g., Christina

10

D.Bethell, PhD, et al., A National and State Profile of Leading Health Problems and Health

11

Care Quality for US Children: Key Insurance Disparities and Across-State Variations,

12

ACADEMIC PEDIATRICS, Volume 11, Issue 3, Supplement, May–June 2011, pp. S22-S33,

13

https://www.sciencedirect.com/science/article/pii/S1876285910002500 [54% chronic illness];

14

Students with Disabilities, NATIONAL CENTER FOR EDUCATION STATISTICS (May 2020),

15

https://nces.ed.gov/programs/coe/indicator_cgg.asp [13% special education]; Susanna N.

16

Visser, MS et al., Trends in the Parent-Report of Health Care Provider-Diagnosed and

17

Medicated Attention-Deficit/Hyperactivity Disorder: United States, 2003–2011, JOURNAL OF

18

THE AMERICAN ACADEMY OF CHILD & ADOLESCENT PSYCHIATRY,

19

(January 2014), https://jaacap.org/article/S0890-8567(13)00594-7/fulltext [11% ADHD]. This

20

level of chronic illness and disability among children is unprecedented in the United States.

21

137.

Volume 53 Number 1

Significantly, no scientific studies have tested the entire immunization schedule

22

or compared the differences in health outcomes between children vaccinated according to the

23

CDC’s full 72-dose vaccine schedule and children who have remained partially, or completely,

24

unvaccinated. See Institute of Medicine, Childhood Immunization Schedule and Safety:

25

Stakeholder Concerns, Scientific Evidence, and Future Studies, NATIONAL ACADEMIES PRESS

26

(2013), pp. 5-6, https://doi.org/10.17226/13563. Simply put, no studies have refuted the

27

biologically-plausible hypothesis that the CDC’s vaccine schedule is contributing in some

28

degree to the epidemic of chronic childhood illnesses.

53

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 74 of 115

1

138.

Vaccines are among the pharmaceutical industry’s best-selling products. Andrew

2

Ward, Vaccines are among big pharma’s best-selling products, FINANCIAL TIMES (Apr. 24,

3

2016), https://www.ft.com/content/93374f4a-e538-11e5-a09b-1f8b0d268c39. According to

4

two recent market research reports, the global vaccine market was over $41 billion in 2019, is

5

projected to reach over $58 billion by 2024, and over $93 billion by 2026. Vaccines Market -

6

Global Forecast to 2024, MARKETSANDMARKETS (January 2020),

7

https://www.marketsandmarkets.com/Market-Reports/vaccine-technologies-market-1155.html;

8

Vaccines Market Size, Share & Industry Analysis, 2020-2027, FORTUNE BUSINESS INSIGHTS,

9

https://www.fortunebusinessinsights.com/industry-reports/vaccines-market-101769 (last

10
11

accessed Aug. 14, 2020).
139.

Yet, as bioethics professor Carl Elliott wrote in a July 2, 2020 New York Review

12

of Books article, “[I]t would also be a mistake to assume that drug makers will be honest and

13

open about their research results. It is not just that many have repeatedly failed to publish

14

unfavorable data. As the former editor of The British Medical Journal has written, many have

15

simply designed their research studies to produce the results they want. Medical journal editors

16

have been raising the alarm about this for over fifteen years now. Between 1991 and 2010,

17

according to Public Citizen, the pharmaceutical industry was the leading defrauder of the

18

federal government, as measured by penalties paid for violating the False Claims Act.” Carl

19

Elliott, An Ethical Path to a Covid Vaccine, NEW YORK REVIEW OF BOOKS (July 20, 2020),

20

https://www.nybooks.com/articles/2020/07/02/ethical-path-covid-19-vaccine/.

21

140.

In recent years, The Atlantic Monthly among others has published stories critical

22

of the CDC’s “internal scandal and funding issues.” See, e.g., Vann. R. Newkirk II, Is the CDC

23

Losing Control?, THE ATLANTIC (Feb. 3, 2018), https://www.theatlantic.com/politics/archive/

24

2018/02/cdc-scandal-preparedness-budget/552200/. And, during the current COVID-19

25

pandemic, journalists and public officials alike have increasingly questioned whether the CDC

26

is a truly reliable or up-to-date source of public health information. See, e.g., Alexis C.

27

Madrigal & Robinson Meyer, How Could the CDC Make That Mistake?, THE ATLANTIC (May

28

21, 2020), https://www.theatlantic.com/health/archive/2020/05/cdc-and-states-are-

54

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 75 of 115

1

misreporting-covid-19-test-data-pennsylvania-georgia-texas/611935/. On May 9, 2020, Dr.

2

Deborah Birx, the White House Coronavirus Response Coordinator, reportedly stated, “There

3

is nothing from the CDC that I can trust.” Josh Dawsey, Ashley Parker, Philip Rucker and

4

Yasmeen Abutaleb, As deaths mount, Trump tries to convince Americans it’s safe to inch back

5

to normal, WASHINGTON POST (May 9, 2020), https://www.washingtonpost.com/politics/as-

6

deaths-mount-trump-tries-to-convince-americans-its-safe-to-inch-back-to-

7

normal/2020/05/09/bf024fe6-9149-11ea-a9c0-73b93422d691_story.html (emphasis supplied).

8

Similarly, on June 3, 2020, Dr. Ashish Jha, the director of the Harvard Global Health Institute,

9

stated, “The CDC is no longer the reliable go-to place.” Eric Lipton, et al., The CDC waited

10

'its entire existence for this moment.' What went wrong?, NEW YORK TIMES (Jun. 2, 2020),

11

https://www.sfgate.com/news/article/The-CDC-Waited-Its-Entire-Existence-for-This-

12

15312642.php. CHD and RFK, Jr. have echoed many of their concerns, yet CHD has been

13

singled out for Facebook’s misleading “fact-checks,” and its falsely disparaging warning label

14

which trumpets the CDC “party line.”

15

E.

Material Questions of 5G Network Safety.

16

141.

According to the FCC, “[w]ithin the next few years, 5G networks . . . will make

17

possible once-unimaginable advances, such as self-driving cars and growth of the ‘Internet of

18

Things,’” i.e., the rapidly expanding collection of devices that collect, transmit and share data

19

via the internet. 5G networks “will increasingly need to rely on network densification, [which

20

entails] the deployment of far more numerous, smaller, lower-powered base stations or nodes

21

that are much more densely spaced.” United Keetoowah Band of Cherokee Indians in Okla. v.

22

FCC, 933 F.3d 728, 739 (D.C. Cir. 2019).

23

142.

Cellular wireless services, including cellular phones and other forms of wireless

24

data transmission, use pulsed and modulated radio frequency signals to transmit the data

25

wirelessly. Wireless service in the United States has mostly depended on large “microcell”

26

radio towers to transmit cell signal. However, to provide sufficient bandwidth to support

27

wirelessly interconnecting tens of billions more devices (see, e.g., Sundeep Rangan, Theodore

28

S. Rappaport & Elza Erkip, Millimeter-Wave Cellular Wireless Networks: Potentials and

55

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 76 of 115

1

Challenges, PROCEEDINGS OF THE IEEE | Vol. 102, No. 3, March 2014,

2

https://ecfsapi.fcc.gov/file/60001013329.pdf), companies offering the next generation of

3

wireless service — known as 5G — are in the process of adding hundreds of thousands of

4

densely-spaced, small, wireless facilities, or “small cells.” United Keetoowah Band of

5

Cherokee Indians in Okla. v. FCC, 933 F.3d at 732. These “small cell” antennas are largely

6

being deployed on utility poles and sometimes only a few feet from homes and children’s

7

bedrooms. Although small cells may use less power than big cell towers, because of their

8

proximity, the radiation exposure is exponentially higher.

9

143.

Due to their greater bandwidth, 5G networks can also be used as general internet

10

service providers for laptops and desktop computers, and thereby displace existing internet

11

service providers such as cable-internet. The increased speed is achieved partly by using

12

higher-frequency radio waves than current cellular networks. 5G, WIKIPEDIA,

13

https://en.wikipedia.org/wiki/5G (last accessed Aug. 14, 2020).

14

144.

A number of scientific studies illustrate the potential risks of human exposure to

15

radiofrequency or wireless technology radiation and electromagnetic fields (EMFs) from 5G

16

networks. See, e.g., A Rationale for Biologically-based Public Exposure Standards for

17

Electromagnetic Fields (Extremely Low Frequency and Radio Frequency), BIO-INITIATIVE

18

REPORT, https://bioinitiative.org/ (“bio-effects can occur … from just minutes of exposure”)

19

(last accessed Aug. 16, 2020). Many studies show profound neurological effects including

20

clear evidence of adverse effects from RF/EMF during the prenatal period and childhood. For

21

example, studies show that prenatal exposure can permanently affect brain neuro-development,

22

memory and behavior and can lead to ADHD. RF/EMFs Exposure can cause various

23

neurological problems including headaches, ringing in the ears, heart palpitations, sleep

24

problems, cognitive and memory problems and nose bleeds. Belyaev I, Dean A, Eger H, et al.,

25

EUROPAEM EMF Guideline 2016 for the prevention, diagnosis and treatment of EMF-related

26

health problems and illnesses, REV. ENVIRON HEALTH. 2016, 31(3), 363-397,

27

https://pubmed.ncbi.nlm.nih.gov/27454111/. The studies also establish Oxidative Stress as a

28

56

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 77 of 115

1

clear causal mechanism of harm. The evidence of profound harms may also contribute to the

2

exponential increase in sickness in children referenced supra.

3

145.

In November 2018, the results of a $30 million study published by the U.S.

4

National Toxicology Program (NTP) found “clear evidence” that two years of exposure to cell

5

phone Radio Frequency Radiation (RFR) increased cancer in rats. In November 2019, the NTP

6

published further results that also showed DNA damage. The Ramazzini Institute in Italy

7

replicated the key finding of the NTP using much weaker exposure levels to cell phone

8

radiation over the life of the rats. High Exposure to Radio Frequency Radiation Associated

9

With Cancer in Male Rats, NATIONAL INSTITUTE OF ENVIRONMENTAL HEALTH SCIENCES

10

(Nov. 1, 2018), https://www.niehs.nih.gov/news/newsroom/releases/2018/november1/

11

index.cfm. Thus, the Ramazzini Institute study, a €6 million study, extended the results of the

12

NTP study to far lower levels of radiation exposure, comparable to levels of radiation from cell

13

towers and therefore relevant to 5G networks. Falcioni L, Bua L, Tibaldi E, et al., Report of

14

final results regarding brain and heart tumors in Sprague-Dawley rats exposed from prenatal

15

life until natural death to mobile phone radiofrequency field representative of a 1.8 GHz GSM

16

base station environmental emission, ENVIRON RES. 2018; 165:496-503,

17

https://pubmed.ncbi.nlm.nih.gov/29530389/; see also Joel M. Moskowitz, We Have No Reason

18

to Believe 5G Is Safe, SCIENTIFIC AMERICAN (Oct. 17, 2019),

19

https://blogs.scientificamerican.com/observations/we-have-no-reason-to-believe-5g-is-safe/.

20

146.

In 2011 the International Agency on Research on Cancer (IARC) of the WHO

21

classified RF radiation including radiation from cell towers as a “possible” (2B) carcinogen in

22

humans. In its 2013 Monograph, IARC stated that while there is epidemiological evidence of

23

increased cancer risk in humans, more animals’ studies are needed for a higher classification.

24

Non-ionizing Radiation, Part 2: Radiofrequency Electromagnetic Fields, IARC Monographs

25

on the Evaluation of Carcinogenic Risks to Humans Volume 102, IARC Publications,

26

INTERNATIONAL AGENCY FOR RESEARCH ON CANCER, WORLD HEALTH ORGANIZATION,

27

https://publications.iarc.fr/126. The results of the NTP and the Ramazzini studies provide the

28

57

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1

“missing link.” Scientists including IARC and retired NTP/NIEHS scientists are calling for the

2

reclassification of RF as a “human carcinogen.”

