FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHILDREN’S HEALTH DEFENSE, 

a Georgia non-profit organization, 

Plaintiff-Appellant, 

 v. 

META PLATFORMS, INC., a 

Delaware corporation; MARK 

ZUCKERBERG, a California resident; 

THE POYNTER INSTITUTE FOR 

MEDIA STUDIES, INC., a Florida 

corporation; SCIENCE FEEDBACK, 

a French corporation, 

Defendants-Appellees.

No. 21-16210 

D.C. No.

3:20-cv-05787-SI 

OPINION

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted May 17, 2022

Pasadena, California

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

Before: Eric D. Miller and Daniel P. Collins, Circuit 

Judges, and Edward R. Korman,* District Judge.

Opinion by Judge Miller; 

Partial Concurrence and Partial Dissent by Judge Collins 

SUMMARY**

First Amendment/Social Media

The panel affirmed the district court’s dismissal of a 

complaint brought by the nonprofit advocacy organization 

Children’s Health Defense (CHD) against Meta Platforms, 

Mark Zuckerberg, and others challenging Meta’s policy of 

censoring Facebook posts conveying what CHD describes as 

accurate information challenging current government 

orthodoxy on vaccine safety and efficacy. 

The panel noted that although Meta is a private 

corporation, in certain exceptional circumstances, a private 

party will be treated as a state actor for constitutional 

purposes. To do so, the private party must meet two distinct 

requirements: (1) the “state policy” requirement, which is 

satisfied when a private institution enforces a state-imposed 

rule instead of the terms of its own rules; and (2) the “state 

actor” requirement, which can be met by showing, among 

* The Honorable Edward R. Korman, United States District Judge for the 

Eastern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 3

other things, willful participation in joint activity with the 

government or government coercion. 

The panel held that CHD failed to meet the first 

requirement for state action because the source of CHD’s 

alleged harm was Meta’s own policy of censoring, not any 

provision of federal law. The evidence suggested that Meta 

had independent incentives to moderate content and 

exercised its own judgment in so doing. Moreover, CHD 

failed to allege any facts that would suggest an agreement 

between the government and Meta that required Meta to take 

a particular action in response to misinformation about 

vaccines or that the government coerced Meta into 

implementing a specific policy. 

The panel held that CHD’s inability to establish state 

action was fatal to all of its First Amendment claims—for 

damages under Bivens, for declaratory relief, and for an 

injunction. To the extent that CHD argued on appeal that 

Meta’s disabling of its donation button was a “taking” under 

the Fifth Amendment, that claim failed for the same reason. 

The panel further rejected CHD’s claim that the warning 

label and fact-checks Meta placed on its posts violated the 

Lanham Act, as well as CHD’s civil RICO claim. 

Concurring in part, concurring in the judgment in part, 

and dissenting in part, Judge Collins stated that CHD could 

plausibly allege a First Amendment claim for injunctive 

relief against Meta and he therefore dissented from the 

majority’s contrary conclusion. However, he agreed that all 

of CHD’s other claims were properly dismissed, and he 

therefore concurred in the judgment as to those remaining 

claims and in Parts III, IV, and V of the majority opinion. In 

Judge Collins’s view, CHD can adequately plead state action 

under the test articulated in Skinner v. Railway Labor 
4 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 

Executives Ass’n, 489 U.S. 602 (1989). Judge Collins would 

hold that given all the circumstances, Meta’s interactions 

with the Government with respect to the suppression of 

specific categories of vaccine-related speech, and in 

particular the speech of CHD and its founder and chairman, 

Robert F. Kennedy, Jr., sufficed to implicate the First 

Amendment. Because CHD could amend its complaint in a 

manner that states a cause of action for injunctive and 

declaratory relief, he would reverse the district court’s 

judgment in favor of Meta to the extent it held to the

contrary. 

COUNSEL

Jed Rubenfeld (argued), Yale Law School, New Haven, 

Connecticut; Robert F. Kennedy Jr. (argued) and Mary S. 

Holland, Children’s Health Defense, Peachtree City, 

Georgia; Roger I. Teich, Roger Teich, San Francisco, 

California; for Plaintiff-Appellant. 

Sonal N. Mehta (argued), Wilmer Cutler Pickering Hale and 

Dorr LLP, Palo Alto, California; Ari Holtzblatt, Molly M. 

Jennings, Allison Schultz, and Spencer Todd, Wilmer Cutler 

Pickering Hale and Dorr LLP, Washington, D.C.; Mark R. 

Caramanica (argued), Daniela Abratt-Cohen, and Carol J. 

LoCicero, Thomas & LoCicero PL, Tampa, Florida; 

Elizabeth H. Baldridge, Jenner & Block LLP, Los Angeles, 

California; Kevin L. Vick, Jassy Vick Carolan LLP, Los 

Angeles, California; for Defendants-Appellees.

John W. Whitehead, The Rutherford Institute, 

Charlottesville, Virginia; for Amicus Curiae Rutherford 

Institute.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 5

OPINION

MILLER, Circuit Judge:

Children’s Health Defense (CHD) is a nonprofit 

advocacy organization dedicated to educating the public 

about what it sees as the dangers of vaccines. The 

organization regularly shares articles and videos on its 

Facebook page, but since 2019, Meta Platforms, Inc., the 

operator of Facebook, has restricted CHD’s ability to do so, 

including by adding warning labels to alert users that, in 

Meta’s view, the information that CHD shares is not 

accurate.

Believing that Meta was censoring its speech at the 

direction of the federal government, CHD brought this 

action against Meta; Mark Zuckerberg, Meta’s CEO; and the 

Poynter Institute and Science Feedback, both of which

contract with Meta to evaluate the accuracy of some 

Facebook content. It asserted claims under the First and Fifth 

Amendments as well as the Lanham Act, 15 U.S.C. 

§ 1125(a), and the Racketeer Influenced and Corrupt 

Organizations Act (RICO), 18 U.S.C. § 1962. The district 

court dismissed the complaint. We affirm.

I

Because this is an appeal from an order granting a motion 

to dismiss, we assume the truth of the facts alleged in the 

operative complaint—here, CHD’s second amended 

complaint. Ellis v. Salt River Project Agric. Improvement & 

Power Dist., 24 F.4th 1262, 1266 (9th Cir. 2022). After filing 

that complaint, CHD moved to “supplement” it with 

additional allegations, filed a motion for judicial notice that 

contained further allegations, and then moved to “further 
6 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

supplement” the complaint. The district court denied CHD 

leave to amend the complaint but considered the allegations 

within CHD’s motions “as a further proffer of how CHD 

would amend the complaint if given leave to do so.” We 

have likewise considered those allegations, and they are 

reflected in the description of the facts set out below.

CHD describes itself as an organization that seeks “to 

provide the public with timely and accurate vaccine and 5G 

and wireless technology safety information.” To that end, 

CHD publishes articles and opinion pieces on its eponymous 

website and on its Facebook page. Those writings often

describe purported links between vaccinations and various 

illnesses. CHD has posted articles that it claims show that

“[u]nvaccinated kids are healthier” than their vaccinated 

counterparts. Sometimes, CHD posts messages from its 

founder, Robert F. Kennedy, Jr., in which he criticizes Dr. 

Anthony Fauci and Bill Gates and their efforts to encourage 

vaccinations.

Although public discussion of vaccines has taken on a 

new dimension as a result of the COVID-19 pandemic, some 

lawmakers have expressed concern about the proliferation of 

“vaccine misinformation” on social media platforms for 

several years. In February 2019, Representative Adam 

Schiff of California sent a public letter to Zuckerberg, asking

(1) whether “medically inaccurate information” violated 

Facebook’s terms of service; (2) what steps Facebook took 

to address “misinformation related to vaccines” and whether 

it planned to take additional steps; (3) whether Facebook 

allowed anti-vaccine activists and organizations to advertise 

on its platform; and (4) what steps Facebook took to prevent 

its algorithm from recommending anti-vaccine content to 

users. After COVID-19 vaccines became widely available,

some lawmakers expressed renewed concern that social 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 7

media companies like Meta were not doing enough to slow 

the spread of false information about the virus and vaccines. 

For example, Senator Amy Klobuchar of Minnesota wrote

to Zuckerberg, stating that Facebook’s “policies must be 

strictly enforced to limit users’ exposure to misinformation” 

and urging him to “take action against people that are 

spreading content that can harm the health of Americans.”

For its part, Meta announced in early 2019 that it had 

begun to “tackle vaccine misinformation” on Facebook by 

making that content less prominent in search results, 

rejecting ads that included it, and “exploring ways to share 

educational information about vaccines when people come 

across misinformation on this topic.” It promised to “take 

action” against posts that shared “verifiable vaccine hoaxes,” 

as defined by the World Health Organization (WHO) and the 

U.S. Centers for Disease Control and Prevention (CDC).

After those policies were announced, CHD noticed 

changes to the functionality and appearance of its Facebook 

page. A banner was placed at the top of its page, with a 

message that read:

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.

Go to CDC.gov

Around the same time, Meta began flagging CHD’s 

posts as containing factual inaccuracies. To identify content 

posted on Facebook that it considers inaccurate, Meta 
8 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

contracts with the Poynter Institute (which operates a 

website known as “PolitiFact”) and Science Feedback. 

Specifically, Meta directs those services to review and 

classify content that its algorithms have identified as 

potentially containing “misinformation.” If the reviewers

determine that the content contains false or misleading

information, it may appear under a grey overlay that informs 

readers that the post has been labeled false and refers them

to a link so that they can “See Why.” The link leads users to 

a new window that contains a short explanation of the 

classification—for example, that independent fact-checkers 

have determined that the information shared in the post is 

“factually inaccurate.” The contents of the flagged post 

remain accessible, but visitors must click a slightly less 

prominent link in order to view it. If Meta determines that 

the post violates Facebook’s Community Standards, it may 

be removed entirely. 

After identifying repeated factual inaccuracies in CHD’s 

posts, Meta deactivated the “donate” button on CHD’s page, 

telling the group that it had violated Facebook’s “fundraising 

terms and conditions.” Before this happened, CHD had 

received more than $40,000 in donations through its 

Facebook page in 2019. Meta also prohibited CHD, 

Kennedy, and an agency employed by the two from

purchasing advertisements on Facebook because, it said,

CHD had “repeatedly posted content that has been disputed 

by third-party fact-checkers [for] promoting false content.”

As part of its response to the COVID-19 pandemic, Meta 

took further action against CHD. It updated Facebook’s 

policies to prohibit users from sharing any “claims that 

COVID-19 vaccines are not effective in preventing COVID19,” and it created a “Coronavirus (COVID-19) Information 

Center,” which links to the CDC’s website and other 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 9

“leading health organizations” for information on the 

pandemic. Meta then began displaying messages to CHD’s 

followers encouraging them to unsubscribe from its posts 

and referring them to the WHO for facts about COVID-19.

CHD alleges that Meta has also limited the visibility of 

its content using processes known as “shadow-banning” and 

“sandboxing.” With shadow-banning, Meta allows a post to 

remain visible to the poster, and in some cases the poster’s 

Facebook “friends,” while hiding the post from other users. 

With sandboxing, Meta shows CHD’s posts about vaccines 

to like-minded users but not to those who do not already 

share its views. CHD says that, as a result, traffic to its 

website from its Facebook page has declined significantly. 

