Today’s Judge Judith Rogers’ opinion. Ass’n of American Physicians & Surgeons, Inc. v. SchiffLaurence Silberman and Judge Neomi Rao joined the group:
Association of American Physicians and Surgeons publishes the Journal of American Physicians and Surgeons. Both of these publications contain important information regarding “important legal, financial, and medical issues concerning vaccines.” The Association says that its view on these matters should not necessarily be considered “antivaccine” but instead favors informed consent, which is the disclosure of all legal, medical and economical information. Representative Adam B. Schiff, a member of the House of Representatives representing California’s 28th Congressional District is the Chairman of the House Intelligence Committee.
Katarina Verrelli joined the Association as an individual and sought damages. Verrelli and the Association claimed that Representative Schiff sent letters to Google and Facebook on February 14, 2019.[ing]They can use their platforms for what? [Representative]Schiff stated that there was incorrect information about vaccines. Representative Schiff then sent the exact same message to Amazon and posted it on House.gov as a press release, as well on Twitter.
The press release reproduces Representative Schiff’s concerns about vaccine hesitancy, the spread of misinformation regarding vaccines on the internet, such as YouTube and Facebook. Representative Schiff stated that he was deeply concerned by declining vaccination rates in the United States and requested additional information about the current steps taken to give medically correct information to users. He also encouraged you to think of additional ways to tackle this problem. He asked for information on the policies of the companies and their approaches to misinformation regarding vaccines. [More factual details omitted here, because they are repeated below. -EV] …
Because plaintiffs didn’t provide enough evidence to show that Rep. Schiff caused their injury, the court ruled that they had no standing to sue him. Here is part of that reasoning.
Association laments being “de-platform”[ed]”, “disfavor[ed]”by the search engines and social media platforms through which it promotes vaccine-related information. However, Representative Schiff was not able to take actions that would have made the Association’s content less accessible. The amended complaint acknowledges that these were done by an independent third party, such as Facebook, Google Amazon, Twitter, YouTube, Amazon and Amazon.
The appellants claim that companies took adverse actions against the content of the Association because Representative Schiff’s statements were implicitly threats and coerced them. A primary theory of causation appears to be alleged in the amended complaint, which is based on two sets statements from Representative Schiff.
First, Representative Schiff sent the information-gathering letters to several major technology companies, including Google, Facebook, and Amazon, and shared copies of those letters as well as the responses in press releases posted on the House.gov website and in social media posts.
The second, several months later was when Representative Schiff addressed a House Intelligence Committee hearing, where he was the chair.[ing]The immunity certain tech companies have under the Communications Decency Act. Appellants claim that the companies knew that Representative Schiff threatened to support Section 230 changes if they refused to conform to his demands on “other fronts,” such as his concern about the “disfavored material” on vaccines being used on their platforms. His statements intimidated, coerced and forced them to do so.[d]”The companies” to censor any content which he does not like.
But appellants haven’t presented any plausible explanation of causality. Even if it is true that the Association’s content has been removed from search results and social media platforms, technology companies might have undertaken these actions for reasons not related to Representative Schiff. It is not clear that the appellants can establish a causal link to show that this was an isolated inquiry from a Member of Congress, which led to policy changes across multiple different social media platforms.
Any possibility that Representative Schiff was directing the actions of the companies is also undercut by the timeline in the amended lawsuit. Google’s Response to Rep. Schiff’s Letter is cited in the amended complaint. It states:[W]E are .“Demonetize anti-vaccination content in our harmful or hazardous advertising policy.”
The amended complaint also acknowledges that many of the adverse actions taken by technology companies were prior to the hearing at the Intelligence Committee in June 2019. Facebook had announced its policy to prioritize information from the government on vaccines in search results starting March 2019. Twitter added its disclaimer regarding search results that directs users directly to vaccine-related information beginning May 2019. Even though appellants may have objected to some policy changes, it seems that the decision by the companies occurred prior to Representative Schiff sending the letters. In fact, many of them were made in advance of the hearing, which purportedly forced the companies into following Representative Schiff’s preference.
Interpreting the allegations in the amended complaint clearly, the Association suggests causation because Representative Schiff coordinated “the timing and writing” of the letters before they were released to tech companies. The letters also appear to be a “substantial factor” driving the companies “actions to suppress information vaccine-related to them.”
This is precisely the type of allegation that the Supreme Court has rejected. Bell Atlantic Corp. (2007). “A conclusory allegation at an unidentified point of agreement does not provide sufficient facts to demonstrate illegality,” (2007). This is what you see. TwomblyThese allegations “merely coincide with”, but are not “plausibly suggestive.””The kind of coordinated action which would provide a link between Rep. Schiff’s statements, and technology company’s actions. Indeed, it is far less plausible that the companies’ actions were a response to one legislator’s inquiry than that they were a response to widespread societal concerns about online misinformation….