3

147.

In December 2017, the California Department of Public Health (“CDPH”)

4

published guidelines in response to the available peer-reviewed scientific evidence that RFR

5

may cause DNA damage, reproduction harms, cancer and learning disabilities in humans,

6

among other effects. CDPH Director and State Public Health Officer Dr. Karen Smith stated

7

that “although the science is still evolving, there are concerns among some public health

8

professionals and members of the public regarding long-term, high use exposure to the energy

9

emitted by cell phones.” CDPH Issues Guidelines on How to Reduce Exposure to Radio

10

Frequency Energy from Cell Phones, Office of Public Affairs, CALIF. DEPT. OF PUBLIC

11

HEALTH, (Dec. 13, 2017), https://www.cdph.ca.gov/Programs/OPA/Pages/NR17-086.aspx. See

12

also Cal. Gov. Code § 659641.1, subd. (f) (exempting wireless facilities on fire department

13

facilities from mandatory approval after some firefighters developed severe neurological

14

injuries from cell towers on their stations). In 2014 the California Medical Association passed

15

a resolution calling upon the FCC to update its health guidelines as the scientific evidence

16

showing profound adverse effects from wireless technologies. California Medical Association

17

House of Delegates Resolution, Wireless Standards Reevaluation, 2014 Resolution 107,

18

CALIFORNIA MEDICAL ASSOCIATION (adopted Dec. 7, 2014),

19

https://ecfsapi.fcc.gov/file/1092989731923/30-Attachment%2030-

20

%20California%20Medical%20Association%20Resolution.pdf.

21

148.

In 2015, over 200 scientists from 42 countries who collectively published over

22

2,000 peer-reviewed studies on RF/EMF, sent an appeal the “EMF Scientist Appeal” letter to

23

the United Nations and WHO, stating: “Based upon peer reviewed, published research, we

24

have serious concerns regarding the ubiquitous and increasing exposure to … wireless

25

devices.” Scientists call for Protection from Non-ionizing Electromagnetic Field Exposure,

26

EMF SCIENTIST, https://www.emfscientist.org/index.php/emf-scientist-appeal (last accessed

27

Aug. 14, 2020).

28

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1

149.

The 5G Appeal was prepared in 2017 by scientists and doctors who called on the

2

European Union (“EU”) to impose a moratorium on the roll out of 5G due to serious potential

3

health effects from 5G technology. As of May 18, 2020, 377 scientists and medical doctors

4

have signed the 5G Appeal. The 5G Appeal urges the EU to “take all reasonable measures to

5

halt the 5G RF-EMF [“radio frequency-electromagnetic fields”] expansion until independent

6

scientists can assure that 5G and the total radiation levels caused by RF-EMF (5G together

7

with 2G, 3G, 4G, and WiFi) will not be harmful for EU citizens, especially infants, children

8

and pregnant women, as well as the environment.”

9

150.

According to the 5G Appeal, “RF-EMF has been proven to be harmful for

10

humans and the environment.” Effects include “increased cancer risk; cellular stress, increase

11

in harmful free radicals, genetic damage, structural and functional changes of the reproductive

12

system, learning and memory deficits, neurological disorders, and negative impacts on the

13

general well-being in humans. Damage goes well beyond the human race, as there is growing

14

evidence of harmful effects to both plant and animal life.” The 5G Appeal concludes that an

15

epidemic of sickness from this radiation already exists and “inaction is a cost to society and is

16

not an option anymore.” About, 5G APPEAL, http://www.5gappeal.eu/about/ (last accssed Aug.

17

14, 2020) (emphasis added).

18

F.

19

Facebook’s Adverse Motives.
1.

Zuckerberg’s Corporate Biases.

20

151.

Zuckerberg has donated at least $25 million to the CDC Foundation.

21

152.

At an October 22, 2019 U.S. House Committee on Financial Services hearing,

22

Congressman Bill Posey (R-FL) had the following exchange with Zuckerberg, which revealed

23

a strikingly unscientific view of the scientific method with respect to vaccines:

24
25
26
27

Representative Posey: I support vaccinations of children and adults,
but I also support open and frank communication about the risks of
vaccination. You testified that you believe in giving people a voice.
Is Facebook able to assure us it will support users’ fair and open
discussions and communications about the risks as well as the
benefits of vaccinations?

28

59

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1

Mr. Zuckerberg: We do care deeply about giving people a voice
and freedom ofexpression. At the same time, we hear consistently
from our community that people want us to stop the spread of
misinformation. So what we do is try to focus on misinformation
that has the potential to lead to imminent or physical harm, and that
can include especially misleading health advice.

2
3
4
5

Representative Posey: Are you 100% confident that vaccines pose
no injury to any person on this planet?

6
7

Mr. Zuckerberg: I don’t think it would be possible for anyone to be
100 percent confident but my understanding of the scientific
consensus is that it’s important that people get their vaccines.

8
9
10

Representative Posey: Shouldn’t somebody have the opportunity to
express an opinion different from yours?

11
12

15

Mr. Zuckerberg: If someone wants to post anti-vaccination content
or they want to join a group where people are discussing that, we
don’t stop them from doing that. But […] we don’t go out of our
way to make sure our group recommendation systems show people
or encourage people to join those groups. We discourage that.

16

Facebook CEO Testimony Before House Financial Services Committee [Video], C-SPAN (Oct.

17

23, 2019), https://www.c-span.org/video/?465293-1/facebook-ceo-testimony-house-financial-

18

services-committee (emphasis added).

13
14

19

153.

Yet, by contrast, when it comes to “political speech,” Zuckerberg claims to be a

20

First Amendment absolutist. In a May 27, 2020 interview with Fox TV News anchor Dana

21

Perino, Zuckerberg rebuked Twitter for its decision to tag two of President Donald Trump’s

22

tweets about mail-in voting with fact-check links. Zuckerberg said, “I just believe strongly that

23

Facebook shouldn't be the arbiter of truth of everything that people say online. Private

24

companies probably shouldn't be, especially these platform companies, shouldn't be in the

25

position of doing that.” Rachel Sandler, Zuckerberg Criticizes Twitter For Fact-Checking

26

Trump Tweets, FORBES (May 27, 2020), https://www.forbes.com/sites/rachelsandler/

27

2020/05/27/zuckerberg-criticizes-twitter-for-fact-checking-trump-tweets/#2aec97616f7a

28

(emphasis added). This is a very significant admission by Facebook’s chairman even as he and

60

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 81 of 115

1

his company purport to “arbitrate the truth” of open scientific controversies when doing so

2

advances their business interests.

3

154.

On June 2, 2020, Zuckerberg held a “town hall” with Facebook employees who

4

believe the company should take action on a controversial post by President Trump that “when

5

the looting begins, the shooting begins[,]” which many people interpreted as a call for violence

6

in nationwide protests over the death of George Floyd. Twitter put a warning label over the

7

tweet, flagging it as violent content that violated that company's policies, but the tweet was

8

being left up because it was newsworthy. Facebook declined to take any action on a similar

9

post on its site.

10

155.

At the “town hall,” Zuckerberg defended his decision that the post did not

11

constitute a policy violation, as he “personally walked employees through different

12

interpretations of Trump's language.” Zuckerberg’s personal involvement in the decision is

13

“characteristic of the way he has handled controversial policy choices over the last several

14

years[.] [. . .] His leadership style contrasts with Twitter CEO Jack Dorsey, who tends to

15

delegate policy decisions to his deputies. Zuckerberg also made the decision not to take down a

16

video of House Speaker Nancy Pelosi that was manipulated to make her appear drunk. He

17

made a personal call not to fact check political advertising, despite frustration from the public

18

and from employees, according to a person familiar with the decision-making.” Elizabeth

19

Dwoskin, Zuckerberg defends decisions on Trump as Facebook employee unrest grows,

20

WASHINGTON POST (Jun. 2, 2020), https://www.sfgate.com/news/article/Zuckerberg-defends-

21

decisions-on-Trump-as-Facebook-15311764.php. Zuckerberg justified his decision not to act

22

against the President’s posts, citing his responsibility as the “leader of an institution committed

23

to free expression.” Donie O'Sullivan & Brian Fung, Mark Zuckerberg tries to explain his

24

inaction on Trump posts to outraged staff, CNN BUSINESS (Jun. 2, 2020),

25

https://www.cnn.com/2020/06/02/tech/facebook-all-hands-trump/index.html. Tellingly,

26

Zuckerberg’s professed commitment to “free expression” does not extend to truthful

27

communication about vaccine safety or 5G network health risks.

28

61

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 82 of 115

1
2

2.
156.

Vaccine-Maker Ad Revenue.

Facebook earns revenue primarily through the sale of targeted advertising that

3

appears on members’ Facebook pages. See, e.g., Fraley v. Facebook, 830 F. Supp. 2d 785, 791

4

(N.D. Cal. 2011). Facebook generates 98 percent of its revenue through ads. It netted $17.4

5

billion from advertising in its most recent quarter. Tiffany Hsu & Cecilia Kang, “Morally

6

Impossible”: Some Advertisers Take a Timeout From Facebook, NEW YORK TIMES (Jun. 9,

7

2020), https://www.nytimes.com/2020/06/09/business/media/facebook-advertisers-trump-

8

zuckerberg.html?searchResultPosition=2.

9

157.

Beginning as early as 2016, Facebook initiated programs to capture an ever

10

greater share of the pharmaceutical direct-to-consumer advertising market. That year,

11

Facebook unveiled a new feature enabling pharmaceutical companies to comply with

12

regulatory restrictions on advertising by showing “important safety information,” or ISI, in a

13

scrolling section featured below the ad. Beth Snyder Bulik, Bayer blazes new trails for pharma

14

with Betaseron Facebook ad, FIERCEPHARMA (Oct. 30, 2016),

15

https://www.fiercepharma.com/marketing/bayer-s-first-facebook-ad-campaign-features-first-

16

scrolling-isi-a-pharma-ad-facebook-ad. That feature has paid off hugely for Facebook.

17
18
19
20
21
22
23
24
25
26
27
28

158.

In a Washington Post article entitled “Facebook has a prescription: More

pharmaceutical ads,” dated March 3, 2020, journalist Natasha Tiku wrote:
After years of avoiding social media, drug companies are growing
bolder about advertising on Facebook and other social networks,
according to interviews with advertising executives, marketers,
health-care privacy researchers and patient advocates. That is
exposing loopholes around the way data can be used to show
consumers relevant ads about their personal health, even as both
social networks and pharmaceutical manufacturers disavow
targeting ads to people based on their medical conditions.
Ads promoting prescription drugs are popping up on Facebook for
depression, HIV and cancer. Spending on Facebook mobile ads
alone by pharmaceutical and health-care brands reached nearly a
billion dollars in 2019, nearly tripling over two years, according to
Pathmatics, an advertising analytics company. Facebook offers

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1

tools to help drug companies stay compliant with rules about
disclosing safety information or reporting side effects.

2

But seeing an ad for a drug designed to treat a person’s particular
health condition in the relatively intimate setting of a social media
feed — amid pictures of friends and links to news articles — can
feel more intrusive than elsewhere online. The same opaque
Facebook systems that help place an ad for a political campaign or
a new shoe in a user’s feed also can be used by pharmaceutical
companies, allowing them to target consumers who match certain
characteristics or had visited a particular website in the past.

3
4
5
6
7
8

[…]

9
10

The growing concern about targeted pharmaceutical ads is
unfolding against an expansion at Facebook focusing more
generally on health — including encouraging more groups, where
community members gather to discuss certain topics, like the one
Downing moderates. It’s also been actively soliciting more healthcare-focused ads.