Although CHD once had the ability to dispute the actions 

Meta took with respect to its page, Meta disabled that

functionality, and it has not been restored.

In August 2020, CHD brought this action in the Northern 

District of California. It alleged that Meta, Zuckerberg, the 

Poynter Institute, and Science Feedback were working in 

concert with or, alternatively, under compulsion from the 

federal government to censor CHD’s speech, in violation of 

the First Amendment, and to deprive it of its property right 

to fundraise on Facebook, in violation of the Fifth 

Amendment. Based on those alleged constitutional 

violations, CHD sought damages under Bivens v. Six 

Unknown Named Agents of Federal Bureau of Narcotics, 

403 U.S. 388 (1971). It also sought injunctive and 

declaratory relief. CHD further claimed that the defendants 

violated the Lanham Act by labeling its posts as false, and 

that the defendants imposed those labels as part of a 

fraudulent scheme to divert donations away from CHD for 

the benefit of Meta’s fact-checkers, in violation of RICO. 
10 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

CHD sought money damages as well as injunctive and 

declaratory relief for those claims too.

Meta, Zuckerberg, and the Poynter Institute moved to 

dismiss, and the district court dismissed the complaint 

without leave to amend. The court held that CHD’s 

constitutional claims failed because “CHD has not alleged 

that the challenged acts constitute federal action.” 

Specifically, the court determined that “general statements 

by the CDC and Zuckerberg about ‘working together’ to 

reduce the spread of health or vaccine misinformation, or to 

promote universal vaccination do not show that the 

government was a ‘joint participant in the challenged 

activity.’” It emphasized that CHD had not “alleged that the 

government was actually involved in the decisions to label 

CHD’s posts as ‘false’ or ‘misleading,’ the decision to put 

the warning label on CHD’s Facebook page, or the decisions 

to ‘demonetize’ or ‘shadow-ban.’” The court further

concluded that “CHD has not alleged facts showing 

government coercion sufficient to deem Facebook or 

Zuckerberg a federal actor.”

The district court also rejected the Lanham Act claim. It 

explained that “the warning label and fact-checks are not 

disparaging CHD’s ‘goods or services,’ nor are they 

promoting the ‘goods or services’ of Facebook, the CDC, or 

the fact-checking organizations such as Poynter.” For those 

reasons, the court concluded that “CHD’s alleged injuries 

are not within the Lanham Act’s ‘zone of interests’ and that 

the warning label and fact-checks are not ‘commercial 

advertising or promotion’” within the scope of the statute.

The district court rejected the RICO claim because CHD 

had not established a predicate act of wire fraud. The court 

stated that “CHD’s allegations . . . do not constitute wire 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 11

fraud because CHD has not alleged any facts showing that 

defendants engaged in a fraudulent scheme to obtain money 

or property from Facebook visitors to CHD’s page.”

Science Feedback is a French nonprofit organization, 

and CHD was apparently unable to serve it with process. As 

a result, the district court dismissed all claims against 

Science Feedback without prejudice.

CHD appeals. We review the district court’s grant of a 

motion to dismiss de novo. Wells Fargo Bank, N.A. v. 

Mahogany Meadows Ave. Tr., 979 F.3d 1209, 1213 (9th Cir. 

2020). “To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)).

II

The First Amendment provides that “Congress shall 

make no law . . . abridging the freedom of speech.” U.S. 

Const. amend. I. Within its scope, the First Amendment 

provides robust protection for free speech. But it has an 

important limitation: It “prohibits only governmental

abridgment of speech” and “does not prohibit private

abridgment of speech.” Manhattan Cmty. Access Corp. v. 

Halleck, 587 U.S. 802, 808 (2019); see Prager Univ. v. 

Google LLC, 951 F.3d 991, 996 (9th Cir. 2020).

That limitation is itself an important protection for 

liberty. If the First Amendment were applied to private 

actors, it would mean, for example, that a newspaper would 

be unable to choose to print the work of only those writers

whose views were consistent with its editorial positions, and 

it could instead be forced by the federal courts to open itself 
12 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

to all writers on a nondiscriminatory basis. See Miami 

Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 254–58 (1974).

“By enforcing [the] constitutional boundary between the 

governmental and the private, the state-action doctrine” 

developed by the Supreme Court to distinguish government 

from private action “protects a robust sphere of individual 

liberty.” Halleck, 587 U.S. at 808; accord Lugar v. 

Edmondson Oil Co., 457 U.S. 922, 936 (1982) (“Careful 

adherence to the ‘state action’ requirement preserves an area 

of individual freedom by limiting the reach of federal law 

and federal judicial power.”).

To begin by stating the obvious, Meta, the owner of 

Facebook, is a private corporation, not a government agency. 

Although that fact is highly relevant here, it does not quite 

end our inquiry because, in certain “exceptional cases,” a 

private party “will be treated as a state actor for 

constitutional purposes.” O’Handley v. Weber, 62 F.4th 

1145, 1155–56 (9th Cir. 2023). The private party must meet

two distinct requirements: (1) the “state policy” requirement

and (2) the “state actor” requirement. Wright v. Service 

Emps. Int’l Union Loc. 503, 48 F.4th 1112, 1121 (9th Cir. 

2022); see Lugar, 457 U.S. at 937; O’Handley, 62 F.4th at 

1156.

To satisfy the state policy requirement, the alleged 

constitutional deprivation must result from “the exercise of 

some right or privilege created by the State” or “a rule of 

conduct imposed by the State or by a person for whom the 

State is responsible.” Lugar, 457 U.S. at 937. To satisfy the 

state actor requirement, the party must “fairly be said to be a 

state actor,” id., which requires that it meet one of four tests: 

(1) the private actor performs a traditionally public function, 

Halleck, 587 U.S. at 804; (2) the private actor is a “willful 

participant in joint activity” with the government, Lugar, 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 13

457 U.S. at 941 (quoting Adickes v. S. H. Kress & Co., 398 

U.S. 144, 152 (1970)); (3) the government compels or 

encourages the private actor to take a particular action, Blum 

v. Yaretsky, 457 U.S. 991, 1004 (1982); or (4) there is a 

“sufficiently close nexus” between the government and the 

challenged action, Jackson v. Metropolitan Edison Co., 419 

U.S. 345, 351 (1974).

This test for state action “ensures that not all private 

parties ‘face constitutional litigation whenever they seek to 

rely on some state rule governing their interactions with the 

community surrounding them.’” Collins v. Womancare, 878 

F.2d 1145, 1151 (9th Cir. 1989) (quoting Lugar, 457 U.S. at 

937). At bottom, both components of the test ask us to 

evaluate whether the nature of the relationship between the 

private party and the government is such that “the alleged 

infringement of federal rights is fairly attributable to the 

[government].” Pasadena Republican Club v. Western Just. 

Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (alteration in 

original) (quoting Sutton v. Providence St. Joseph Med. Ctr., 

192 F.3d 826, 835 (9th Cir. 1999)). In other words, a plaintiff 

must allege facts supporting an inference that the 

government “is responsible for the specific conduct of which 

the plaintiff complains.” Ohno v. Yasuma, 723 F.3d 984, 994 

(9th Cir. 2013) (quoting Blum, 457 U.S. at 1004).

A

We first look to whether the “‘source of the alleged 

constitutional harm’” is “a state statute or policy.” Belgau v. 

Inslee, 975 F.3d 940, 947 (9th Cir. 2020) (quoting Ohno, 723 

F.3d at 994). This requirement is satisfied when a private 

institution “enforce[s] a state-imposed rule” instead of “the 

terms of its own rules.” O’Handley, 62 F.4th at 1156.
14 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

CHD’s state-action theory fails at this threshold step. We 

begin our analysis by identifying the “specific conduct of 

which the plaintiff complains.” Wright, 48 F.4th at 1122 

(quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 

40, 51 (1999)). CHD challenges Meta’s “policy of 

censoring” posts conveying what it describes as “accurate 

information . . . challenging current government orthodoxy 

on . . . vaccine safety and efficacy.” But “the source of the

alleged . . . harm,” Ohno, 723 F.3d at 994, is Meta’s own 

“policy of censoring,” not any provision of federal law. The 

closest CHD comes to alleging a federal “rule of conduct” is 

the CDC’s identification of “vaccine misinformation” and 

“vaccine hesitancy” as top priorities in 2019. But as we 

explain in more detail below, those statements fall far short 

of suggesting any actionable federal “rule” that Meta was 

required to follow. And CHD does not allege that any 

specific actions Meta took on its platforms were traceable to 

those generalized federal concerns about vaccine 

misinformation.

In O’Handley, we rejected a claim similar to CHD’s 

asserted by a Twitter user who objected to Twitter’s decision 

to limit access to his tweets and suspend his account. See 62 

F.4th at 1156. The user alleged that Twitter’s actions were 

prompted by a message from the California Secretary of 

State identifying one of the user’s tweets as spreading 

election-related “disinformation.” Id. at 1154. But because 

“the company acted under the terms of its own rules, not 

under any provision of California law,” we rejected the 

argument that Twitter “ceded control over [its] contentmoderation decisions to the State and thereby became the 

government’s private enforcer[].” Id. The same is true here.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 15

B

CHD’s failure to satisfy the first part of the test is fatal 

to its state action claim. See Lindke v. Freed, 601 U.S. 187, 

198, 201 (2024); but see O’Handley, 62 F.4th at 1157

(noting that our cases “have not been entirely consistent on 

this point”). Even so, CHD also fails under the second part. 

As we have explained, the Supreme Court has identified four

tests for when a private party “may fairly be said to be a state 

actor”: (1) the public function test, (2) the joint action test, 

(3) the state compulsion test, and (4) the nexus test. Lugar, 

457 U.S. at 937, 939.

CHD invokes two of those theories of state action as well 

as a hybrid of the two. First, it argues that Meta and the 

federal government agreed to a joint course of action that 

deprived CHD of its constitutional rights. Second, it argues 

that Meta deprived it of its constitutional rights because 

government actors pressured Meta into doing so. Third, it 

argues that the “convergence” of “joint action” and 

“pressure,” as well as the “immunity” Meta enjoys under 47 

U.S.C. § 230, make its allegations that the government used 

Meta to censor disfavored speech all the more plausible. 

CHD cannot prevail on any of these theories. 

1

The joint action test asks “whether the government has 

so far insinuated itself into a position of interdependence 

with a private entity that the private entity must be 

recognized as a joint participant in the challenged activity.”

Pasadena Republican Club, 985 F.3d at 1167 (quoting 

Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 

1210 (9th Cir. 2002)). Our cases require a plaintiff to plead

facts that give rise to an inference that the private entity’s 
16 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

“particular actions are ‘inextricably intertwined’ with those 

of the government.” Id. (quoting Brunette, 294 F.3d at 1211).

Crucially, it is not enough to show an agreement to do 

something; the private party and the government must also 

have agreed on what the something is. “The generalized 

allegation of a wink and a nod understanding . . . does not 

amount to an agreement or a conspiracy to violate [the 

plaintiff’s] rights in particular.” Brunette, 294 F.3d at 1212.

Thus, a plaintiff must show some specificity to the 

understanding between the private actor and the government. 

