TLo Prevails in 9th Circuit in Win for Fact-Checking Journalism
On August 9, 2024, the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of a case that sought to muzzle fact-checking of online speech. The Court held the lower court properly dismissed a case filed by Children’s Health Defense (“CHD”), a nonprofit organization founded by Robert F. Kennedy, Jr., that advocates against vaccines, finding that it failed to a state a claim that fact-checks, and other restrictions, regarding its ability to post on Facebook violated the First Amendment and other federal laws.
Specifically, in August 2020, CHD sued Facebook and two fact-checking organizations, including the Poynter Institute for Media Studies (which operates the fact-checking journalism outlet PolitiFact, “Poynter”), under the First and Fifth Amendments, the Lanham Act, and the civil RICO statute. In broad terms, CHD claimed that Facebook engaged in a coordinated effort with the federal government to censor and minimize its messaging on the platform and to hamper its ability to fundraise through the platform. It alleged such violations occurred by, among other things, appending fact-checks on certain posts and disabling the donation button on its Facebook page. TLo represented Poynter in the matter.
With respect to Poynter, CHD challenged a fact-check by PolitiFact placed on a third-party article about flu vaccines, claiming that doing so caused harm to CHD and that Poynter’s relationships with Facebook and others evidenced its role in a coordinated effort to promote pro-vaccine messaging and diminish CHD’s social media reach.
The Ninth Circuit disagreed on all counts. With respect to Poynter, the Court agreed with TLo attorneys that fact-checking journalism is not commercial speech that advertised or promoted a product or service. Rather, as TLo argued, Poynter’s fact-checks were news reporting protected by the First Amendment, and any economic benefit was merely incidental. Similarly, in rejecting the civil RICO conspiracy claim, the Court rebuffed CHD’s contention that a visitor contemplating donating to CHD would see a fact-check warning label on a post and decide instead to donate funds to the fact-checking organization.
The Court also upheld the dismissal of all claims against Facebook owner Meta and Mark Zuckerburg.
TLo lawyer Mark Caramanica argued the case at the Ninth Circuit on behalf of Poynter and was joined on the briefing by Carol LoCicero and Daniela Abratt-Cohen. Additional counsel for Poynter included the Jassy Vick firm. The case is styled Children’s Health Defense v. Meta Platforms, et. al, No. 21-16210, 2024 WL 3734422 (9th Cir. Aug. 9, 2024).
With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida-based law firm that is widely known, respected and committed to free speech and a free press. The firm represents leading electronic and traditional publishers. Thomas & LoCicero also counsels clients in a variety of industries in intellectual property, marketing and advertising matters and litigates business, defamation, trademark, copyright and privacy cases.