11
12
13
14
15

[. . .]

16

Pfizer, Allergan, Merck and GlaxoSmithKline were among the top
10 spenders on Facebook mobile ads in 2019, along with fastgrowing health start-ups such as SmileDirectClub and Roman,
according to Pathmatics.

17
18
19
20

Natasha Tiku, Facebook has a prescription: More pharmaceutical ads, WASHINGTON POST

21

(Mar. 3, 2020), https://www.washingtonpost.com/technology/2020/03/03/facebook-pharma-

22

ads/.

23

159.

As alleged supra, Merck and GlaxoSmithKline are two of the four

24

pharmaceutical manufacturers (Pfizer and Sanofi are the others) which control the United

25

States vaccine market.

26
27
28

3.
160.

Vaccine Development.

In December 2015, Zuckerberg and his wife Dr. Priscilla Chan co-founded the

Chan Zuckerberg Initiative, LLC, (“CZI”), a for-profit corporation, of which he is chairman,

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1

chief executive officer, and co-managing member, with a pledge to “donate” (i.e., transfer) 99

2

percent of their Facebook shares, then valued at $45 billion. CZI and CZ Biohub, its wholly-

3

owned subsidiary, have set as their “moon shot mission” the goal “to cure all disease on the

4

planet within the Facebook executive’s childrens’ lifetimes.” The CZI Infectious Disease

5

Initiative seeks to develop new drugs, diagnostic tests and vaccines that could aid the fight

6

against diseases like HIV, Ebola and newly emerging threats like Zika. CZI Announces the

7

Chan Zuckerberg Biohub, CHAN ZUCKERBERG INITIATIVE (Sept. 23, 2016),

8

https://chanzuckerberg.com/newsroom/czi-announces-the-chan-zuckerberg-biohub/. CZI

9

purports that “[o]ur scientists and engineers will apply the most advanced technologies

10

available today and work to invent new tools as well to support the global fight against

11

infectious diseases. The work will be clustered around four key areas: diagnostic tests, new

12

drugs, vaccines and rapid response.”

13

161.

With respect to vaccines specifically, CZI’s online statement purports that:
We’re seeking new approaches to overcoming challenges that have
stymied vaccine development for diseases like HIV/AIDS and
tuberculosis. To push forward on vaccine development, we’ll use
recent advances emerging from structural biology, machine
learning and computer-assisted protein design to establish a new
approach for creating vaccine candidates. And we’ll adopt
“machine learning” strategies to develop powerful computer
programs that can sort through large volumes of scientific data for
insights.

14
15
16
17
18
19
20

We believe machine learning technology, now used for things like
driverless car and threat assessments, could be particularly
effective for probing clinical trial data for insights existing
analytical methods fail to find.

21
22
23
24

Infectious Disease Initiative, CHAN ZUCKERBERG BIOHUB, https://www.czbiohub.org/projects/

25

infectious-disease/ (last accessed Aug. 15, 2020).

26

162.

In 2018, Zuckerberg purported to transfer 29 million of his Facebook shares,

27

worth $5.3 billion, to CZI. Overall, the CZ Biohub (CZB) is expected to receive a transfer of

28

$600 million over the course of ten years from Zuckerberg. The CZB provides $50 million in

64

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 85 of 115

1

funding for researchers based in the San Francisco area at UC Berkeley, Stanford University,

2

and the University of California at San Francisco (UCSF). 750 researchers applied for the

3

grants, and 47 were awarded cash grants of up to $1.5 million, presumably in exchange for

4

patent ownership transfers to CZB, and thereby to Zuckerberg as controlling co-owner and co-

5

manager. The Chan Zuckerberg Biohub: Seeking to Cure All Diseases, BIOLEGEND BLOG,

6

https://www.biolegend.com/ja-jp/blog/the-chan-zuckerberg-biohub-seeking-to-cure-all-

7

diseases (last accessed Aug. 15, 2020).

8
9

4.
163.

5G Networks.

Over the past five years, Facebook has made significant investments in

10

developing 5G home systems, 60 GHz antenna infrastructure for cities (“Project Telegraph”),

11

and 5G for rural areas (“Project Aries”), as well as satellites. Facebook purchased Inovi, a 5G

12

company, which it used to build a trial 5G network in San Jose, California and on Facebook’s

13

“campus” to test the viability and cost-effectiveness of 5G for mass deployment. Facebook also

14

spearheaded the Telecom Infrastructure Project (“TIP”). By building a network of companies

15

focused on 5G, Facebook seeks to harmonize the technical and standardization challenges of

16

rolling out the 5G network. Bijan Khosravi, Facebook's New Focus On 5G and Golden

17

Opportunity for Entrepreneurs, FORBES (Apr. 30, 2018), https://www.forbes.com/sites/

18

bijankhosravi/2018/04/30/todays-black-clouds-over-facebook-will-part-look-at-their-golden-

19

ideas-in-5g/#37c15fdd313b.

20

164.

Facebook also collaborates with Common Networks, a United States company,

21

to deliver ultra high-speed gigabit internet service to residential customers. Common Networks

22

is using Facebook’s Terragraph technology, which employs high-frequency radio waves to

23

speed up networks in locations with dense populations, as a replacement for standard home

24

broadband. Katie Collins, Facebook and partners collaborate to bring 5G wireless internet to

25

California homes, CNET, https://www.cnet.com/news/facebook-brings-faster-than-fiber-5g-

26

wireless-connectivity-to-california/.

27
28

165.

Facebook's subsidiary PointView Tech has designed an internet satellite (called

“Athena”) to provide broadband access to unserved and underserved areas throughout the

65

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 86 of 115

1

world. Facebook’s designers intend that Athena will deliver data 10-times faster than SpaceX’s

2

Starlink satellites. Mark Harris, Facebook May Have Secret Plans to Build a Satellite-Based

3

Internet, IEEE (May 2, 2018), https://spectrum.ieee.org/tech-talk/aerospace/satellites/facebook-

4

may-have-secret-plans-to-launch-a-internet-satellite. To support this expansion, Facebook

5

among other companies and governments have plans to launch collectively nearly 50,000

6

satellites to provide 5G and Wi-Fi services everywhere on Earth. See, e.g., Henry, C.,

7

Facebook willing to invest in satellite user equipment, SPACE NEWS (March 8, 2017

8

(https://spacenews.com/facebook-willing-to-invest-in-satellite-user-equipment/.

9

166.

Facebook recently announced its plan to construct an undersea cable circling the

10

African continent (“Project Simba”), to complement its transatlantic cable “Marea.” Facebook

11

intends that this global wifi infrastructure will support its “Free Basics” project, which

12

provides cheap internet services to the developing world. It currently operates in 63 countries.

13

167.

The greater bandwidth and lower latency (delay) of 5G will allow Facebook to

14

display more advertising content to its users at faster browsing speeds, generating ever more ad

15

revenue for Facebook. It also stands to benefit financially from expanded global Internet access

16

to its social media platform through expanding 5G networks. See, e.g., Jessi Hempel, Inside

17

Facebook’s Ambitious Plan to Connect the Whole World, WIRED (Jan. 19, 2016),

18

https://www.wired.com/2016/01/facebook-zuckerberg-internet-org/.

19

168.

Facebook also profits from expanded 5G networks, which can leverage other

20

substantial investments it has made in new technologies. In 2014, Facebook acquired the

21

virtual reality company Oculus for $2 billion, and since then, Facebook has filed a number of

22

related patents in the field of augmented reality technology (AR, VR, and home hardware

23

products). See, e.g., Christopher Yasiejko & Sarah Frier, Facebook’s Augmented Reality Push

24

Causes Leap in U.S. Patents, BLOOMBERG (Jan. 14, 2020),

25

https://www.bloomberg.com/news/articles/2020-01-14/facebook-s-leap-in-u-s-patents-hints-at-

26

eye-on-virtual-reality (Zuckerberg opinion that “at some point in the 2020’s, we will get

27

breakthrough augmented reality glasses that will redefine our relationship with technology”);

28

Leo Sun, Will Facebook Redefine Augmented Reality With Stella and Orion?, MOTLEY FOOL

66

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 87 of 115

1

(Sept. 20, 2019), https://www.fool.com/investing/2019/09/20/will-facebook-redefine-

2

augmented-reality-with-stel.aspx (With respect to augmented reality, Facebook plans to

3

manufacture “smartglasses” which it has ‘codenamed’ ‘Stella,” set to launch between 2023 and

4

2025, and a more advanced model it has ‘codenamed’ ‘Orion.’). The success of these AR and

5

other products depends to a significant extent (if not entirely) on Facebook’s capacity to

6

exploit 5G networks’ increased bandwidth and speed.

7

169.

Additionally, Facebook has solidified its position as a leading developer of

8

artificial intelligence (“AI”) technology. 5G helps enable both AI and drone technology. Tom

9

Taulli, Facebook AI (Artificial Intelligence): Will M&A Help?, FORBES (Feb. 15, 2020),

10

https://www.forbes.com/sites/tomtaulli/2020/02/15/facebook-ai-artificial-intelligence-will-ma-

11

help/#104eed427664. Facebook purportedly has also been developing solar-powered drone

12

technology. Jon Russell, Facebook is reportedly testing solar-powered internet drones again

13

— this time with Airbus, TECHCRUNCH (Jan. 21, 2019), https://techcrunch.com/2019/01/21/

14

facebook-airbus-solar-drones-internet-program/?guccounter=1.

15

170.

Finally, Facebook stands to benefit from its investments in the “Internet of

16

Things” infrastructure that depends on 5G. At present, roughly 8.4 billion ‘things’ make up this

17

‘universe,’ - from cars to appliances to wearable tech – which represents a 31% increase in the

18

past four years. By the year 2025, that number may increase to 55 billion internet-enabled

19

devices. The Internet of Things will thrive on 5G technology, VERIZON (Jun. 12, 2018),

20

https://www.verizon.com/about/our-company/5g/internet-things-will-thrive-5g-technology.

21

Facebook’s business plan contemplates widespread exploitation of 5G networks across the

22

globe to drive its platform’s profitability.

23
24

FIRST CAUSE OF ACTION

25

(FIRST AND FIFTH AMENDMENTS — BIVENS VIOLATIONS)

26

Defendants Facebook, Zuckerberg, Science Feedback, Poynter, Politifact, and Does 1-20

27
28

171.

Paragraphs 1 through 170 are realleged and incorporated as if fully set forth

herein.

67

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 88 of 115

1

172.

Plaintiff seeks an implied private damages remedy against private defendants

2

who act jointly or in concert with federal government agencies or actors to deny Plaintiff’s

3

First Amendment speech and Fifth Amendment property rights. Davis v. Passman, 442 U.S.

4

228 (1979) (implied damages remedy under Fifth Amendment Due Process Clause); Bivens v.

5

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (Fourth

6

Amendment). The private cause of action is implied under 28 U.S.C. § 1331 to vindicate

7

constitutional rights which would otherwise go unredressed. By analogy to 42 U.S.C. § 1983,

8

Plaintiff must show both (1) the deprivation of a right secured by the Constitution and laws of

9

the United States, and (2) that the deprivation was committed by a person acting under color of

10
11

[federal] law. Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
173.

The purpose of Bivens is to deter individual federal officers from committing

12

constitutional violations, and the constitutional tort remedy against private entities is foreclosed

13

only where claimant has other effective remedies. Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

14

71 (2001); cf. Davis v. Passman, 442 U.S. at 245 (“For Davis, as for Bivens, it is damages or

15

nothing.”). Here, too, a private remedy should be implied because Plaintiff has no other

16

recourse to right the wrongs of all defendants, corporate and individual.

17

174.

The First Amendment protects Plaintiff’s rights of free speech and association.