See Dennis v. Sparks, 449 U.S. 24, 25–28 (1980) (agreement 

between litigants and judge to issue an illegal injunction 

preventing production on oil leases); Adickes, 398 U.S. at 

152 (agreement between store employee and police officer 

to arrest the plaintiff); Swift v. Lewis, 901 F.2d 730, 731–32 

& n.2 (9th Cir. 1990) (agreement between prison and 

contractor to remove petitioner’s religious classification), 

superseded by statute on other grounds, 42 U.S.C. § 2000cc1(a); Howerton v. Gabica, 708 F.2d 380, 384–85 (9th Cir. 

1983) (agreement between landlord and police officer to 

evict plaintiffs).

CHD has not done so. In an effort to show an agreement, 

CHD points to various statements from Meta and 

government officials, but they suffer from a critical lack of 

specificity. For example, CHD highlights the CDC’s 

statement that it has “engaged” social media companies to 

“contain the spread of misinformation.” That could mean 

many different things, thanks to ambiguity in both the verb 

(“Containing” misinformation by removing it entirely? By 

making it less prominent on the site? By leaving it as is but 

countering it with different information?) and its object 

(What counts as “misinformation”?). The “generic 

promotion of a public purpose” falls far short of establishing
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 17

that Meta’s “particular actions are inextricably intertwined

with those of the government.” Pasadena Republican Club, 

985 F.3d at 1167, 1170 (internal quotation marks omitted).

Without plausible allegations of an agreement to take 

specific action, we cannot say that Meta’s conduct is fairly 

attributable to the government.

CHD asks us to infer a more specific agreement among 

Meta, the Biden Administration, the CDC, and the WHO, in 

which Meta took direction from those entities about what 

content to censor. But the facts that CHD alleges do not 

make that inference plausible in light of the obvious 

alternative—that the government hoped Meta would 

cooperate because it has a similar view about the safety and 

efficacy of vaccines. See Twombly, 550 U.S. at 556–57. 

Links between a social media company’s communications

with the government and its decisions about what content to 

permit “must be evaluated in light of the platform’s 

independent incentives to moderate content.” Murthy v. 

Missouri, 144 S. Ct. 1972, 1988 (2024) (rejecting similar 

claims that government officials and agencies pressured 

platforms to unconstitutionally suppress COVID-19 

misinformation). Statements that government officials

“engaged” with social media companies to ensure that those

companies “understand the importance of misinformation 

and disinformation and how they can get rid of it quickly” 

are consistent with the explanation of parallel objectives and 

do not show the specific agreement that CHD suggests. As 

for the WHO, it is an intergovernmental agency, not part of 

the federal government, so its meeting with Meta in which it

“discussed” Meta’s “role in spreading ‘lifesaving health 

information’” is irrelevant to the state-action inquiry.

In a belated attempt to bolster its theory, CHD asks us to 

take judicial notice of various documents showing that the 
18 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

government works with social media companies to educate 

them about what it considers to be misinformation on their 

platforms. “[W]e rarely take judicial notice of facts 

presented for the first time on appeal.” Reina-Rodriguez v. 

United States, 655 F.3d 1182, 1193 (9th Cir. 2011). We do 

not think it is appropriate to do so here, especially because 

the facts CHD presents are not free from “reasonable 

dispute.” Fed. R. Evid. 201(b). To be sure, it would be proper 

to take judicial notice of the fact that the documents exist.

Cf. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 

2001). But CHD’s allegations rely on the substance of the 

documents and what the statements in them establish. 

Because those statements are “subject to varying

interpretations,” they cannot qualify for judicial notice. 

Reina-Rodriguez, 655 F.3d at 1193.

In any event, even if we were to consider the documents, 

they do not make it any more plausible that Meta has taken

any specific action on the government’s say-so. To the 

contrary, they indicate that Meta and the government have 

regularly disagreed about what policies to implement and 

how to enforce them. See Murthy, 144 S. Ct. at 1987

(highlighting evidence “that White House officials had 

flagged content that did not violate company policy”). Even 

if Meta has removed or restricted some of the content of 

which the government disapproves, the evidence suggests

that Meta “had independent incentives to moderate content

and . . . exercised [its] own judgment” in so doing. Id.

That the government submitted requests for removal of 

specific content through a “portal” Meta created to facilitate 

such communication does not give rise to a plausible 

inference of joint action. Exactly the same was true in

O’Handley, where Twitter had created a “Partner Support 

Portal” through which the government flagged posts to 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 19

which it objected. 62 F.4th at 1160. Meta was entitled to 

encourage such input from the government as long as “the 

company’s employees decided how to utilize this 

information based on their own reading of the flagged 

posts.” Id. It does not become an agent of the government

just because it decides that the CDC sometimes has a point.

The circumstantial evidence that CHD proffers does not 

nudge its claims into the realm of plausibility either. CHD

alleges, for example, that when Meta deactivated the 

“donate” button on CHD’s page in May 2019, it must have 

done so because of the letter Representative Schiff sent to 

Meta that February. In the letter, Schiff expressed concern 

that misleading or incorrect information about vaccines was 

leading to a decline in vaccine uptake. He asked Meta to 

explain how it dealt with such content on its platform, and 

he “encourage[d] [Meta] to consider . . . additional steps.” It 

is simply not reasonable to infer from those two events that 

Meta “takes direction from the federal government about 

what COVID-related speech to censor,” as CHD would have 

it.

Failing to allege a plausible agreement between Meta 

and the government, CHD seeks to fill the gap by arguing 

that the CDC supplied Meta with a “standard of decision” by 

which allegedly unconstitutional actions were taken. 

Pointing to statements from Zuckerberg announcing that 

Meta defers to the CDC for “authoritative information,” 

CHD asserts that the algorithms Meta implemented to flag 

misinformation apply “agreed-to, government-provided 

standards of decision.” 

CHD invokes Mathis v. Pacific Gas & Electric Co.

(Mathis I), in which we allowed a Bivens action to proceed 

against PG&E, a public utility company, because we 
20 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

concluded that a former employee of a PG&E contractor had 

plausibly alleged that PG&E denied him access to a nuclear 

power plant “on the basis of some rule of decision for which 

the State is responsible.” 891 F.2d 1429, 1432 (9th Cir. 

1989) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 843 

(1982) (White, J., concurring in the judgments)).

Specifically, Mathis had been denied access to the plant and 

then fired because he was suspected of selling or using 

illegal drugs. Id. at 1430, 1432–33. He alleged that PG&E

denied him access because the Nuclear Regulatory 

Commission had pressured and encouraged PG&E to adopt

a policy of excluding from nuclear power facilities anyone 

who sold or used drugs. See id. at 1433; see also Mathis v. 

Pacific Gas & Elec. Co. (Mathis II), 75 F.3d 498, 502–03

(9th Cir. 1996) (requiring a showing that a “standard 

compelled” a certain decision). If that allegation were true, 

we reasoned, it would establish that PG&E’s decision to 

exclude Mathis was fairly attributable to the government. 

Mathis I, 891 F.2d at 1434.

The allegations here are far different from those in 

Mathis I. Mathis alleged the existence of an informal

government policy that required the utility to take a specific 

action in response to certain events. CHD has alleged that 

Meta banned “vaccine misinformation” and that it defers to 

the CDC for “authoritative information” on that topic. It has 

failed, however, to allege any facts that would allow us to 

infer an agreement between the government and Meta that 

required Meta to take a particular action in response to 

misinformation about vaccines. Further, as we have already 

explained, “misinformation” is far too amorphous a concept 

to serve as the type of “standard” contemplated by Mathis I.

See 891 F.2d at 1433–34. And without a standard that can 

plausibly be said to require a specific outcome, it is not fair 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 21

to say that Meta’s “choice must in law be deemed to be that 

of the State.” Blum, 457 U.S. at 1004. 

Finally, CHD argues that financial benefits flowing from 

Meta to the government support an inference that Meta’s 

conduct constitutes state action. In so doing, it invokes the 

Supreme Court’s observation that a plaintiff may 

“sometimes” be able to prove government responsibility for 

a nominally private action if the government “knowingly 

accepts the benefits derived from unconstitutional 

behavior.” National Collegiate Athletic Ass’n v. Tarkanian, 

488 U.S. 179, 192 (1988). The putative “benefits” here are 

$35 million Zuckerberg and Meta have donated to the CDC 

Foundation and the “millions of dollars in free advertising” 

and reputational benefits Meta has given the CDC. But those 

benefits are not directly tied to the specific action being 

challenged in this case: restricting CHD’s Facebook posts. 

CHD therefore has not alleged the kind of “significant 

financial integration” that we have found probative in 

determining whether the joint-action test is satisfied. 

Pasadena Republican Club, 985 F.3d at 1168 (quoting 

Brunette, 294 F.3d at 1213). To the contrary, Zuckerberg and 

Meta’s donations to the CDC Foundation make the innocent 

alternative—that Meta adopted the policy it did simply 

because Zuckerberg and Meta share the government’s view 

that vaccines are safe and effective—all the more plausible.

We acknowledge that there is a degree of uncertainty in 

determining how specific the details of an agreement must 

be before a plaintiff can be said to have plausibly alleged 

joint action. The Supreme Court has remarked that the stateaction inquiry is a “matter of normative judgment” whose 

“criteria lack rigid simplicity,” so some uncertainty is 

inherent in the doctrine. Brentwood Acad. v. Tennessee 

Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). 
22 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

But wherever the line may be, CHD is far from it. Rather 

than pleading facts that allow us to infer that the government 

and Meta agreed to censor speech on Facebook, CHD has

alleged that the government hoped Meta would cooperate in 

its efforts to promote the safety and efficacy of vaccines.

Meta has a First Amendment right to use its platform to 

promote views it finds congenial and to refrain from 

promoting views it finds distasteful: “Like . . . editors, cable 

operators, and parade organizers,” social media companies

make “choices about whether—and, if so, how—to convey 

posts having a certain content or viewpoint” that “rest on a 

set of beliefs about which messages are appropriate and 

which are not.” Moody v. NetChoice, LLC, 144 S. Ct. 2383,

2405 (2024). Even though companies like Meta “happily 

convey the lion’s share of posts submitted to them,” it 

remains “as much an editorial choice to convey all speech 

except in select categories as to convey only speech within 

them.” Id. at 2406. “When the platforms use their Standards 

and Guidelines to decide which third-party content [their]

feeds will display, or how the display will be ordered and 

organized, they are making expressive choices. And because 

that is true, they receive First Amendment protection.” Id.

Meta evidently believes that vaccines are safe and 

effective and that their use should be encouraged. It does not 

lose the right to promote those views simply because they

happen to be shared by the government.

2

A private party may also be considered a state actor if it 

has acted because the government coerced or compelled it to 

do so. Under the coercion test, the government must have 

“exercised coercive power or . . . provided such significant 

encouragement, either overt or covert, that the choice must 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 23

in law be deemed to be that of the State.” Blum, 457 U.S. at 

1004. The government’s “[m]ere approval of” private 

initiatives, however, “is not sufficient to justify holding the 

State responsible for those initiatives.” Id. at 1004–05.

Instead, the government must “convey a threat of adverse 

government action,” National Rifle Ass’n of Am. v. Vullo, 

602 U.S. 175, 191 (2024), or otherwise impose incentives 

that “overwhelm” and “essentially compel” the party to 

comply with its requests, O’Handley, 62 F.4th at 1158. 

At the outset, we note that there is reason to doubt that a 

purely private actor like Meta, which was the victim of the 

alleged coercion, would be the appropriate defendant, rather 

than the government officials responsible for the coercion. 