18

Under the First Amendment, Americans have the right to hear all sides of every issue and to

19

make their own judgments about those issues without government interference or limitations.

20

Content-based restrictions on speech are presumptively unconstitutional, and courts analyze

21

such restrictions under strict scrutiny. It is axiomatic that public agencies such as the CDC and

22

WHO could not themselves directly censor or issue a prior restraint upon Plaintiff’s online

23

speech. See, e.g., Freedman v. Maryland, 380 U.S. 51, 59 (1965) (motion picture exhibition

24

censoring panel could prohibit screening of films only if it assured exhibitor “that the censor

25

will, within a specified brief period, either issue a license or go to court to restrain showing the

26

film”); Speiser v. Randall, 357 U.S. 513, 526 (1958) (“Where the transcendent value of speech

27

is involved, due process certainly requires . . . that the State bear the burden of persuasion to

28

show that the appellants engaged in criminal speech.”). So, here, the judicial branch must

68

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 89 of 115

1

affirm a bedrock principle of liberty that governmental agencies cannot legally “sub-contract”

2

or “privatize” the role of public censor to Facebook as an end-run around the Constitution.

3

Facebook’s actions, taken “under color of” federal law, Villegas v. Gilroy Garlic Festival

4

Ass'n, 541 F.3d 950, 954 (9th Cir. 2008) (en banc), constitute a violation of Plaintiff’s

5

constitutional free speech rights.

6

175.

Defendants’ deprivation of Plaintiff’s federal rights is “fairly attributable” to the

7

government, Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982), as it was taken with

8

significant encouragement from, and in close consultation with, governmental agencies and

9

actors. Franklin v. Fox, 312 F.3d 423, 444-45 (9th Cir. 2002). Ultimately, joint action exists

10

when the government has “‘so far insinuated itself into a position of interdependence with [the

11

private entity] that it must be recognized as a joint participant in the challenged activity.’”

12

Gorenc v. Salt River Project Agric. Improvement & Power Dist., 869 F.2d 503, 507 (9th Cir.

13

1989) (emphases added). Defendants’ misconduct is a far cry from “merely hosting speech by

14

others.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019); Fed. Agency

15

of News LLC v. Facebook, Inc. 2020 U.S. Dist. LEXIS 6159, *26 (N.D. Cal. 2020).

16

176.

Specifically, the corporate and individual defendants have acted in concert with

17

Rep. Schiff, federal officials at the CDC, and under their aegis, the WHO, a United Nations

18

specialized agency acting with the consent of the federal government, to deprive Plaintiff of its

19

constitutional free expression rights. At all times relevant hereto, the United States was a

20

member of the WHO. Under Article 71 of its Constitution, the WHO may only consult and

21

cooperate with non-governmental national organizations with the consent of the Government

22

concerned. Basic Documents, WORLD HEALTH ORGANIATION, supra, https://apps.who.int/

23

gb/bd/pdf_files/BD_49th-en.pdf#page=1 (emphasis added).

24

177.

Facebook willfully participated in joint action with Rep. Schiff, CDC and/or

25

WHO officials or their agents to “police” CDC and WHO policies through Facebook’s

26

signature algorithms and machine learning to define, identify, label as “false news” and/or

27

censor Plaintiff’s speech with respect to vaccine-related speech. For Bivens purposes, the

28

69

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 90 of 115

1

WHO must be recognized as a public entity, particularly when its charter requires official

2

consent for its involvement with Facebook.

3

178.

Rep. Schiff’s February 14, 2019 public letter to Zuckerberg deployed the term

4

“vaccine misinformation” as it has been used by the CDC and WHO, as a euphemism for any

5

expression of skepticism toward government or pharmaceutical industry pronouncements

6

about vaccine safety or efficacy, regardless of its truth. Rep. Schiff also forcefully encouraged

7

Facebook to refer users to “authoritative” sources of information, i.e., the CDC and/or WHO.

8

179.

On March 7, 2019, with scant regard for CHD’s nine-page letter rebuttal,

9

Facebook publicly cited the CDC and WHO as the sources of Facebook’s initiative to identify

10

and “take action against verifiable vaccine hoaxes,” including removing such content from its

11

platform. Facebook also identified those governmental agencies as the sources of affirmative

12

information which Facebook would instead provide to its members, by posting that content at

13

the top of results for related searches, on pages discussing the topic, and on invitations to join

14

groups about the topic. Combatting Vaccine Misinformation, FACEBOOK, supra,

15

https://about.fb.com/news/2019/03/combatting-vaccine-misinformation/. The same day that

16

Facebook published its Warning Label on CHD’s page, the WHO publicly boasted that

17

Facebook’s effort was the product of “several months of discussion” between the two. Vaccine

18

Misinformation: Statement by WHO Director-General on Facebook and Instagram, supra,

19

https://www.who.int/news-room/detail/04-09-2019-vaccine-misinformation-statement-by-who-

20

director-general-on-facebook-and-instagram (emphasis added). Unlike Fed. Agency of News

21

LLC v. Facebook, Inc. 2020 U.S. Dist. LEXIS 6159 at *39, Facebook’s consultation and joint

22

action with the CDC and WHO predates and provides the template, if not the technical means,

23

by which Facebook has injured Plaintiff.

24

180.

Moreover, defendants integrated WHO and CDC definitions of “vaccine hoax”

25

into the algorithms and machine learning by which they have identified CHD’s content, which

26

is often flagged merely because it is critical of those same agencies as “biased”, “unreliable”,

27

and “out-of-date.” Science Feedback’s “fact-checker” responses merely cite to those flawed

28

CDC studies of which Plaintiff is justly critical. Essentially, the government furnished critical

70

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 91 of 115

1

information to Facebook, which Facebook then willfully used to effectuate its misinformation

2

and agitprop scheme. Defendants’ behavior qualifies as “state action” under the joint action

3

test due to their active cooperation and interdependence with the CDC and WHO. On the

4

public record, there is a “sufficiently close nexus” or symbiosis between the federal

5

government and the challenged actions of defendants that the actions of the latter may be fairly

6

treated as those of the government itself. Jackson v. Metropolitan Edison Co., 419 U.S. 345,

7

351 (1974). The CDC’s and WHO’s open and extensive coordination with Facebook shows

8

“state action” in furtherance of an agreement between the government and a private party for

9

purposes of Plaintiff’s Bivens claim.

10

181.

Rep. Schiff also acted “under color of federal law” in issuing his pointed request

11

to Facebook to censor and remove “vaccine misinformation” from its platform. Thus, Rep.

12

Schiff’s conditional notice to remove Facebook’s Section 230 immunity also constitutes

13

“significant encouragement, either overt or covert, that the [private actor's] choice must in law

14

be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

15

182.

It is well-established that, as a general rule, the government “may not suppress

16

lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition,

17

535 U. S., 234, 255 (2002). Facebook has closely coordinated with government actors in the

18

design of its aims, and the technical means by which Facebook applies public agency

19

definitions and literature to accomplish their jointly-held goals: to identify, warn against,

20

purportedly “rebut,” and censor so-called “vaccine hoax” speech. Facebook’s actions in

21

censoring CHD’s protected speech amount to state action for purposes of the First

22

Amendment. See, e.g., Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983).

23

183.

In the typical case raising a state action issue, a private party has taken the

24

decisive step that caused the harm to the Plaintiff, and the question is whether the State was

25

sufficiently involved to treat that decisive conduct as state action. Nat'l Collegiate Athletic

26

Ass'n. v. Tarkanian, 488 U.S. 179, 192, 102 L. Ed. 2d 469, 109 S. Ct. 454 (1988). Beyond the

27

public record cited supra, the missing pieces of official “involvement” are within the Facebook

28

defendants’ possession, custody, and control. Plaintiff requires judicial process to obtain

71

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 92 of 115

1

defendants’ records and recollections of the “who, what, when, where, why, and how” of

2

Facebook’s collaboration with Rep. Schiff, the CDC and WHO, the CDC Foundation, and/or

3

others under their aegis, to design, implement, and monitor Facebook’s “vaccine

4

misinformation” algorithm for identifying anti-CHD content, and/or to supervise or monitor

5

Facebook “fact-checkers” opposition articles.

6

184.

Facebook violated Plaintiff’s First Amendment rights by labeling CHD’s content

7

“False Information,” and taking other steps effectively to censor or block content from users.

8

Facebook took these actions against Plaintiff in an effort to silence and deter its free speech

9

solely on account of their viewpoint. The case raises an urgent wrong that will go unredressed

10
11

absent a judicial remedy fitted to the high stakes of speech suppression in a free society.
185.

In addition, the Fifth Amendment provides that “[n]o person shall be . . .

12

deprived of . . . property, without due process of law; nor shall private property be taken for

13

public use, without just compensation.” U.S. Const. amend. V. In May 2019, Facebook

14

permanently disabled the “donate” button on CHD’s Facebook page, for and in which action

15

Facebook received significant encouragement from the government. Cf. Del's Big Saver Foods,

16

Inc. v. Carpenter Cook, Inc., 795 F.2d 1344, 1346 (7th Cir. 1986) (“A state cannot avoid its

17

obligations under the due process clause by delegating to private persons the authority to

18

deprive people of their property without due process of law.”). And, as Rep. Schiff requested,

19

Facebook also refused to carry CHD’s advertising of its fundraising campaigns.

20

186.

Facebook misrepresented to CHD as its rationale that CHD had violated its

21

fundraising terms. But, in actuality, Facebook took these punitive actions to squelch CHD’s

22

viewpoint by cutting off its donations. Defendants’ actions amount to an unlawful deprivation

23

or “taking” of Plaintiff’s property interests in its own fundraising functions.

24

187.

“[T]he existence of a property interest is determined by reference to ‘existing

25

rules or understandings that stem from an independent source such as state law.’” Phillips v.

26

Washington Legal Foundation, 524 U.S. 156, 164 (1998) (quoting Board of Regents of State

27

Colleges v. Roth, 408 U.S. 564, 577 (1972)). Certainly, by that measure, the funding button is a

28

“thing of value” to CHD as its beneficial owner, and a valid property interest by means of

72

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 93 of 115

1

which CHD raised $41,241 in user donations from January to May 2019 alone. See, e.g.,

2

Boston Chamber of Commerce v. Boston, 217 U.S. 189, 195 (1910) (Holmes, J.) (“the question

3

is what has the owner lost, not what has the taker gained”). Indeed, it may be said that

4

Facebook’s fundraising function is as much a lifeblood for CHD as it is for many other

5

501(c)(3) organizations, and that the power to remove it at the government’s behest is the

6

power to destroy these charitable organizations.

7

188.

Facebook violated Plaintiff’s Fifth Amendment rights by confiscating its

8

fundraising functions under color of law without just compensation or due process. Facebook

9

took these actions against CHD in order to snuff out CHD’s ability to raise funds, solely on

10

account of CHD’s viewpoint. Defendants’ removal of the donate button is conduct suggesting

11

that CHD is unworthy of monetary contributions and, thus, the object of special opprobrium,

12

all damaging to CHD’s reputation and its ability to sustain itself. This represents another

13

urgent wrong that will go unredressed absent a judicial remedy fitted to the high stakes of

14

officially sponsored viewpoint-suppression in a free society.

15
16

SECOND CAUSE OF ACTION

17

(LANHAM ACT VIOLATIONS — 15 U.S.C. § 1125(A))

18

Defendants Facebook, Zuckerberg, Science Feedback, Poynter, Politifact, and Does 1-20

19
20
21

189.

Paragraphs 1 through 188 are realleged and incorporated as if fully set forth

190.

The elements of a false promotion claim under the Lanham Act, 15 U.S.C.

herein.

22

§ 1125(a)(1)(B), are: (1) in an advertisement or promotion, defendants made false statements

23

of fact about its own or another’s services; (2) the promotion actually deceived or has the

24

tendency to deceive a substantial segment of their audience; (3) such deception is material, in

25

that it is likely to influence the purchasing decision; (4) defendants caused their falsely

26

promoted services to enter interstate commerce; and (5) Plaintiff has been or is likely to be

27

injured as the result of the foregoing either by direct diversion of sales from themselves to

28

defendants, or by lessening of the goodwill which its services enjoy with the buying public.

73

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 94 of 115

1

Rice v. Fox Broad Co., 33 F.3d 1170, 1180 (9th Cir. 2003). Facebook’s warning label and

2

“fact-checks” on CHD’s page violate the Lanham Act in that these are (1) commercial speech;

3

(2) by defendants who or whose privities are in commercial competition with Plaintiff; (3) for

4

the purpose of influencing consumers to buy defendants’ goods or services, or to lessen the

5

goodwill which CHD’s services enjoy with the contributing public; and (4) disseminated

6

sufficiently to the relevant purchasing public to constitute “promotion” within that industry.

7

Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999).

8

Facebook and the individual defendants made, authored, and published the warning label and

9

“fact-checks” on CHD’s page in order to deter Plaintiff’s followers and other consumers from

10

listening to, trusting, and relying on Plaintiff’s content, and donating or contributing to

11

Plaintiff. By warning consumers instead to “go to CDC.gov” for “reliable and up-to-date

12

[vaccine] information,” defendants intended to persuade consumers instead to follow the

13

CDC’s recommendations to get the vaccines produced by its major advertisers, Merck, GSK,

14

Sanofi, and Pfizer, who buy $1 billion per annum in advertisements from Facebook.

15

191.

The Lanham Act is not strictly limited to conduct that is unfair to a direct

16

competitor, if defendant is affiliated with a competitor. Here, it suffices that defendants have

17

actively cooperated with the CDC and WHO, with whom Plaintiff competes in the marketplace

18

of ideas concerning genuine scientific inquiry into vaccine safety, and that Plaintiff competes

19

with defendants in that same marketplace with respect to 5G network safety. Facebook is

20

engaged in promoting competitive products through its pharmaceutical manufacturer

21

advertisers, and competitive services through its affiliation with the CDC and WHO. See, e.g.,

22

Grasshopper House, LLC v. Clean & Sober Media LLC, 394 F. Supp. 3d 1073 (C.D. Cal.

23

2019) (finding liability where adverse reviewer was allied with competitor). Facebook’s

24

intention to lessen the goodwill which CHD’s services enjoy is manifest from its false

25

“warning label” and “fact-checks” and its disabling of CHD’s fundraising function and

26

advertising. Plaintiff has suffered a competitive injury under the Lanham Act.

27
28

192.

The false representations need not be made in a “classic advertising campaign,”

but may consist instead of more informal types of “'promotion.” Coastal Abstract Serv., Inc. v.

74

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 95 of 115

1

First Am. Title Ins. Co., 173 F.3d at 735. Facebook’s “warning label” and “fact-checks” are

2

promotional in that these are all part of Facebook’s ongoing “vaccine misinformation” public

3

relations campaign. See, e.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 77 (1983)

4

(mailing of informational pamphlets by non-profit organization can be classified as

5

commercial speech). Facebook’s “community initiatives” are promotional by definition

6

because Facebook’s business model is, always and in all things, to manufacture users’ “trust”

7

in Facebook – so Facebook can collect, manipulate, and market more of those trusting users’

8

data. “Facebook’s business model [] rests on the need to keep consumers engaged in its

9

services on the one hand and the need to monetize the data it gathers by targeting those users

10

with new services and advertising on the other. [. . .] Over the long term, Facebook’s business

11

model must evolve to center around trust, which means making user privacy and data security

12

as important as monetization.” Adam Burt, Can Facebook Ever Be Fixed?, HARVARD

13

BUSINESS REVIEW (April 8, 2019), https://hbr.org/2019/04/can-facebook-ever-be-fixed.

14

193.

Statements on websites are generally available to the public at large, and satisfy

15

the commercial speech requirement. In addition, defendants published the “warning label” and

16

“fact-checks” as part of its own promotional campaign to lobby government officials to

17

preserve its immunity under the CDA, and to persuade consumers that its content-management

18

process warrants their continued trust and patronage.

19

194.

The “warning label” and “fact-check” deceptions are “material” in that these are

20

likely to lessen the goodwill that CHD’s services enjoy with the public and to influence

21

consumers’ vaccine purchasing decisions. Cook, Perkiss, and Liehe, Inc. v. N. Cal. Collection

22

Serv., 911 F.2d 242, 244 (9th Cir. 1990). By affixing the “warning label” and “fact-checks” to

23

CHD’s Facebook page where these have been viewed hundreds of thousands of times since

24

September 4, 2019 by members of Facebook’s global community, defendants effectively

25

disseminated their false statements widely within the relevant purchasing public.

26

195.

As alleged more specifically infra, on or about September 4, 2019 and

27

continuously since then, defendants Facebook and Zuckerberg have made, authored, and/or

28

published and circulated false and unprivileged statements about CHD in the form of

75

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 96 of 115

1

Facebook’s Warning Label on CHD’s Facebook page. A warning label is, by definition, the

2

disclosure of facts concerning dangers inherent in the use of a product or service. Black’s Law

3

Dictionary 1421 (5th ed. 1979) (“The purpose of a ‘warning’ is to apprise a party of the

4

existence of danger of which he is not aware to enable him to protect himself against it[.]”

5

Facebook has perverted the consumer-safety protection of a manufacturer’s “duty to warn” into

6

a license to denigrate true speech where the truth conflicts with Facebook’s economic interests,

7

business model, and/or relations with government, or Zuckerberg’s own perception of what is

8

true or scientific fact.

9

196.

Facebook’s warning label concerning CHD is false on its face and by clear

10

implication. Defendants knew that their warning label was untrue and perpetuated it to divert

11

users from CHD’s Facebook page to the CDC’s website. This was one of the tactics in

12

defendants’ RICO fraud enterprise to damage CHD financially and marginalize CHD’s health

13

advocacy work, and unjustly enrich themselves through their continued receipt of billions of

14

dollars in pharmaceutical advertising revenue, and billions more in future vaccine and 5G

15

network-related profits.

16

197.

Defendants’ false statements have already harmed Plaintiff and likely will harm

17

it in the future, especially within the large community of CHD followers, and among countless

18

others who wish to be informed of true facts about vaccine safety risks. Plaintiff has been

19

seriously damaged as a direct and proximate cause of the falsity of the defendants’ warning

20

label, in an amount to be determined at trial. The false statement attributes conduct,

21

characteristics, and conditions incompatible with the proper exercise of Plaintiff’s trade and

22

professional duties. The false statements were intended to hold Plaintiff up to hatred, distrust,

23

contempt, aversion, ridicule, and disgrace in the minds of a substantial number in that

24

community, and were calculated to harm, and have harmed their business relationships and

25

goodwill, and deterred others from associating or dealing with Plaintiff. Defendants’ warning

26

label constitutes egregious conduct constituting malice. Defendants’ acts were willful and

27

malicious. As such, in addition to compensatory damages and/or presumed damages, Plaintiff

28

76

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 97 of 115

1

demands punitive damages relating to defendants’ making of the above-referenced false

2

statements and other willful misconduct, in an amount to be determined at trial.

3

198.

California defamation law provides areference point for establishing defendants’

4

false promotion liability for willfully publishing its false “warning label” on Plaintiff’s page:

5

(1) defendants published the statements; (2) the statements were about Plaintiff; (3) they were

6

false; and (4) defendants failed to use reasonable care to determine the truth or falsity. Cal.

7

Civ. Code § 45 (defining the tort of libel as a “writing” or “fixed representation,” which

8

exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be

9

shunned or avoided, or which has a tendency to injure him in his occupation”) (emphasis

10

added); Hecimovich v. Encinal Sch. Parent Teacher Org., 203 Cal. App. 4th 450, 470 (2012).

11

Where Plaintiff is a public figure, the speech concerns a matter of public concern, and

12

defendants are media publishers, then Plaintiff must prove that defendants acted with “actual

13

malice.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 14 (1990). Milkovich left open the

14

question whether, in the case of a non-media publisher defendant, Plaintiff must show only that

15

defendants did not act with reasonable care “in checking on the truth or falsity of the

16

information before publishing it.” Carney v. Santa Cruz Women Against Rape, 221 Cal. App.

17

3d 1009, 1016 (1990). By contrast, a public figure Plaintiff suing a media publisher defendant

18

must prove that defendant acted with “actual malice,” which requires a showing that a

19

statement was made “with knowledge that it was false or with reckless disregard of whether it

20

was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (the “New York

21

Times” standard).

22

199.

Under California law, defamation is “the intentional publication of a statement of

23

fact which is false, unprivileged, and has a natural tendency to injure or which causes special

24

damages.” Gilbert v. Sykes, 147 Cal. App. 4th 13, 27 (2007). Facebook and Zuckerberg

25

“published” their Warning Label on CHD’s Facebook page by inserting that “writing . . . or

26

other fixed representation to the eye” in a place of prominence of the page where it appears

27

every time a user opens the page, except where that user has previously seen it and deleted it.

28

California recognizes two types of libel (Cal. Civ. Code § 45a): libel per se, which is

77

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 98 of 115

1

defamatory on its face, when read in context, and libel per quod, which a reasonable reader

2

would be able to recognize only by knowledge of specific facts and circumstances extrinsic to

3

the publication. Libel per se permits recovery of general damages, including reputational harm

4

and punitive damages, while libel per quod requires proof of “special damages” which are

5

defined narrowly to encompass only economic damages. Cal. Civ. Code § 48a; Gomes v.

6

Fried, 136 Cal. App. 3d 924, 939 (1982).

7

200.

The Second Restatement of Torts defines the “context” of a statement to “include

8

all parts of the communication that are ordinarily read with it.” RESTATEMENT (2D) OF TORTS

9

§ 563(d). For example, “the entire contents of a personal letter are considered as the context of

10

any part of it because a recipient of the letter ordinarily reads the entire communication at one

11

time.” Id.; Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (Ninth Circuit adopts the

12

Second Restatement of Torts’ distinction between “context” and “extrinsic circumstance.”).

13

Defendants’ defamatory statement must be read and considered in the context of the other

14

content of CHD’s Facebook page where it appears, and to which it refers expressly and by

15

necessary implication.

16

201.

Here, the context in which Facebook’s Warning Label on CHD’s page would

17

ordinarily be seen and read includes: CHD’s own mission statement on that same page that

18

vaccine safety should be taken away from the CDC; CHD’s message, “Read about CDC &

19

WHO corrupt financial entanglements with vaccine industry, childrenshealthdefense.org/cdc-

20

who”; and that context incorporates by reference numerous articles on CHD’s page which call

21

out and criticize the CDC’s continued adherence to its “all vaccines for all children” policy.

22

See, e.g., “CDC Corruption, Deceit, and Cover-Up”; “CDC’s Vaccine “Science”— A Decades

23

Long Trail of Trickery”; “Why You Can’t Trust the CDC on Vaccines”; “CDC and WHO

24

Corrupt Financial Entanglements with the Vaccine Industry”; “Dr. Brian Hooker’s Official

25

Statement Regarding Vaccine Whistleblower William Thompson”; “CDC & FDA Committee

26

Members Have Financial Conflict of Interest with Vaccine Pharmaceuticals”; “OSC Calls for

27

Further Review of Whistleblower Disclosures on Zika Testing”; CDC Spider Letter”; “CDC:

28

Off Center”; “Real-Life Data Show that the CDC Vaccine Schedule is Causing Harm”; “Don’t

78

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 99 of 115

1

Fall for the CDC’s Outlandish Lies About Thimerosal”; “CDC and WHO Corrupt Financial

2

Entanglements with the Vaccine Industry”; “CDC Lies About, and Media Repeats, Risk of

3

Dying from Measles”; “CDC’s ‘Universal’ Recommendations for Infant Hep B Vaccine Not

4

Based on Science, But Assumptions”; “CDC’s Infant Hep B Vaccine Recommendations—No

5

Proof of Safety?” See Children’s Health Defense page, FACEBOOK,

6

https://www.facebook.com/ChildrensHealthDefense (last accessed Aug. 15, 2020); Knievel v.