In Sutton v. Providence St. Joseph Medical Center, for 

example, we said that “only the state actor, and not the 

private party, should be held liable for the constitutional 

violation that resulted from the state compulsion.” 192 F.3d 

at 838 (quoting Barbara Rook Snyder, Private Motivation, 

State Action and the Allocation of Responsibility for 

Fourteenth Amendment Violations, 75 Cornell L. Rev. 1053, 

1067 (1990)). But see generally Carlin Commc’ns, Inc. v. 

Mountain States Tel. & Tel. Co., 827 F.2d 1291 (9th Cir. 

1987). We need not resolve that question here because CHD

has not adequately pleaded facts supporting a coercion 

theory of state action.

CHD’s theory of coercion turns on statements made by 

lawmakers threatening to hold social media companies 

“accountable” for failing to police “misinformation” on their 

platforms. Those statements do not meet the standard we 

have articulated for finding state action. Here again, the key 

case arises from the Mathis litigation, this time Mathis II. In 

his second appeal, Mathis argued that he had proved his 

claim that PG&E excluded him from the power plant
24 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

because it applied a “standard of decision” imposed on the 

utility by the government. Mathis II, 75 F.3d at 502 (quoting 

Mathis I, 891 F.2d at 1434). But rather than demonstrating 

that the government pressured the utility into adopting a 

specific policy requiring his exclusion, Mathis showed only 

that PG&E “was aware of a generalized federal concern with 

drug use at nuclear power plants” and that PG&E “was 

looking to score Brownie points” with the government by 

adopting a policy to address that concern. Id. Mathis argued 

that he came “close enough” to proving coercion because his 

evidence gave rise to the inference that PG&E implemented 

a drug-use policy to “allay [the government’s] concerns.” Id.

at 503. But we rejected that argument. We explained that

Mathis “asks us to hold that regulatory interest in a problem 

transforms any subsequent private efforts to address the 

problem (even those expressly designed to obviate the need 

for regulation) into state action.” Id. We refused to do so, 

adding that “[i]f the government is considering regulation, 

affected private parties can try to convince it there’s no need 

to regulate without thereby transforming themselves into the 

state’s agents.” Id.

CHD has not alleged facts that allow us to infer that the 

government coerced Meta into implementing a specific 

policy. Instead, it cites statements by Members of Congress

criticizing social media companies for allowing 

“misinformation” to spread on their platforms and urging 

them to combat such content because the government would 

hold them “accountable” if they did not. Like the 

“generalized federal concern[s]” in Mathis II, those 

statements do not establish coercion because they do not 

support the inference that the government pressured Meta 

into taking any specific action with respect to speech about

vaccines. Mathis II, 75 F.3d at 502. Indeed, some of the 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 25

statements on which CHD relies relate to alleged 

misinformation more generally, such as a statement from 

then-candidate Biden objecting to a Facebook ad that falsely 

claimed that he blackmailed Ukrainian officials. All CHD 

has pleaded is that Meta was aware of a generalized federal 

concern with misinformation on social media platforms and 

that Meta took steps to address that concern. See id. If Meta 

implemented its policy at least in part to stave off 

lawmakers’ efforts to regulate, it was allowed to do so 

without turning itself into an arm of the federal government. 

See id. at 503.

CHD argues that the letters sent to Meta by Senator 

Klobuchar and Representative Schiff demonstrate the 

necessary coercion. In one of Klobuchar’s letters, she urged

Meta to “take action” against prominent anti-vaccine 

influencers such as Kennedy. In another letter, she asked

Meta a series of questions about its handling of “vaccinerelated misinformation,” told it that transparency was

“imperative,” and said that “policies must be strictly 

enforced to limit users’ exposure to misinformation.”

Schiff’s letter was along similar lines. But in contrast to 

cases where courts have found coercion, the letters did not 

require Meta to take any particular action and did not 

threaten penalties for noncompliance. See National Rifle 

Ass’n of Am., 602 U.S. at 193 (agency superintendent 

promising to “ignore” insurance-law violations if insurer 

“ceased underwriting NRA policies and disassociated from 

gun-promotion groups”); Bantam Books, Inc. v. Sullivan, 

372 U.S. 58, 62 n.5 (1963) (state commission notifying book 

distributor of the names of “obscene publications” that were 

“objectionable for sale” and implying that the Attorney 

General would prosecute if the bookseller did not 

cooperate); Carlin Commc’ns, 827 F.2d at 1295 (county 
26 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

attorney threatening to prosecute if a utility did not terminate 

plaintiff’s service); Backpage.com, LLC v. Dart, 807 F.3d 

229, 230–31 (7th Cir. 2015) (county sheriff demanding that 

credit card companies “immediately cease and desist” from

allowing their cards to be used to purchase advertisements 

on an adult website); Okwedy v. Molinari, 333 F.3d 339, 

341–42 (2d Cir. 2003) (per curiam) (city borough president 

objecting to a message on a billboard designed by a media 

company and directing the company to contact his counsel).

Moreover, “[t]he power that a government official 

wields . . . is relevant to the objective inquiry of whether a 

reasonable person would perceive the official’s 

communication as coercive.” National Rifle Ass’n of Am., 

602 U.S. at 191. “[D]irect regulatory and enforcement 

authority,” such as the ability to “initiate investigations and 

refer cases for prosecution,” makes coercion more likely. Id.

at 192. By contrast, “[a] letter from a single Senator backed 

by no statutory mandate is far afield from [a] system of 

‘effective state regulation’” that would suggest coercion. 

Kennedy v. Warren, 66 F.4th 1199, 1210 (9th Cir. 2023)

(quoting Bantam Books, 327 U.S. at 69). Unlike “an 

executive official with unilateral power that could be 

wielded in an unfair way if the recipient did not acquiesce,”

a single legislator lacks “unilateral regulatory authority.” Id.

A letter from a legislator would therefore “more naturally be 

viewed as relying on her persuasive authority rather than on 

the coercive power of the government.” Id.

The statements here are firmly on the constitutional side 

of the sometimes “fine lines between permissible 

expressions of personal opinion and implied threats to 

employ coercive state power to stifle protected speech.” 

Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33, 39 (2d 

Cir. 1983); see O’Handley, 62 F.4th at 1158 (holding that 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 27

Twitter’s compliance with a particularized government 

“request with no strings attached” was the product of the 

company’s “own independent judgment”). 

3

CHD also advances a hybrid theory of joint action and 

coercion that focuses on section 230 of the Communications 

Decency Act, 47 U.S.C. § 230. That provision states that 

“[n]o provider or user of an interactive computer service 

shall be treated as the publisher or speaker of any 

information provided by another information content 

provider.” Id. § 230(c)(1). It also immunizes providers of 

interactive computer services from civil liability for “any 

action voluntarily taken in good faith to restrict access to or 

availability of material that the provider or user considers to 

be obscene, lewd, lascivious, filthy, excessively violent, 

harassing, or otherwise objectionable, whether or not such 

material is constitutionally protected.” Id. § 230(c)(2)(A).

The immunity from liability conferred by section 230 is 

undoubtedly a significant benefit to companies like Meta 

that operate social media platforms. It might even be the case 

that such platforms could not operate at their present scale 

without section 230. But many companies rely, in one way 

or another, on a favorable regulatory environment or the 

goodwill of the government. If that were enough for state 

action, every large government contractor would be a state 

actor. But that is not the law.

CHD seeks to analogize section 230 to the regulatory 

scheme that the Supreme Court considered in Skinner v. 

Railway Labor Executives’ Ass’n, but the analogy is inapt.

489 U.S. 602 (1989). That case involved Federal Railroad 

Administration (FRA) regulations authorizing railroads to 

conduct drug tests on employees suspected of violating 
28 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

certain safety rules. Id. at 606, 611. The FRA argued that 

because the regulations merely permitted testing, but did not 

require it, the tests would not constitute state action and 

would not implicate the Fourth Amendment. Id. at 614. The 

Court rejected that argument, reasoning that the “specific 

features of the regulations” demonstrated that “the 

Government did more than adopt a passive position toward 

the underlying private conduct.” Id. at 615. In particular, the 

regulations preempted state laws, superseded “any provision 

of a collective bargaining agreement,” and prohibited a 

railroad from “divest[ing] itself of” or “otherwise 

compromis[ing] by contract” the ability to conduct the tests. 

Id. (citation omitted). In addition, the regulations gave the 

FRA “the right to receive certain biological samples and test 

results”—the “fruits” of the searches—and mandated that 

any employee who refused to undergo a test “be withdrawn 

from covered service.” Id. Those features, considered 

together, made the Court “unwilling to accept” the argument 

that any searches would be “primarily the result of private 

initiative.” Id.

CHD argues that because the immunity in section 230, 

like the regulatory regime in Skinner, “removed all legal 

barriers” to the censorship of vaccine-related speech, Meta’s 

restriction of that content should be considered state action. 

See 489 U.S. at 615. But section 230 is fundamentally unlike 

the regulations in Skinner. The statute is entirely passive—a 

provider can leave content on its platform without worrying 

that the speech of the poster will be imputed to it, or it may 

choose to restrict content it considers “objectionable” 

without the threat of lawsuits. Significantly, in Skinner, the 

removal of “legal barriers” was just one among several 

facets of the regulatory scheme that the Court cited in finding

state compulsion. Id. Under that scheme, the government 
 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 29

sought to encourage railroads both to test their employees 

and to share the “fruits” of those tests with the government. 

Id. As evidence of such encouragement, the Court noted that 

the government imposed on railroads a “duty to promote the 

public safety” and “mandated” that they fulfill that duty by 

preserving their state-conferred “authority to perform tests.” 

Id. (citation omitted). 

Such “indices of the Government’s encouragement, 

endorsement, and participation” to promote particular 

private conduct are absent here. Id. at 615–16. Section 230 

is just as protective of a provider’s right to maintain

“objectionable” content on its platform as it is of a provider’s 

right to delete such content. The “legislative grace” 

providers enjoy under Section 230 merely affords them the 

ability to choose whether to suppress certain third-party 

speech without risking costly litigation. By giving 

companies like Meta that freedom, the government has 

hardly expressed a “strong preference” for the removal of

speech critical of vaccines. Id. 

It would be exceptionally odd to say that the government, 

through section 230, has expressed any preference at all as 

to the removal of anti-vaccine speech, because the statute 

was enacted years before the government was concerned 

with speech related to vaccines, and the statute makes no 

reference to that kind of speech. Rather, as the text of section 

230(c)(2)(A) makes clear—and as the title of the statute (i.e., 

the “Communications Decency Act”) confirms—a major 

concern of Congress was the ability of providers to restrict 

sexually explicit content, including forms of such content

that enjoy constitutional protection. It is not difficult to find 

examples of Members of Congress expressing concern about 

sexually explicit but constitutionally protected content, and 

many providers, including Facebook, do in fact restrict it. 
30 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

See, e.g., 141 Cong. Rec. 22,045 (1995) (statement of Rep. 

Wyden) (“We are all against smut and pornography . . . .”); 

id. at 22,047 (statement of Rep. Goodlatte) (“Congress has a 

responsibility to help encourage the private sector to protect 

our children from being exposed to obscene and indecent 

material on the Internet.”); Shielding Children’s Retinas 

from Egregious Exposure on the Net (SCREEN) Act, S. 

5259, 117th Cong. (2022); Adult Nudity and Sexual Activity, 

Meta, https://transparency.fb.com/policies/communitystandards/adult-nudity-sexual-activity [https://perma.cc/

SJ63-LNEA] (“We restrict the display of nudity or sexual 

activity because some people in our community may be 

sensitive to this type of content.”). While platforms may or 

may not share Congress’s moral concerns, they have 

independent commercial reasons to suppress sexually

explicit content. “Such alignment does not transform private 

conduct into state action.” O’Handley, 62 F.4th at 1157. 

CHD insists that it “is not arguing that Section 230 turns 

all content moderation by all websites into state action,” but 

rather that “Section 230(c)(2), in combination with . . . 

sustained federal pressure” and “statements of strong 

preference” and “encouragement,” turns Meta’s handling of 

vaccine-related content into state action. As we have 

explained, those statements and requests do not establish 

either coercion or joint action. That Section 230 operates in 

the background to immunize Meta if it chooses to suppress

vaccine misinformation—whether because it shares the 

government’s health concerns or for independent 

commercial reasons—does not transform Meta’s choice into

state action.

If we were to accept CHD’s argument, it is difficult to 

see why would-be purveyors of pornography would not be 

able to assert a First Amendment challenge on the theory 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 31

that, viewed in light of section 230, statements from 

lawmakers urging internet providers to restrict sexually

explicit material have somehow made Meta a state actor

when it excludes constitutionally protected pornography 

from Facebook. So far as we are aware, no court has ever 

accepted such a theory.

* * *

CHD’s inability to establish state action is fatal to all of 

its First Amendment claims—for damages under Bivens, for 

declaratory relief, and for an injunction. And to the extent 

that CHD continues to argue on appeal that Meta’s disabling 

of its donation button was a “taking” under the Fifth 

Amendment, that claim fails for the same reason.

Meta identifies several other hurdles to CHD’s damages 

claims. For example, it argues that CHD cannot hold Meta, 

a private corporation, liable under Bivens, see Correctional 

Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001); that CHD 

has not adequately alleged that Zuckerberg was personally 

involved in any alleged constitutional violation, see Iqbal, 

556 U.S. at 677; and that it would be inappropriate to extend 

Bivens to this context, see Egbert v. Boule, 596 U.S. 482, 

491–93 (2022); Pettibone v. Russell, 59 F.4th 449, 454–55

(9th Cir. 2023). Because the state-action inquiry resolves all 

of the constitutional causes of action, we need not reach 

those issues.

Our decision should not be taken as an endorsement of

Meta’s policies about what content to restrict on Facebook. 

It is for the owners of social media platforms, not for us, to 

decide what, if any, limits should apply to speech on those 

platforms. That does not mean that such decisions are wholly 

unchecked, only that the necessary checks come from 

competition in the market—including, as we have seen, in 
32 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

the market for corporate control. If competition is thought to 

be inadequate, it may be a subject for antitrust litigation, or 

perhaps for appropriate legislation or regulation. But it is not 

up to the courts to supervise social media platforms through 

the blunt instrument of taking First Amendment doctrines 

developed for the government and applying them to private 

companies. Whether the result is “good or bad policy,” that 

limitation on the power of the courts is a “fundamental fact 

of our political order,” and it dictates our decision today.

Lugar, 457 U.S. at 937.

III

CHD claims that “the warning label and fact-checks” 

Meta placed on its posts violated the Lanham Act. The 

district court dismissed that claim because it held that 

(1) CHD’s alleged injuries did not fall within the zone of 

interests that the Lanham Act protects and (2) the factchecking labels were not statements made in “commercial 

advertising or promotion.” We agree with the district court

on the latter ground, so we need not reach the former.

As relevant here, the Lanham Act provides a cause of 

action against any person who, “in commercial advertising 

or promotion, misrepresents the nature, characteristics, 

qualities, or geographic origin of his or her or another 

person’s goods, services, or commercial activities.” 15 

U.S.C. § 1125(a)(1)(B). We have defined “commercial 

advertising or promotion” to encompass “(1) commercial 

speech, (2) by a defendant who is in commercial competition 

with [the] plaintiff, (3) for the purpose of influencing 

consumers to buy [the] defendant’s goods or 

services, . . . (4) that is sufficiently disseminated to the 

relevant purchasing public.” Ariix, LLC v. NutriSearch 

Corp., 985 F.3d 1107, 1115 (9th Cir. 2021). “Commercial 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 33

speech,” we have explained, generally refers to speech that

“‘does no more than propose a commercial transaction.’” Id.

(quoting United States v. United Foods, Inc., 533 U.S. 405, 

409 (2001)).

By that definition, Meta did not engage in “commercial 

speech”—and, thus, was not acting “in commercial 

advertising or promotion”—when it labeled some of CHD’s 

posts false or directed users to fact-checking websites. 

Meta’s commentary on CHD’s posts did not represent an 

effort to advertise or promote anything, and it did not 

propose any commercial transaction, even indirectly.

In arguing to the contrary, CHD emphasizes that we have 

looked to the “economic motivation” of the speaker in 

assessing whether speech is commercial in nature. Ariix, 985 

F.3d at 1116 (quoting Hunt v. City of Los Angeles, 638 F.3d 

703, 715 (9th Cir. 2011)). According to CHD, Meta placed

labels on its posts in order to “promot[e]” Meta’s factcheckers, who compete with CHD “in the nonprofit health 

information market.” It also says that Meta sought to factcheck CHD’s posts to ensure that it continued to receive 

advertising revenue from vaccine manufacturers and to 

dissuade lawmakers from repealing section 230—“which is 

worth billions of dollars” to Meta. But economic motivation 

is a factor we consider “[w]here the facts present a close 

question,” which the facts here do not. Hunt, 638 F.3d at 

715; see Dex Media W., Inc. v. City of Seattle, 696 F.3d 952, 

960 (9th Cir. 2012) (explaining that an “economic motive in 

itself is insufficient to characterize a publication as 

commercial”). More importantly, the economic-motivation 

test asks “whether the speaker acted primarily out of 

economic motivation, not simply whether the speaker had 

any economic motivation.” Ariix, 985 F.3d at 1116. As we 

have explained, “[a] simple profit motive to sell copies of a 
34 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

publication or to obtain an incidental economic benefit, 

without more, does not make something commercial speech. 

Otherwise, virtually any newspaper, magazine, or book for 

sale could be considered a commercial publication.” Id. at 

1117.

Under any of CHD’s theories, the allegations suggest at 

most that Meta acted with an economic motivation “to 

obtain an incidental economic benefit.” Ariix, 985 F.3d at 

1117. As described in the complaint, Meta’s economic 

interests are far too remote from the challenged speech for it 

to be plausible that “the economic benefit was the primary 

purpose for speaking.” Id. The district court therefore 

correctly concluded that the complaint did not state a claim 

under the Lanham Act.

IV

CHD also asserts a civil RICO claim. RICO makes it a 

crime for a person employed by or associated with an 

enterprise to conduct or participate in the conduct of the 

enterprise’s affairs through a pattern of racketeering activity, 

and it allows “[a]ny person injured in his business or 

property by reason of a violation” to bring a civil damages 

action. 18 U.S.C. § 1964(c); see id. § 1962(c). As relevant 

here, the “racketeering activity” covered by RICO includes 

“any act which is indictable under” the federal wire fraud 

statute, 18 U.S.C. § 1343. Id. § 1961(1)(B). That statute, in 

turn, prohibits the use of electronic communications for the 

purpose of executing “any scheme or artifice to defraud, or 

for obtaining money or property by means of false or 

fraudulent pretenses, representations, or promises.” Id.

§ 1343.

To survive a motion to dismiss, CHD needed to plead 

facts that would support a plausible inference that the 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 35

defendants had engaged in a scheme or artifice to defraud

and that it suffered injury by reason of that scheme. It did not 

do so. In the complaint, CHD described a scheme whereby

Meta placed warning labels on CHD’s posts with the intent 

to “clear the field” of CHD’s alternative point of view, thus 

keeping vaccine manufacturers in business so that they 

would buy ads on Facebook and ensure that Zuckerberg 

obtained a return on his investments in vaccine technology. 

CHD has now abandoned that theory and instead focuses on 

a different theory that it advanced for the first time in 

response to the motion to dismiss. Under that theory, the 

object of the scheme was “to deceive visitors to CHD’s 

Facebook page into giving their charitable dollars not to 

CHD, but to other, competing nonprofit organizations.” The 

district court might have deemed that theory to be forfeited, 

but because it addressed the theory on the merits, we will do 

so as well. 

CHD emphasizes that a RICO plaintiff alleging fraud 

need not show that it relied on any false statements by the 

defendant but can in some cases allege that the defendant 

harmed it by deceiving third parties. For example, in Bridge 

v. Phoenix Bond & Indemnity Co., the Supreme Court held 

that losing bidders in a tax-lien auction could bring a RICO 

action against rival bidders who engaged in a fraudulent 

scheme to win auctions by deceiving the seller. 553 U.S. 

639, 649–50 (2008). The Court offered an example to 

illustrate the point: “[S]uppose an enterprise that wants to get 

rid of rival businesses mails misrepresentations about them 

to their customers and suppliers . . . . If the rival businesses 

lose money as a result of the misrepresentations, it would 

certainly seem that they were injured in their business ‘by 

reason of’ a pattern of mail fraud.” Id. (quoting 18 U.S.C. 

§ 1964(c)).
36 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

The rule in Bridge does not help CHD because the key 

deficiency in CHD’s claims of wire fraud is not that the 

alleged deception targeted third parties; it is the disconnect

between the alleged deception and the asserted injury to 

CHD. The statutory phrase “by reason of” requires 

proximate cause. Holmes v. Securities Inv. Prot. Corp., 503 

U.S. 258, 268 (1992). For RICO purposes, that means the

plaintiff must allege “some direct relation between the injury 

asserted and the injurious conduct alleged.” Hemi Grp., LLC 

v. City of New York, 559 U.S. 1, 9 (2010) (quoting Holmes, 

503 U.S. at 268). For example, in Bridge, the bidders

adequately pleaded proximate cause because their auction 

losses were the “direct result” of the alleged fraud. 553 U.S. 

at 658. The rival bidders deceived the seller about the share 

of tax liens for which they were eligible, thereby reducing 

the losing bidders’ share. Id. at 643–44, 658. “[N]o 

independent factors” accounted for the plaintiffs’ loss. Id. at 

658.

More recently, in Hemi Group, LLC v. City of New York, 

the Supreme Court held that a RICO plaintiff failed to plead 

proximate cause where a direct link was lacking. 559 U.S. at 

10. The City claimed that a cigarette vendor committed fraud 

by neglecting to file required reports listing its purchasers

with the State, obstructing the City’s efforts to collect taxes

from the unidentified purchasers. Id. at 5–6. The Court 

rejected the claim because the conduct “directly responsible” 

for the City’s injury—the purchasers’ failure to pay taxes—

was “distinct from the conduct giving rise to the fraud”—the 

vendor’s failure to file the purchaser reports. Id. at 11; see 

Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458 (2006). 

Unlike in Bridge, the losses to the City flowed from the 

“independent actions” of purchasers to withhold the taxes 

they owed. Hemi Grp., 559 U.S. at 15.
 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 37

The causal chain that CHD proposes is, to put it mildly, 

indirect. CHD contends that Meta deceived Facebook users 

who visited CHD’s page by mislabeling its posts as false. 