7

ESPN, 393 F.3d at 1076-77 (considering surrounding web pages under the incorporation by

8

reference doctrine). But, Plaintiff need not prove that the CDC is nefarious to make its point

9

that the views of CHD are being unfairly misrepresented and censored, to the detriment of the

10
11

public which deserves to be able to consider alternative views and make up its own mind.
202.

“This page posts about vaccines.” Under California law, Plaintiff must show

12

that the false statement was made “of and concerning” them, either by name or by “clear

13

implication.” Ferlauto v. Hamsher, 74 Cal. App. 4th 1294, 1404 (1999). The specific reference

14

requirement is clearly met here as to CHD as an organization -- by the text of the first sentence

15

(“This page”), by its large bolded font in the original, and, by its placement at the top of

16

CHD’s Facebook page. Libel exists where the words used can be shown to have referred to

17

Plaintiff, and to have been so understood. Vedovi v. Watson & Taylor, 104 Cal. App. 80, 83

18

(1930).

19

203.

“When it comes to health, everyone wants reliable, up-to-date information.”

20

This sentence, read alone, is undoubtedly true. But, it tees up the falsity of the next sentence

21

with which it should be read. “The publication in question […] must be read as a whole in

22

order to understand its import and the effect that it was calculated to have on the reader[.]”

23

Selleck v. Globe International, Inc., 166 Cal. App. 3d 1123, 1131 (1985). The court applies a

24

“totality of the circumstances test” and “puts itself in place of an average reader [to] determine

25

the natural and probable effect of the statement.” Bently Reserve LP v. Papaliolios, 218 Cal.

26

App. 4th 418, 427-28 (2013).

27
28

204.

Merriam-Webster’s Dictionary defines the adjective “reliable” as “suitable or fit

to be relied on; dependable.” Reliable, Merriam-Webster.com, https://www.merriam-

79

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 100 of 115

1

webster.com/dictionary/reliable (last accessed Aug. 15, 2020). Merriam-Webster’s Thesaurus

2

lists synonyms for “reliable” to include “true, trustable, trusty, trustworthy, tried-and-true,

3

good, responsible, safe, secure, sure.” Reliable, Merriam-Webster.com, Thesaurus,

4

https://www.merriam-webster.com/thesaurus/reliable (last accessed Aug. 15, 2020). Merriam-

5

Webster’s Dictionary defines the adjective “up-to-date” as “(1) extending up to the present

6

time; including the latest information. (2) abreast of the times; modern.” Up-to-date, Merriam-

7

Webster.com, https://www.merriam-webster.com/dictionary/up-to-date (last accessed Aug. 15,

8

2020). Merriam-Webster’s Thesaurus adds the definition “having information especially as a

9

result of study or experience,” and lists synonyms for “up-to-date” which include

10

“contemporary, current, modern, new, present-day, state-of-the-art, up-to-the-minute,

11

informed, knowledgeable, well-informed.” Up-to-date, Merriam-Webster.com, Thesaurus,

12

https://www.merriam-webster.com/thesaurus/up-to-date (last accessed Aug. 15, 2020).

13

205.

“The Centers for Disease Control (CDC) has information that can help

14

answer questions you may have about vaccines.” Read with the preceding “reliable, up-to-

15

date information” sentence to which it refers, and which together make its essential point, this

16

sentence is false, and provably so -- as CHD has devoted much of its organizational life to

17

showing. Read in context, the fair meaning of the sentence is to equate the word “information”

18

with “reliable and up-to-date information” in the preceding sentence. Any reasonable reader

19

would read the second “information” as shorthand for the first, and apply the “reliable, up-to-

20

date” modifiers to both. What else, if not the “reliable and up-to-date information,” which

21

Facebook says “everyone wants,” and which Facebook claims to be in a position to discern and

22

provide with respect to vaccines? By its terms of service and community standards

23

incorporated therewith, Facebook purports to be viewpoint-neutral except for limited instances

24

of speech, which poses an “imminent threat of harm or violence.” Facebook’s pretense of

25

neutrality only compounds the reputational harm of its libel to Plaintiff. See Masson v. New

26

Yorker Magazine, Inc., 501 U.S. 496, 513 (1991) (New Yorker article which purported to be

27

non-fiction was actionable because it gave the reader no clue that fabricated quotations were

28

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 101 of 115

1

being used other than to allow the subject to speak for himself, which made them all the more

2

damning).

3

206.

“Go to CDC.gov.” Once more, the bolded and larger font size underscore that

4

Facebook has singled out Plaintiff’s Facebook page for negative comment. The very existence

5

of Facebook’s Warning Label on CHD’s page, and its redirection link “Go to CDC.gov,” are

6

well understood as a “black mark” on that page among Facebook’s community of 2 billion

7

users worldwide. Facebook’s highly-sporadic and selective exercise of its content-regulation

8

authority as community moderator underscores its audience’s reasonable expectation that, in

9

this context, a Facebook warning label on a third party’s page conveys an objective fact, not an

10

expression of Facebook’s opinion, or an undisclosed commercial interest and ambition. See

11

Knievel v. ESPN, 393 F.3d at 1075 (analyzing the format, structure, the language used, and the

12

expectations that the target audience would have with regard to the type of information that

13

might be found in the context, and noting that such context might be “paramount,” if not

14

“dispositive”). For any reasonable reader, the “gist” or “sting” of Facebook’s “warning label”

15

misrepresentation is its unsubtle insinuation as fact that, in contrast with the CDC’s

16

information, “what you see below on CHD’s page is not reliable, up-to-date information.

17

Rely on the CDC instead.” That is the only reasonable interpretation of Facebook’s Warning

18

Label in light of its specific wording, prominent placement on CHD’s page, and the context of

19

the CHD-created content on that page which features CHD’s scathing factual exposé of the

20

CDC.

21

207.

Facebook’s warning label on CHD’s page states a classic imputation of CHD’s

22

dishonesty in dealing with its users, and a lack of integrity about its trade in the sphere in

23

which it operates. That is how third-party readers understand it and, as such, it is falsely

24

disparaging under the Lanham Act. Defendants are liable for what is insinuated, as well as for

25

what is stated explicitly. MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 547 (1959).

26

Further, the determinative question is whether the ‘gist or sting’ of the statement is true or

27

false, benign or defamatory, in substance. Ringler Associates, Inc. v. Maryland Casualty Co.,

28

80 Cal. App.4th 1165, 1182 (2000). A statement is deemed false if it “would have a different

81

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 102 of 115

1

effect on the mind of the reader (or viewer) from that which the pleaded truth would have

2

produced.” Metabolife Int’l Inc. v. Wornick, 264 F.3d 832, 849 (9th Cir. 2001) (quoting

3

Masson v. New Yorker Magazine, Inc., 501 U.S. at 517). Facebook’s warning label is

4

“reasonably susceptible of an interpretation which implies a provably false assertion of fact,”

5

Couch v. San Juan Unified Sch. Dist., 33 Cal. App. 4th 1491 (1995); Dodds v. Am. Broad. Co.,

6

145 F.3d 1053, 1063-64 (9th Cir. 1998). Here, the conclusion that CHD’s vaccine-related

7

information is “unreliable and out-of-date” is sufficiently factual to be verifiable as true or

8

false, Milkovich v. Lorain Journal Co., 497 U.S. at 19, and indeed, it is false. See also

9

Manufactured Home Communities, Inc. v. County of San Diego, 544 F.3d 959, 964 (9th Cir.

10

2008) (defendant's statements that accused Plaintiff of lying without expressly disclosing a

11

factual basis for the statements could be defamatory).

12

208.

An old, but instructive case is Rosenberg v. J.C. Penney Co., 30 Cal. App. 2d

13

609 (1939). There, in 1924, the Rosenberg retail store sold the Healdsburg high school’s gym

14

uniform, and a competitor across the street, the J.C. Penney Co. department store, wanted that

15

business. So, a J.C. Penney manager created a window display that purported to compare

16

samples of the respective stores’ gym shorts. The comparison included a placard with these

17

comments: “Decide for Yourself. This Garment is either a poorly-made second or prison-made

18

merchandise. Seams crooked. Slovenly made. Long Loose Stitches.” Id. at 613. On appeal, the

19

California court affirmed that the window display placard was libelous per se because it was an

20

imputation against the honesty and integrity of the merchant in the sale of its goods, and

21

essentially accused it of fraud and deception, and unfair dealing with its customers. “The

22

reputation of a tradesman in the sphere in which he earns his living is a valuable asset and is

23

entitled to the protection of the law.” Id. at 620.

24

209.

Now fast forward nearly a century, and recast that small town America window

25

display libel by a giant and overreaching department store against its small cross-street rival to

26

today’s world where the libel is propagated online by a comparable Goliath on a global scale.

27

That is, essentially, what Facebook has done. Like J.C. Penney’s window display, Facebook’s

28

warning label on CHD’s page draws an invidious comparison between the quality of the

82

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 103 of 115

1

health-related information offered by two rivals, the CDC and CHD, for the public’s trust and

2

attention. As alleged infra, Facebook has “skin in the game” because its controlling individual

3

and his related entities are in the vaccine development business, competing with CHD’s

4

educational materials, emphasizing informed consent and safety. Like the Rosenberg retail

5

store, the “business integrity of the company [CHD] is at stake.” Rosenberg v. J.C. Penney Co.,

6

30 Cal. App. 2d at 627.

7

210.

Facebook’s warning label implies a provably false assertion of fact, whether or

8

not the words used are termed “fact” or “opinion.” Milkovich, 497 U.S. at 18-19. The “gist” or

9

“sting” of the disparagement — that CHD’s page conveys “unreliable and out-of-date

10

information” — is objectively false in light of the totality of the circumstances: CHD’s page-

11

content and the fact-checking process by which it creates and curates such content,

12

distinguishes between known and unknown scientific facts, and labels expressions of opinion

13

on its page as such. See supra. Certainly the pleaded truth — that CHD’s page in fact contains

14

“reliable and up-to-date information” while CDC’s page does not — would produce an effect

15

on the mind of the reader 180-degrees different than the effect produced by Facebook’s

16

warning label. Masson, 501 U.S. at 516-17. Third-party readers understood Facebook’s

17

warning label as Facebook intended, namely as a statement of fact that the information on

18

CHD’s Facebook page is neither reliable nor up-to-date. See, e.g., Slaughter v. Friedman, 32

19

Cal. 3d 149, 154 (1982) (accusations of “excessive” fees or “unnecessary” work by

20

professional dental plan administrators carry a “ring of authenticity” and reasonably might be

21

understood as being based on fact). Facebook has sought after, and must answer for, its own

22

“ring of authenticity.”

23

211.

On March 4, 2019, in response to Representative Schiff’s letter to Facebook,

24

CHD sent Facebook a nine-page single-spaced letter providing CHD’s detailed summary of the

25

known and unknown scientific facts, and its most pressing concerns, with respect to vaccine

26

safety. See Exhibit A. Thus, Facebook was on notice that CHD was not promoting

27

“misinformation” of any sort.

28

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 104 of 115

1

212.