The labels that Meta placed on CHD’s posts included links 

to fact-checkers’ websites. If a user followed a link, the factchecker’s website would display an explanation of the

alleged falsity in CHD’s post. On the side of the page, the 

fact-checker had a donation button for the organization. 

Meanwhile, Meta had disabled the donation button on 

CHD’s Facebook page. If a user decided to donate to the 

fact-checking organization, CHD maintains, that money 

would come out of CHD’s pocket, because CHD and factcheckers allegedly compete for donations in the field of

health information. 

The alleged fraud— Meta’s mislabeling of CHD’s 

posts— is several steps removed from the conduct directly 

responsible for CHD’s asserted injury: users’ depriving 

CHD of their donation dollars. At a minimum, the sequence 

relies on users’ independent propensities to intend to donate 

to CHD, click the link to a fact-checker’s site, and be moved 

to reallocate funds to that organization. This causal chain is 

far too attenuated to establish the direct relationship that 

RICO requires. Proximate cause “is meant to prevent these 

types of intricate, uncertain inquiries from overrunning 

RICO litigation.” Anza, 547 U.S. at 460. 

CHD’s theory also strains credulity. It is not plausible 

that someone contemplating donating to CHD would look at 

CHD’s Facebook page, see the warning label placed there, 

and decide instead to donate to . . . a fact-checking 

organization. See Twombly, 550 U.S. at 555. The district 

court noted that CHD did not allege that any visitors to its 

page had in fact donated to other organizations because of 

Meta’s fraudulent scheme. CHD is correct that an actual 
38 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

transfer of money or property is not an element of wire fraud, 

as “[t]he wire fraud statute punishes the scheme, not its 

success.” Pasquantino v. United States, 544 U.S. 349, 371 

(2005) (alteration in original) (quoting United States v. 

Pierce, 224 F.3d 158, 166 (2d Cir. 2000)). But the fact that 

no donations were diverted provides at least some reason to 

think that no one would have expected or intended the 

diversion of donations.

If that were not enough, the Supreme Court has 

cautioned us to ensure that fraud offenses be defined “with 

sufficient definiteness that ordinary people can understand 

what conduct is prohibited and . . . in a manner that does not 

encourage arbitrary and discriminatory enforcement.” 

Skilling v. United States, 561 U.S. 358, 402–03 (2010)

(quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)); see 

McDonnell v. United States, 579 U.S. 550, 576 (2016) 

(noting a due-process concern with the prospect of 

“prosecution, without fair notice, for the most prosaic 

interactions”). In seeking to hold the defendants liable for 

statements on matters of public concern, CHD ignores that 

caution. For example, under CHD’s view, it would seem that 

a political party could bring a RICO claim against a rival 

political party on the theory that its allegedly false 

statements were part of a fraudulent scheme to divert 

political contributions from the plaintiff party to its rival. 

Such an application of the fraud statutes would raise serious 

First Amendment concerns. We reject CHD’s invitation to 

construe fraud so broadly.

V

We affirm the district court’s dismissal of CHD’s claims 

against Science Feedback for insufficient service of process. 

Although the dismissal was without prejudice, we have 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 39

jurisdiction over CHD’s appeal. Unlike a dismissal with 

leave to amend, which permits further proceedings and 

therefore is not final, see WMX Techs., Inc. v. Miller, 104 

F.3d 1133, 1136 (9th Cir. 1997) (en banc), the dismissal here 

means that the case “is over as far as the district court is 

concerned,” so it is final and appealable, De Tie v. Orange 

County, 152 F.3d 1109, 1111 (9th Cir. 1998); see Constien 

v. United States, 628 F.3d 1207, 1210 (10th Cir. 2010)

(“[D]ismissal without prejudice for failure of service is a 

dismissal of the action and not just the complaint because no 

amendment of the complaint could cure the defect.”).

We review the district court’s assessment of the 

adequacy of service for abuse of discretion, and we find 

none. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 

1007, 1014 (9th Cir. 2002). CHD made two efforts to serve 

Science Feedback, but both were unsuccessful. It then asked

the district court to let it serve Meta’s counsel instead, 

arguing that the contractual relationship between Meta and 

Science Feedback made such service appropriate. The 

district court denied that motion but stated that CHD could 

renew it if further efforts to serve proved ineffective. CHD

never did so. Although it made another unsuccessful attempt

at service, it did nothing else until after the district court 

entered judgment.

CHD argues that Science Feedback has had actual notice 

of this litigation, but that is not a substitute for service of 

process under Federal Rule of Civil Procedure 4. See 

Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982). 

It also contends that the district court should have applied

Rule 4(m), which requires that a court provide notice to the 

plaintiff before dismissing the action on its own motion 

when service has not been timely made. But Science 
40 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 

Feedback is domiciled in France, and by its terms, Rule 4(m) 

“does not apply to service in a foreign country.” 

The motions for judicial notice (Dkt. Nos. 64, 70, 78, 86, 

92) are DENIED. 

AFFIRMED.

COLLINS, Circuit Judge, concurring in part, concurring in 

the judgment in part, and dissenting in part: 

I believe that Children’s Health Defense (“CHD”) has 

shown that it could plausibly allege a First Amendment 

claim for injunctive relief against Defendant Meta Platforms 

Inc. (“Meta”),1 and I therefore respectfully dissent from the 

majority’s contrary conclusion. However, I agree that all of 

CHD’s other claims were properly dismissed, and I therefore 

concur in the judgment as to those remaining claims and in 

Parts III, IV, and V of the majority opinion. 

I 

A 

Before sketching the facts that I take as true for purposes 

of this appeal, I first address an important threshold question 

concerning what factual allegations we may properly 

consider. 

Because this appeal arises from a district court order 

granting a motion to dismiss for failure to state a claim, we 

must take the well-pleaded allegations of the operative 

1 Meta was known as “Facebook, Inc.” until October 2021. For 

convenience, I will refer to it consistently as “Meta,” even with respect 

to events before that date.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 41

complaint as true and draw all reasonable inferences in favor 

of CHD. Shields v. Credit One Bank, N.A., 32 F.4th 1218, 

1220 (9th Cir. 2022). We must “likewise take as true for 

purposes of this appeal the additional well-pleaded 

contentions” contained in any materials that were submitted 

to the district court as reflecting the substance of a proposed 

amendment to the complaint. Broidy Cap. Mgmt., LLC v. 

State of Qatar, 982 F.3d 582, 586 (9th Cir. 2020). 

However, CHD has also submitted certain additional 

materials for the first time in this court, and the parties 

sharply disagree as to whether, and to what extent, we may 

consider these materials in assessing the legal sufficiency of 

CHD’s claims. Under the unique circumstances of this case, 

I agree with CHD that we should take judicial notice of the 

existence of certain new, highly relevant documents that 

have only recently become available and that, like the 

materials submitted by CHD to the district court, effectively 

reflect specific additional factual allegations that CHD 

proposes to plead if it is given leave to amend on a remand. 

I recognize that, on appeal from the dismissal of a 

complaint, a plaintiff generally cannot suggest new grounds 

for amending the complaint for the first time in this court. 

See, e.g., Riggs v. Prober & Raphael, 681 F.3d 1097, 1104 

(9th Cir. 2012). However, CHD does not purport to add 

wholly new legal theories or claims, but rather only 

additional factual allegations in support of its existing 

claims. Moreover, its newly suggested amendments are 

limited to factual allegations based on documents that were 

concededly unavailable to CHD at the time of the district 

court proceedings and that have only become subsequently 

available through compulsory processes employed in other 

litigation or in legislative investigations or through Freedom 

of Information Act requests. We can take judicial notice of 
42 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

the limited fact that these documents exist and have become 

available to CHD during the course of this appeal. See Lee 

v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). 

While their contents cannot be judicially noticed for their 

truth, see id., CHD may properly draw on them in sketching 

the additional factual allegations that it could now make if it 

is given leave to amend. 

I disagree with Meta’s suggestion that this court’s only 

procedurally proper option is to order a limited remand to 

the district court so that that court can first consider the 

wholly legal question of the viability of CHD’s claims in 

light of these new potential allegations, after which we 

would then review the matter de novo. Cf. FED. R. CIV. P.

62.1; FED. R. APP. P. 12.1. While we could certainly insist 

that CHD proceed in that fashion, it is within our discretion, 

under these unique circumstances, to simply consider the 

legal sufficiency of such additional allegations ourselves in 

evaluating whether CHD can state a claim on which relief 

may be granted. The limited remand suggested by Meta here 

would be a pointless waste of time and judicial resources and 

would needlessly further postpone our obligation to decide 

the novel, difficult, and important legal questions raised by 

this appeal. In my view, given the weighty First Amendment 

interests at stake in this case and the considerable difficulties 

inherent in attempting to uncover facts concerning alleged 

behind-the-scenes interactions between Meta and 

Government personnel, we should exercise our discretion in 

favor of considering the significance of the additional 

allegations CHD could make in light of these newly 

available documents.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 43

B

With these principles in mind, I take the following 

factual contentions as true for purposes of this appeal from 

the district court’s order dismissing CHD’s claims at the 

pleadings stage.

1

CHD is a Georgia-based non-profit membership 

organization founded in 2015 by Robert F. Kennedy, Jr. 

(“Kennedy”), who remains its chairman. Its professed 

mission is “to educate the public about the risks and harmful 

effects of chemical exposures upon prenatal and children’s 

health, including from particular vaccines and 

environmental health hazards, such as 5G and wireless 

networks and products, and to advocate for social change 

both legislatively and through judicial action.” “CHD’s 

primary sources of revenue derive from membership dues 

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

on its Facebook page.” 

With respect to vaccines, “CHD advocates for open and 

honest public debate on the efficacy and safety of the . . . 

entire Child and Adolescent Immunization Schedule” of the 

Centers for Disease Control and Prevention (“CDC”). CHD 

is sharply critical of the CDC’s vaccine policies, stating on 

its website that “the CDC has become a mouthpiece for [the 

pharmaceutical] industry and has protected the ‘all vaccines 

for all children’ policy despite peer-reviewed science to the 

contrary.” Indeed, CHD argues that the CDC has become so 

plagued by conflicts of interest that the subject of “vaccine 

safety should be taken from the CDC” altogether. CHD’s 

website contains links to numerous articles concerning 

vaccines and other topics, including both advocacy pieces 
44 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

and scientific studies from “peer-reviewed, published 

journals.” 

Meta is a California-based corporation that operates, 

among other things, two large social media platforms, 

namely, Facebook and Instagram. According to the 

operative complaint, Facebook has “214 million users in the 

United States and 2.2 billion worldwide.” Mark Zuckerberg 

is Meta’s co-founder and its chairman, CEO, and controlling 

shareholder. As relevant here, Facebook enables users to 

create webpages on which they can share information, 

engage in advocacy, and solicit donations. Facebook users 

can also choose to “follow” other users’ Facebook pages that 

are of interest to them. In November 2017, CHD agreed to 

Facebook’s terms of service and created its own Facebook 

page. By late 2020, CHD’s Facebook page, which it used to 

promote its views on vaccines and other matters, had more 

than 122,000 followers.

2

CHD alleges that, even before the Covid pandemic and 

the development of Covid vaccines, CHD’s general 

advocacy concerning vaccine safety drew the attention of 

Government officials, who sought to pressure Meta to delete, 

or at least to reduce the visibility of, what those officials 

contended was “vaccine misinformation.” In particular, 

CHD points to a February 14, 2019 letter from Congressman 

Adam Schiff to Meta asking it to identify what measures it 

currently took to address “misinformation related to 

vaccines on [its] platforms” and “encourag[ing] [it] to 

consider what additional steps [it] can take to address this 

growing problem.” CHD alleges that, while ostensibly a 

strictly informational inquiry, Congressman Schiff’s letter 

must be understood against a larger backdrop in which 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 45

various legislators, through hearings and public statements, 

sought to pressure social media companies to delete or 

restrict a variety of different categories of disfavored 

content. CHD points, in particular, to April 2019 public 

remarks by House Speaker Nancy Pelosi in which she raised 

the possibility of removing the immunity for hosting thirdparty content that is granted to social media platforms by 

§ 230 of the Communications Act of 1934.2 In those 

remarks, the Speaker noted that, when the subject of § 230 

is raised with social media companies, “you really get their 

attention,” and she stated that it was “not out of the question” 

that § 230’s immunity “could be removed” by Congress. As 

she explained, “for the privilege of 230, there has to be a 

bigger sense of responsibility” on the part of social media 

companies.

Three weeks after Congressman Schiff’s letter, Meta 

announced it was taking a variety of steps to reduce the 

visibility of “misinformation about vaccinations.” On April 

26, 2019, Meta also announced that it would remove 

“fundraising tools” from “Pages that spread misinformation 

about vaccinations on Facebook.” In accordance with that 

policy, Meta deactivated the fundraising function on CHD’s 

Facebook page six days later. Around the same time, Meta 

“permanently disabled the ‘dispute’ function on CHD’s 

account so that neither CHD” nor Kennedy “could 

challenge,” “through direct submission,” Meta’s actions 

against CHD. Although CHD and Kennedy, of course, could 

still send “written requests” to Meta objecting to its actions, 

Meta consistently “ignored” these requests. Meta also took 

2 I discuss in detail below the nature of this immunity and the critical 

practical role it plays in making possible the sorts of gigantic platforms 

operated by Meta. See infra section III.
46 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

steps to block the posting of some vaccine-related content, 

including on CHD’s Facebook page. For example, on June 

9, 2019, Meta blocked CHD from displaying, on its 

Facebook page, a videotape of an interview in which 

Kennedy “discuss[ed] a pending lawsuit against Merck & 

Co.” concerning its Gardasil vaccine. On September 4, 

2019, Meta also added warnings directly onto CHD’s 

Facebook page, stating that “[t]his Page posts about 

vaccines” and that those who want “reliable, up-to-date 

information” about vaccines should “[g]o to CDC.gov,” the 

webpage of the CDC.

3

After the growing Covid pandemic resulted in 

widespread lockdowns and societal disruption beginning in 

March 2020, many public officials began to express a 

focused concern over Covid-related “misinformation” on 

social media. For example, in early June 2020, the House 

Speaker sharply criticized social media platforms for failing 

to halt the spread of “COVID-19 disinformation.” Later that 

month, two subcommittees of the House Committee on 

Energy and Commerce held a joint hearing on 

“Disinformation Online.” In his opening remarks, the 

chairman of one subcommittee stated that social media 

platforms had “become awash in disinformation,” including 

“lies about COVID 19.” He stated that the “status quo is 

unacceptable,” and that, “[w]hile Section 230 has long 

provided online companies the flexibility and liability 

protections they need to innovate and to connect people from 

around the world, it has become clear that reform is 

necessary if we want to stem the tide of disinformation 

rolling over our country.” The chair of the other 

subcommittee stated, in her opening remarks, that “Section 

230” had come to effectively “protect[] business models that 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 47

generate profits off scams [and] fake news”; that this was 

“never the intent” of Congress; that, “since both courts and 

industry refuse to change, Congress must act”; and that she 

“look[ed] forward to working with [her] colleagues to 

modernize Section 230.”

In September 2020, Zuckerberg stated in an interview 

that Meta was actively working with the CDC and the World 

Health Organization (“WHO”) “to remove clear 

misinformation about health-related issues that could cause 

an imminent risk of harm.” In October 2020, Zuckerberg 

and the then-CEOs of Twitter, Inc. and Alphabet Inc. (which 

operates the various Google products) were subpoenaed to 

testify at an October 28 hearing of the Senate Commerce 

Committee entitled, “Does Section 230’s Sweeping 

Immunity Enable Big Tech Bad Behavior?”

In early 2021, as Covid vaccines were first becoming 

widely available, various Executive Branch officials took 

steps to address a specific concern about what they 

considered to be “misinformation” about these new Covid 

vaccines, as well as about Covid more generally. These 

officials included Robert Flaherty, Deputy Assistant to the 

President and White House Director of Digital Strategy, and 

Andrew Slavitt, who served as a White House Senior 

Advisor for the COVID-19 Response. Shortly after joining 

the new Administration, Flaherty reached out to Meta to 

inquire about its policies concerning Covid-related 

information on its platforms. On February 9, 2021, Meta 

responded by email to Flaherty with its “responses to [his] 

initial questions.” In response to Flaherty’s specific inquiry 

as to how Meta handled Covid-related claims “that are 

dubious, but not provably false,” Meta stated that, while its 

practice was to “remove claims public health authorities tell 

us have been debunked or are unsupported by evidence,” it 
48 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

also took measures to limit the distribution of content that 

“contributes to unfounded hesitancy towards the COVID-19 

vaccine,” even if such content “does not qualify for removal” 

(emphasis added). Meta also stated that, where information 

did warrant removal under its policies, “multiple violations” 

would lead to restrictions on the relevant Facebook account, 

including “suspend[ing] the entire Page, Group, or account.” 

The email assured Flaherty that Meta “will begin enforcing 

this policy immediately.” The next day, February 10, Meta 

took down Kennedy’s Instagram account.

In a March 21, 2021 email to Slavitt, Meta confirmed 

that it would make a specific named employee “available on 

a regular basis” to interface with the White House, noting 

that the employee had already “been coordinating the 

product work that matters most to your teams.” In that same 

email, Meta confirmed that, in response to Slavitt’s prior 

inquiry about the available “levers for reducing virality of 

vaccine hesitancy content,” Meta would make “additional 

changes that were approved late last week and that [it would] 

be implementing over the coming weeks.” These included 

“reducing the virality of content discouraging vaccines that 

does not contain actionable misinformation” and removing 

“Groups, Pages, and Accounts” that posted vaccine-related 

content that, while truthful, was “sensationalized.”

Four days later, two subcommittees of the House Energy 

and Commerce Committee again held a joint hearing on 

“disinformation” on social media platforms, and Zuckerberg 

and the CEOs of Alphabet and Twitter all testified at this 

hearing. In his opening remarks, one of the subcommittee 

chairs stated that he was concerned about, among other 

things, “antivaxxers, COVID deniers, QAnon supporters, 

and Flat earthers.” Disinformation Nation: Social Media’s 

Role in Promoting Extremism and Misinformation, Virtual 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 49

Joint Hearing Before the Subcomm. on Commc’ns & Tech. 

& the Subcomm. on Consumer Prot. & Com. of the H. 

Comm. on Energy & Com., 117th Cong., SERIAL NO. 117-

19, at 2 (Mar. 25, 2021). The chairman of the full committee, 

in his opening statement, stated that “it is now painfully clear 

that neither the market nor public pressure will force these 

social media companies to take the aggressive action they 

need to take to eliminate disinformation and extremism from 

their platforms” and that “therefore, it is time for Congress 

and this committee to legislate and realign these companies’ 

incentives.” Id. at 12.

On April 13, 2021, Meta emailed Flaherty and Courtney 

Rowe, another White House official, to follow up 

concerning various questions they had raised about Meta’s 

treatment of posts that might promote vaccine hesitancy. 

Attached to this email were “Vaccine Hesitancy Examples,” 

including one specifically from CHD’s Facebook page. The 

email defined “vaccine hesitancy” content as including, inter 

alia, truthful content that “discuss[es] the choice to vaccinate 

in terms of personal and civil liberties or concerns related to 

mistrust in institutions or individuals.” Meta explained that 

it “utilize[s] a spectrum of levers for this kind of content,” 

including “reducing the posts’ distribution, not suggesting 

the posts to users, [and] limiting their discoverability in 

Search.” 

On May 6, 2021, Flaherty emailed Meta to complain 

about the inadequacy of Meta’s efforts to demote truthful 

vaccine-hesitant content. He specifically complained that 

Meta’s vaccine hesitancy policy was not “stopping the 

disinfo dozen”—a group of 12 individuals, including 

Kennedy, who were identified as spreading Covid 

“misinformation” online. On May 12, Flaherty followed up 

and complained that, as compared with other social media 
50 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

platforms, he thought that Meta was doing an inadequate job 

in downgrading “anti-vaccine” content. He elaborated:

But “removing bad information from search” 

is one of the easy, low-bar things you guys do 

to make people like me think you’re taking 

action. If you’re not getting that right, it 

raises even more questions about the higher 

bar stuff. . . .

Youtube, for their warts, has done pretty well 

at promoting authoritative info in search 

results while keeping the bad stuff off of 

those surfaces. Pinterest doesn’t even show 

you any results other than official 

information when you search for “vaccines.” 

I don’t know why you guys can’t figure this 

out.

Meta’s interactions with the Government extended 

beyond the White House. In particular, on June 1, 2021, 

Meta emailed the CDC, explaining that it had established a 

“misinfo claims portal” in which selected CDC personnel 

who had been “whitelisted” for access to the portal could 

submit requests to have particular posts taken down from 

Facebook. The cover email explained that Meta wanted to 

ensure that “everyone who had been whitelisted” had “all the 

info they need to start submitting claims.” The email 

included an attached file explaining, in a set of slides, how 

the “Facebook Content Request System: Government 

Reporting System” worked. An authorized CDC employee 

would use the designated URL for accessing the system—

www.facebook.com/xtakedowns/login—and then enter his 

or her credentials. Once the user was logged into the system, 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 51

he or she could select from a menu of pre-programmed 

reasons for requesting removal of the offending content, 

such as “Covid Misinformation,” “Vaccine 

Discouragement,” and “Covid Vaccine Misinformation.” 

After selecting from among these options, the user would be 

directed to submit “the relevant violating URLs” that the 

user wanted taken down, up to a maximum of 20 in a single 

report. After submitting the request, the user would receive 

a confirmation email with a reference number to allow for 

tracking and follow-up.

On July 15, 2021, Surgeon General Vivek Murthy and 

White House Press Secretary Jen Psaki appeared at a joint 

press briefing concerning the Government’s response to 

Covid. Among other things, Surgeon General Murthy asked 

social media companies “to consistently take action against 

misinformation super-spreaders on their platforms.” In an 

apparent specific reference to the so-called disinformation 

dozen—which specifically includes Kennedy—Psaki 

referred to “12 people who are producing 65 percent of antivaccine misinformation on social media platforms.” In an 

apparent reference to Kennedy—who had been banned from 

Meta’s Instagram platform—Psaki noted that these 12 

“remain[ed] active on Facebook, despite some even being 

banned on other platforms” that “Facebook owns.”

The next day, July 16, Meta employees had a call with 

the Surgeon General’s office to discuss Meta’s actions 

against “health misinformation.” During the call, Meta 

specifically touted its earlier enforcement against Kennedy, 

claiming that, after he was banned from Instagram, “[h]e 

then stopped posting on [Facebook] about vaccines at all.”