Yet, just three days later, on March 7, 2019, Facebook announced in its online

2

press release that it would take steps to eliminate “vaccine misinformation” on Facebook by

3

reducing its distribution and providing people with “authoritative information” on the topic,

4

and then Facebook proceeded to falsely disparage CHD. See, e.g., Masson, 501 U.S. at 521

5

(unlike “hot news” journalist, defendant author had both time and practical ability to fact-check

6

tapes in her possession). Here, with CHD’s detailed presentation in hand, Facebook had

7

“obvious reasons to doubt the veracity” of its warning label, but instead engaged in

8

“purposeful avoidance of the truth.” St. Amant v. Thompson, 390 U.S. 727, 732 (1968); Harte-

9

Hanks Communication, Inc. v. Connaughton, 491 U.S. 657 (1989). By reasonable inference,

10

Facebook conducted no investigation whatsoever to confirm or dispel the material facts in

11

CHD’s March 4, 2019 letter, and Facebook intended to convey or, at the very least, endorsed

12

the defamatory false innuendo. Newton v. National Broadcasting Co., Inc., 930 F.2d 662, 681

13

(9th Cir. 1990).

14

213.

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) left open the

15

question whether non-media publisher defendants such as Facebook and Zuckerberg are

16

entitled to the same level of protection that media publisher defendants receive under the New

17

York Times standard. Either way, these defendants acted with the requisite mental state to be

18

liable for defamation measured by the “actual malice” standard that they subjectively doubted

19

the veracity of the statement or purposely avoided the truth, or by the negligence standard

20

applicable to non-media defendants. Dodds, 145 F.3d at 1060; St. Amant v. Thompson, 390

21

U.S. at 731 (stating test as whether defendant “in fact entertained serious doubts as to the truth

22

of [his] publication”); Garrison, 379 U.S. at 74 (whether defendant published the material

23

while subjectively possessing a “high degree of awareness of the probable falsity of the

24

publication”).

25

214.

“Actual malice” can be shown by, inter alia, “subsequent defamations [and other]

26

statements of defendants, circumstances indicating the existence of rivalry, ill will, or hostility

27

between the parties, [and] facts tending to show a reckless disregard of the Plaintiffs' right[,]”

28

Herbert v. Lando, 441 U.S. 153, 164 n.12 (1979) (quoting 50 Am. Jur. 2d, § 455), all of which

84

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 105 of 115

1

are strongly present. In particular, defendants harbor an adverse motive to profit from their

2

unfettered development of vaccines and 5G networks, in furtherance of which they have

3

committed multiple other predicate acts of misrepresentation amounting to wire-fraud for

4

purposes of RICO enterprise liability. And, crucially, they knew their published warning label

5

was false or acted with reckless disregard to its falsity.

6

215.

Zuckerberg’s public statements to the CNN audience, to Congress, and to his

7

investors are replete with boasts that he works with government officials to identify and

8

suppress “vaccine misinformation,” and redirect users to the government’s authoritative

9

“information,” and that his “understanding of the scientific consensus is that it’s important that

10

people get their vaccines.” He has also publicly boasted of his “outside interests in health.” The

11

three-day interval (March 4 to 7, 2019) from CHD’s nine-page letter to Facebook’s press

12

release suggests that Zuckerberg willfully chose not to test his “understanding” against actual

13

facts.

14

216.

Defendants have exclusive possession, custody and control of other evidence of

15

falsity and/or Zuckerberg’s actual malice, e.g., private records and testimony concerning when,

16

with whom, how, and why Zuckerberg came to his “understanding” concerning “vaccine

17

misinformation,” which he confidently holds at “near 100%” certainty; his actual knowledge or

18

serious doubt of the “warning label’s” falsity; and what “deliberative process,” if any,

19

occurred. See, e.g., Metabolife, 264 F.3d at 846 (ordering discovery of information within

20

defendants’ exclusive control which may be highly probative of falsity).

21

217.

Plaintiff has suffered general and special damages as enumerated below. It is

22

hornbook law that in measuring damages, the Court may consider Facebook’s influence and

23

that of Plaintiff, and Facebook’s global footprint, “for the greater the circulation, the greater

24

the wrong, and the more reason why greater care should be exercised in the publication[.]”

25

Graybill v. De Young, 140 Cal. 323, 330 (1902).

26

218.

No retraction demand was made nor required prior to filing this action under

27

California Civil Code section 48a, subdivision (a), because Facebook is not a “daily or weekly

28

news publication” as that term is defined in subsection (d)(5) of that statute.

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 106 of 115

1

A.

No Affirmative Defense of CDA “Immunity.”

2

219.

The Communications Decency Act (CDA) states: “No provider or user of an

3

interactive computer shall be treated as the publisher or speaker of any information provided

4

by another information content provider.” 47 U.S.C. § 230(c)(1). The affirmative defense of

5

Section 230 immunity has been broadly construed as to information provided by third parties

6

and hosted on Facebook. However, if an entity is “responsible, in whole or in part, for the

7

creation or development of information” that forms the subject matter of the lawsuit, it is itself

8

a content provider and is not protected. 47 U.S.C. § 230(f)(3).

9

220.

In publishing its false “warning label” and “fact-checks,” Facebook has acted,

10

and continues to act, both as an interactive computer service provider and as “content

11

provider.” Section 230(f)(3) defines an information content provider as “any person or entity

12

that is responsible, in whole or in part, for the creation or development of information provided

13

through the Internet or any other interactive computer service.” Under Ninth Circuit law, as to

14

content that a website service provider creates itself, or is responsible in whole or in part for

15

creating or developing, the website is also a content provider. Fair Housing Council v.

16

Roommates.com, LLC, 521 F.3d 1157, 1162-63 (9th Cir. 2008) (en banc); Fraley v. Facebook,

17

830 F. Supp. 2d at 801-02. Under the CDA, 47 U.S.C. § 230(f)(3), Facebook’s warning label

18

and its other affirmative content-creation far exceed “a publisher’s traditional editorial

19

functions,” Batzel v. Smith, 333 F.3d 1018, 1031 n.18 (9th Cir. 2003), and far exceed that

20

content-creation of question-and-answer-sets which the Ninth Circuit found sufficient in the

21

Roommates.com case. See, e.g., Roommates.com, 521 F.3d at 1163 (Congress did not seek to

22

immunize “the creation of content.”) (emphasis added). Facebook has no immunity from

23

liability for actionable harms arising from its fraudulent course of conduct.

24

B.

The May 28, 2020 Executive Order.

25

221.

On May 28, 2020, President Donald J. Trump issued an Executive Order on

26

Preventing Online Censorship. The Executive Order provides, in pertinent part:

27

Sec. 2. Protections Against Online Censorship. (a) [. . .] It is the
policy of the United States to ensure that, to the maximum extent

28

86

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 107 of 115

1

permissible under the law, this provision [47 U.S.C. § 230] is not
distorted to provide liability protection for online platforms that —
far from acting in “good faith” to remove objectionable content —
instead engage in deceptive or pretextual actions (often contrary to
their stated terms of service) to stifle viewpoints with which they
disagree. [. . .] When an interactive computer service provider
removes or restricts access to content and its actions do not meet
the criteria of [47 U.S.C. § 230] subparagraph (c)(2)(A), it is
engaged in editorial conduct. It is the policy of the United States
that such a provider should properly lose the limited liability shield
of subparagraph (c)(2)(A) and be exposed to liability like any
traditional editor and publisher that is not an online provider.

2
3
4
5
6
7
8
9
10

Executive Order on Preventing Online Censorship, Executive Orders, THE WHITE HOUSE

11

(May 28, 2020), https://www.whitehouse.gov/presidential-actions/executive-order-preventing-

12

online-censorship/.

13

222.

The Executive Order’s free expression principles are consistent with this lawsuit,

14

and its statement of the policy of the United States may be informative for the Court. But, as

15

set forth supra, the Court need not rely upon the Executive Order to adjudicate this controversy

16

because CHD’s claims for relief are fully viable and warrant extraordinary relief under existing

17

authorities.

18

223.

Plaintiff is entitled to injunctive relief and to recover their damages, including for

19

reputational harm and loss of business goodwill and revenue, and punitive damages resulting

20

from defendants’intentionalacts of false designation and false promotion under the Lanham

21

Act.

22

THIRD CAUSE OF ACTION

23

(RICO — WIRE FRAUD VIOLATIONS)

24

Defendants Facebook, Zuckerberg, Science Feedback, Poynter, Politifact, and Does 1-20

25
26
27
28

224.

Paragraphs 1 through 223 are realleged and incorporated as if fully set forth

225.

18 U.S.C. § 1962(c) of the Racketeer Influenced and Corrupt Organizations Act

herein.
(“RICO”) makes it illegal for any person associated with an alleged racketeering enterprise “to

87

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 108 of 115

1

conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through

2

a pattern of racketeering activity.” To state a civil claim for violations of 18 U.S.C. § 1962(c),

3

as authorized by 18 U.S.C. § 1964(c), Plaintiff must allege: (1) conduct (2) of an enterprise

4

(3) through a pattern (4) of racketeering activity (known as ‘predicate acts’) (5) that

5

proximately causes (6) damages to the Plaintiff. Under 18 U.S.C. § 1961(1)(B), an act which is

6

indictable under 18 U.S.C. § 1343 (relating to wire fraud) constitutes a predicate act. A

7

“pattern” requires at least two related predicate acts that amount to or pose a threat of

8

continued criminal activity. A pattern does not require multiple schemes or multiple victims.

9

“Enterprise,” as defined in 18 U.S.C. § 1961(4), broadly includes “any individual, partnership,

10

corporation, association, or other legal entity, or any union or group of individuals associated

11

in fact although not a legal entity.” The definition of a RICO enterprise has wide reach and is

12

liberally construed to effectuate its remedial purpose. Here, the “persons” were Facebook,

13

Zuckerberg, Science Feedback, Poynter, Politifact, and Does 1 to 20, and the “enterprise” was

14

that distinct group of persons who associated in fact (the Facebook “content management”

15

team) as a coordinated group to effectuate their fraudulent scheme. River City Mkts., Inc. v.

16

Fleming Foods W., Inc., 960 F.2d 1458, 1461 (9th Cir. 1992) (concluding that “business

17

relationship akin to a joint venture” was sufficient to establish an associated-in-fact RICO

18

enterprise). As alleged supra, the Facebook content management team is an associated-in-fact

19

enterprise in that it is an ongoing organization, formal or informal, and its various associates

20

function as a continuing unit for a common purpose — to damage Plaintiff’s trade and property

21

interests, to divert users of their page to the CDC, and to unjustly enrich themselves – by

22

fraudulent means.

23

226.

Defendants’ motive to profit from vaccine ads and product development and 5G

24

networks unconstrained by negative publicity on their platform is highly probative of their

25

intent to commit RICO wire-fraud, even though economic motive itself is not an element of the

26

claim. See, e.g., National Organization for Women, Inc. v. Schiedler, 510 U.S. 249, 252 (1994)

27

(rejecting the argument that “RICO requires proof either the racketeering enterprise or the

28

predicate acts of racketeering were motivated by an economic purpose”). Essentially, the task

88

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Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 109 of 115

1

of the Facebook fraud enterprise was to “clear the field” of CHD’s viewpoint for at least two

2

market purposes that involve property or money, and lots of it: (1) brand protection for its

3

vaccine maker ad buyers; and (2) its own future secured interest in vaccine patents and

4

technical products and processes that depend on 5G-networks for their commercial viability.

5

See, e.g., United States v. Reyes, 660 F.3d 454, 463 (9th Cir. 2011) (admitting evidence that

6

defendant made money on a fraudulent scheme). In addition, as alleged infra, CHD’s followers

7

and others relied upon defendant’s misrepresentation in ways that caused CHD to lose

8

donations and membership fees, and injured CHD in its organizational trade.

9

227.

For his part, in addition to all else, Zuckerberg was active in managing with his

10

wife the day-to-day affairs of CZI and CZ-Biohub, and he exercised specific control over their

11

vaccine development efforts. By his public statements, Zuckerberg was directly responsible for

12

Facebook’s false and misleading statements about Plaintiff’s posted content. He participated in

13

the ongoing associated-in-fact enterprise to develop his for-profit vaccine and 5G products

14

unconstrained by any public scrutiny of that effort by Plaintiff.

15

228.

Thus, all named defendants both inside Facebook’s formal structure (Zuckerberg,

16

Does 1-10) and out (Science Feedback, Poynter, Politifact, Does 1-20) aided in one or another

17

aspect of their common fraud scheme: to label Plaintiff’s page “unreliable” and “out-of-date”

18

and redirect users to the CDC; to label Plaintiff’s speech-content “False” when it is critical of

19

vaccine or 5G network safety, accomplishing this censorship through the sham machinations of

20

“content moderators” and “independent fact-checkers”; and to conceal their true purposes of

21

profiting from vaccine manufacturer advertising and from their own vaccine and 5G network

22

development, all of which would be adversely affected by Plaintiff’s ongoing public health-

23

related speech.

24

229.

The wire fraud statute, 18 U.S.C. § 1343, prohibits schemes to defraud or to

25

obtain money or property, or cause financial loss to another, by means of “false or fraudulent

26

pretenses, representations, or promises” if interstate wire or electronic communications are

27

used to execute the scheme. The concept of a misrepresentation is broad, reaching not only

28

false statements of fact, but also all of Facebook’s misleading half-truths, deceptive omissions,

89

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 110 of 115

1

and knowingly false suggestions and promises as to the future. It is no defense that the

2

intended victim was too gullible or, on the other hand, was too sophisticated to be taken in by

3

the deception.

4

230.

Defendants also committed wire-fraud acts constituting “interference with

5

interstate commerce by threat” under 18 U.S.C. § 1951 in that the residual 0.05% of users who

6

— notwithstanding Facebook’s false “warning label” and “fact-checks” — actually click-

7

through to view Plaintiff’s actual content, suffer particular adverse consequences in terms of

8

“sandboxing,” and other detriments to their accessible tools and information on Facebook. As

9

alleged supra, with respect to its active collaboration with government officers and agencies,

10

Facebook took such actions under “color of official right.” 18 U.S.C. § 1951(2).

11

231.

Plaintiff further alleges that defendants caused a domestic injury to their business

12

or property. Where, as here, defendants specifically targeted their conduct at Plaintiff with the

13

aim of thwarting Plaintiff’s rights in the United States, their activity results in a domestic

14

injury.

15

232.

Under Fed. R. Civ. P. 9(b), predicate acts of wire fraud must be alleged with

16

specificity as to the contents of the communications, who was involved, where and when they

17

took place, and why they were fraudulent. As alleged supra, defendants engaged in a scheme

18

to defraud and made use of electronic and internet transmissions, and/or telephone calls, emails

19

and texts in furtherance of the scheme, with the specific intent to deceive or defraud.

20

233.

Plaintiff reasonably relied on defendant Facebook to adhere to its terms of

21

service and community standards; not to engage in content creation on their Facebook pages;

22

and not to mislead them, their advertising agency, or the world of third-party users as to the

23

truth or falsity of content on their pages, or the visibility or reach of those pages. Plaintiff was

24

misled by defendants, and was derivatively injured by many third-party users’ reliance on

25

defendants. See Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 658 (2008) (Plaintiff

26

alleging a RICO violation may establish causation through first person or third-party reliance).

27
28

234.

As a direct and proximate result of defendants’ predicate acts in violation of 18

U.S.C. §§ 1961(1)(B), 1962(c), Plaintiff has been and is continuing to be injured by harm to its

90

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Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 111 of 115

1

specific property interests and financial losses, including by defendants’ denial of any third-

2

party donations to Plaintiff’s organization; their refusal to accept Plaintiff’s advertising

3

purchases aimed at promoting such third-party donations; and their concerted efforts to reduce

4

the visibility and reach of Plaintiff’s page, to reduce traffic to that page, and to reduce

5

membership and speaker fees, and book and other sales that accrue to Plaintiff from such

6

traffic. See Xcentric Ventures, LLC v. Borodkin, 798 F.3d 1201, 1203 (9th Cir. 2015) (loss of

7

specific business opportunities are recoverable under RICO); and, finally, by publishing false

8

and disparaging warning labels, and censoring of content, which have caused damage to

9

Plaintiff’s professional reputation and other valuable tangible and intangible property rights

10
11

resulting in financial loss.
235.

Defendants’ actions have already injured Plaintiff, and will have the effect of

12

further injuring them by damaging its trade reputation and goodwill, and those of their authors,

13

diverting traffic from its site, and further curtailing its revenue and donations. See, e.g.,

14

Harmoni Int'l Spice, Inc. v. Hume, 914 F.3d 648, 653 (9th Cir. 2019) (Plaintiff’s lost sales as a

15

direct result of the defendants’ predicate acts cognizable under RICO); Kaiser Foundation

16

Health Plan, Inc. v. Pfizer, Inc. (In re Neurontin Mktg. & Sales Practices Litig.), 712 F.3d 21,

17

29-30 (1st Cir. 2013) (statistical link between fraudulent marketing and off-label prescribing,

18

without proof of any particular doctor-patient prescription, cognizable under RICO); Mendoza

19

v. Zirkle Fruit Co., 301 F.3d 1163, 1166 (9th Cir. 2002) (fraud on the market for labor, in that

20

wages were depressed when defendants hired undocumented workers, cognizable under

21

RICO); Resolute Forest Prods. v. Greenpeace Int’l., 2019 U.S. Dist. LEXIS 10263, *48 (N.D.

22

Cal. 2019) (Plaintiffs lost customer revenue due to their reliance upon defendants’ statements

23

cognizable under RICO); In re Chrysler-Dodge-Jeep EcoDiesel Mktg., Sales Practices &

24

Prods. Liab. Litig. 295 F. Supp. 3d 927, 961 (N.D. Cal. 2018) (statistical link between

25

fraudulent marketing and Plaintiffs’ overpayment may establish causation and injury to

26

property).

27
28

236.

Under 18 U.S.C. § 1964(c), Plaintiff seeks to recover threefold the damages they

have sustained, and the cost of this suit, including an award of their reasonable attorneys’ fees.

91

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 112 of 115

1

FOURTH CAUSE OF ACTION

2

(DECLARATORY RELIEF)

3

Defendants Facebook, Zuckerberg, Science Feedback, Poynter, Politifact, and Does 1-20

4
5
6

237.

Paragraphs 1 through 236 are realleged and incorporated as if fully set forth

238.

The Declaratory Judgment Act, codified in 28 U.S.C. § 2201(a), provides in

herein.

7

pertinent part that, “[i]n a case of actual controversy within its jurisdiction [] any court of the

8

United States, upon the filing of an appropriate pleading, may declare the rights and other legal

9

relations of any interested party seeking such declaration, whether or not further relief is or

10

could be sought. Any such declaration shall have the force and effect of a final judgment or

11

decree and shall be reviewable as such.”

12

239.

An actual controversy has arisen and now exists between Plaintiff and

13

defendants, concerning their respective rights and duties in that these defendants have

14

published a false and misleading warning label on Plaintiff’s Facebook page; have fraudulently

15

misrepresented to third-party users of the page that Plaintiff has posted and is posting “false

16

[factual] information” in violation of their terms of service; and refuse to permit Plaintiff to

17

solicit donations or purchase advertisements on the social media platform. Defendants have

18

used deceptive means to limit the reach and visibility of CHD’s page. Finally, and within the

19

past two months, Zuckerberg has threatened to ban, limit, warn, deboost, block or censor

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content regarding 5G network safety.

21

240.

Under Ninth Circuit law, “intangible injuries, such as damage to ongoing

22

recruitment efforts and goodwill, qualify as irreparable harm,” and weigh in favor of injunctive

23

relief. Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1105 (9th Cir. 1994);

24

Rent-A-Ctr., Inc. v. Canyon TV and Appliance Rental, Inc., 944 F.2d 597, 603 (9th Cir. 1991).

25

Moreover, the “loss of First Amendment freedoms, for even minimal periods of time,

26

unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

27

Accordingly, Plaintiff has suffered – and continues to suffer – irreparable harm.

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92

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 113 of 115

1

241.

Plaintiff seeks a judicial determination of its rights and remedies and a

2

declaration as to the parties’ respective rights and obligations with respect to CHD’s Facebook

3

page. A judicial declaration is necessary and appropriate at this time so that Plaintiff may

4

ascertain its rights to publish content on those pages without any interference, censorship,

5

warning labels, “shadowbanning,” “deboosting,” “sandboxing,” or other deceptive means and

6

methods employed by defendants, and with respect to other affirmative relief such as a public

7

apology and entry on a First Amendment “shield list” by defendants.

8
9

242.

As a result of Facebook’s unlawful conduct, Plaintiff has suffered substantial

damages, including, but not limited to:

10

a.

Plaintiff was deprived of freedom of speech;

11

b.

Plaintiff was foreclosed from future opportunities to reach subscribers on

12

Facebook;

13

c.

14

Plaintiff lost status and prestige amongst Facebook followers, the general
public and the journalistic community;

15

d.

Plaintiff suffered reputational harm;

16

e.

Plaintiff lost third-party donations to Plaintiff’s organization, speaker fees,

17

and book and other sales that would have accrued to Plaintiff but for

18

defendants’ misconduct; and,

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20
21

e.

These injuries are continuing in nature requiring injunctive relief.

WHEREFORE, Plaintiff CHD demands judgment against Facebook Inc. for damages
and injunctive relief as set forth below.

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23

DEMAND FOR JURY TRIAL

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Plaintiff demands a trial by jury on all issues so triable.

25

///

26

///

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///

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///

93

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 114 of 115

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiff Children’s Health Defense respectfully requests:

3

A.

4

Compensatory damages in an amount to be determined by the Jury, but not less
than $5,000,000.

5

B.

An award of treble damages to Plaintiff in an amount to be determined at trial.

6

C.

An injunction and declaratory judgment ordering Facebook to remove its

7

warning labels and misclassification of all content on Plaintiff’s Facebook page,

8

and to desist from any further warnings or classifications.

9

D.

10

An award of attorneys’ fees and costs to Plaintiff in an amount to be determined
at trial.

11

E.

An award of punitive damages to Plaintiff in an amount to be determined at trial.

12

F.

An order requiring defendants to make a public retraction of their false

13

statements.

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G.

15

Date: August 17, 2020

16

An award of such other and further relief as the Court may deem just and proper.

Respectfully submitted,

17
18
19

ROBERT F. KENNEDY, JR.
Founder and Chairman, Children’s Health Defense

20
21
22
23

MARY S. HOLLAND
General Counsel, Children’s Health Defense

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25
26
27
28

ROGER I. TEICH
Counsel for Plaintiff
Children’s Health Defense

94

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.

Case 3:20-cv-05787-SK Document 1 Filed 08/17/20 Page 115 of 115

1

VERIFICATION

2

I, MARY HOLLAND, declare under penalty of perjury as follows:

3

1.

4
5

I am the general counsel for Children’s Health Defense, a non-profit organization

and Plaintiff in this action.
2.

I have reviewed the foregoing Complaint and declare that the facts set out therein

6

are true to the best of my knowledge and belief, except those matters stated as upon

7

information and belief, which are true to the best of my belief.

8
9
10

I declare under penalty of perjury of the laws of the United States that the foregoing is
true and correct.
Executed this 17th day of August, 2020, in Rockland County, New York.

11
12
13

MARY HOLLAND
General Counsel, Children’s Health Defense

14
15

Attorney for Plaintiff
Children’s Health Defense

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25
26
27
28

95

VERIFIED COMPLAINT
Children’s Health Defense v. Facebook et al.