One week later, on July 23, Meta sent an email to various 

persons in the Department of Health and Human Services 
52 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

(“HHS”), following up on a meeting with them earlier that 

day to “take stock after the past week.” In particular, the 

email summarized “steps taken to further address the 

‘disinfo dozen,’” including removing 17 additional “Pages, 

Groups, and [Instagram] accounts tied to the disinfo dozen,” 

with the result that “every member of the disinfo dozen . . . 

had at least one such entity removed.” Meta reiterated that 

it had heard HHS’s “call for us to do more,” and it said that 

it would reach out “to schedule the deeper dive on how to 

best measure Covid related content.” Meta underscored that 

it and HHS had “a strong shared interest to work together” 

and that it would “strive to do all [it] can to meet our shared 

goals.”

On August 6, 2021, Meta employees stated, in an internal 

email, that Meta was moving forward with a number of 

recommendations for dealing with posts with Covid-related 

“misinfo” or posts that were “misinfo adjacent.” The first, 

listed as “Option 1a”, was to remove “assets linked to 

Groups / Pages / Profiles / Accounts that have been removed 

for COVID misinfo violations” from users’ 

recommendations. As an example, Meta stated “RFK Jr.’s 

[Instagram] Account is removed, so his [Facebook] Page 

will be non-recommendable.” This option was 

recommended as a “stop-gap measure specifically targeting 

Disinfo Dozen assets.”

On August 17, 2022, Meta ultimately removed CHD

from its Facebook and Instagram platforms entirely.

C

CHD filed this action in August 2020. On December 4, 

2020, CHD filed its second amended complaint, alleging 

violations of the First and Fifth Amendments, along with 

violations of the Racketeer Influenced and Corrupt 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 53

Organizations Act (“RICO”) and the Lanham Act. The 

complaint named as Defendants Meta, Zuckerberg, and two 

of Meta’s so-called “fact-checking” organizations, Science 

Feedback and the Poynter Institute for Media Studies, Inc. 

(“Poynter Institute”). Seeking declaratory, injunctive, and 

monetary relief, CHD alleged, inter alia, that Defendants 

were either working in concert with, or under compulsion 

from, the Federal Government to suppress CHD’s speech on 

Meta’s platforms and to prevent CHD from fundraising on 

those platforms. 

On June 29, 2021, the district court dismissed the 

operative complaint, and the court entered final judgment the 

next day. The district court dismissed Science Feedback 

without prejudice for lack of service, and it dismissed the 

remaining Defendants with prejudice for failure to state a 

claim upon which relief may be granted. See FED. R. CIV. P.

12(b)(6). With respect to CHD’s constitutional claims, the 

district court held that CHD had failed to allege sufficient 

facts to raise a plausible inference that Meta or Zuckerberg 

had “worked in concert with the CDC to censor CHD’s 

speech, retaliate against CHD, or otherwise violate CHD’s 

constitutional rights,” nor had CHD “alleged facts showing 

government coercion sufficient to deem [Meta] or 

Zuckerberg a federal actor.” Absent state action, the district 

court held, any constitutional claims necessarily failed. The 

district court dismissed the remaining claims in the case on 

a variety of other grounds.

CHD timely appealed the district court’s dismissal of its 

suit. We have jurisdiction under 28 U.S.C. § 1291.

II

I agree that CHD cannot assert a Bivens claim against 

Defendants for monetary damages based on alleged 
54 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

violations of its First Amendment rights. See Egbert v. 

Boule, 596 U.S. 482, 498–99 (2022) (generally declining to 

extend a Bivens remedy “to alleged First Amendment 

violations”). But as we have recognized, claims for 

injunctive and declaratory relief, unlike claims for damages, 

do not rely on the Bivens cause of action. See Ministerio 

Roca Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 

2016) (“The only remedy available in a Bivens action is an 

award for monetary damages from defendants in their 

individual capacities.” (citation omitted)). Rather, “[t]he 

ability to sue to enjoin unconstitutional actions by state and 

federal officers is the creation of courts of equity, and 

reflects a long history of judicial review of illegal executive 

action, tracing back to England.” Armstrong v. Exceptional 

Child Ctr., Inc., 575 U.S. 320, 327 (2015). Indeed, in 

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), 

the Supreme Court declined to recognize a Bivens remedy 

against “a private corporation operating a halfway house 

under contract with the Bureau of Prisons,” but it then went 

on to note that “suits in federal court for injunctive relief” 

remained available, because “injunctive relief has long been 

recognized as the proper means for preventing entities”—

presumably including private parties that qualify as state 

actors—“from acting unconstitutionally.” Id. at 63, 74; see 

also Lima v. U.S. Dep’t of Educ., 947 F.3d 1122, 1127–28 & 

n.6 (9th Cir. 2020) (rejecting, based on Malesko, a Bivens

damages claim against the private corporate defendant, but 

then rejecting on the merits the plaintiff’s claim for equitable 

relief against that defendant as an alleged state actor acting 

unconstitutionally).

Of the various grounds for dismissal given by the district 

court, the only one that would support rejecting CHD’s claim 

for injunctive and declaratory relief concerning alleged First 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 55

Amendment violations is the district court’s conclusion that 

Meta and Zuckerberg were not state actors for purposes of 

the First Amendment.3 As the Supreme Court has squarely 

held, the First Amendment’s “Free Speech Clause prohibits 

only governmental abridgment of speech” and “does not 

prohibit private abridgment of speech.” Manhattan Cmty. 

Access Corp. v. Halleck, 587 U.S. 802, 808 (2019). To 

qualify as a constitutional violation, therefore, a particular 

deprivation of a constitutional right must be “fairly 

attributable to the State.” Lugar v. Edmondson Oil Co., 457 

U.S. 922, 937 (1982); see also Lindke v. Freed, 601 U.S. 

187, 198 (2024). The Court has articulated a number of 

alternative formulas under which conduct may be fairly 

attributable to the state, with the details of those various tests 

reflecting the relevant features of some of the distinct 

specific contexts in which the state-action question has often 

arisen. See Lugar, 457 U.S. at 938–39 (noting, for example, 

the “public function test,” the “state compulsion test,” the 

“nexus test,” and the “joint action test” (citations and internal 

quotation marks omitted)). The ultimate inquiry, however, 

remains whether the challenged acts are “attributable to the 

State” in the sense that they are “traceable to the State’s 

power or authority.” Lindke, 601 U.S. at 198. 

3 The district court dismissed the claims against Poynter solely on the 

ground that it (like Meta) was a private corporation that, under Malesko, 

could not be sued in a Bivens action. The district court also recognized, 

however, that CHD’s allegations against Poynter were very limited and 

that most of the challenged conduct was allegedly committed by Meta. 

Against this backdrop, I think it is fair to say that the logic of the district 

court’s no-state-action ruling as to Meta and Zuckerberg would 

necessarily extend to Poynter as well, even if the district court does not 

itself appear explicitly to have made this point.
56 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

Because—as the variety of alternative formulas 

underscores—the state-action inquiry often depends upon 

specific features of the context at issue, I think it is important 

to begin by first setting out in some detail the unique legal 

context that provides the backdrop for this case. Although 

the majority deems the entirety of a massive platform such 

as Facebook as being in all respects the equivalent to a big 

newspaper, see Opin. at 22, the analogy is not entirely apt. 

As I shall explain in Section III, Meta’s truly gargantuan 

platforms simply could not exist in anything resembling their 

current form without the legal immunity that the Federal 

Government has afforded to internet platforms under § 230 

of the Communications Act of 1934, as added by the 

Communications Decency Act of 1996. Thereafter, in 

Section IV, I will explain how that context-specific feature 

factors into the overall question of whether, on the specific 

facts at issue here, CHD can adequately plead the requisite 

state action. 

III

Meta is in the business of transmitting, on a vast scale, 

the publicly available speech of others, primarily through its 

Facebook and Instagram platforms. As quickly became 

apparent in the early days of the internet, operating any such 

open platform for the speech of third parties presents very 

substantial liability risks that, if the platform became large 

enough, would be practically impossible to manage or to 

effectively mitigate. Congress’s solution was § 230, which 

we have construed to provide broad immunity to internet 

platforms hosting third-party speech. 

A

In assigning liability for transmitting defamatory 

communications, the common law generally distinguishes 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 57

among different classes of persons based on their role in 

creating, or their knowledge of, the contents of those 

communications. The greatest level of responsibility applies 

to the “composer or original publisher of a defamatory 

statement, such as the author, printer or publishing house,” 

because that person “usually knows or can find out whether 

a statement in a work produced by him is defamatory or 

capable of a defamatory import.” RESTATEMENT (SECOND)

OF TORTS § 581 cmt. c. A lesser degree of responsibility is 

applied to those, such as newsstands, bookstores, and 

libraries, who are in the business of distributing large 

volumes of expressive content prepared exclusively by third 

parties. Because such persons cannot be expected to screen 

in advance the content of every book, periodical, and article 

they distribute, the common law assigns them liability for 

defamation only if “there are special circumstances that 

should warn the dealer that a particular publication is 

defamatory.” Id. cmt. d. But no liability for defamation is 

assigned to a person or entity, such a “telephone company,” 

that “merely makes available to another equipment or 

facilities that he may use himself for general communication 

purposes.” Id. cmt. b. These three categories of persons 

have sometimes been respectively referred to as 

“publishers,” “distributors,” and “conduits,” see, e.g., Austin 

v. CrystalTech Web Hosting, 125 P.3d 389, 392 (Ariz. Ct. 

App. 2005); Eugene Volokh, Treating Social Media Like 

Common Carriers?, 1 J. OF FREE SPEECH L. 377, 455 (2021), 

and I will use that same shorthand here. 

Meta and others operating social media platforms do not 

fit neatly into this taxonomy. Although in one sense they 

merely provide “equipment or facilities” that third parties 

may use “for general communication purposes,” the 

facilities at issue here voluntarily disseminate those 
58 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

communications in many cases to the world at large. 

Because Meta knows, or can readily know, the content of 

those communications, and is under no legal obligation to 

transmit them, it cannot be classified as a mere conduit. Cf. 

RESTATEMENT (SECOND) OF TORTS § 581 cmt. f (stating that 

a person or entity (such as a telegraph company) that 

provides communication-specific assistance in transmitting 

a particular statement whose contents are known or 

accessible to it may be liable for defamation if “he knows or 

has reason to know that the message is libelous”); see also 

id. § 612 (providing, however, a limited privilege that further 

limits liability for such transmitters). 

In many senses, Meta most resembles a distributor, 

because it transmits a truly enormous volume of third-party 

content that could not feasibly be reviewed in advance and 

that it plays no role in creating. But, as this case illustrates, 

Meta (like many other platform operators) also manages the 

content on its websites in ways that arguably go beyond that 

of a traditional distributor, such as a bookstore or newsstand, 

and that begin to resemble the actions of a publisher. It is 

perhaps therefore unsurprising that, even in the early days of 

the internet, at least one court concluded that a company 

operating a “computer bulletin board” could be classified as 

a “publisher,” rather than a “distributor,” if it “h[o]ld[s] itself 

out to the public and its members as controlling the content” 

of that platform and “implement[s] this control through [an] 

automatic software screening program” or through 

“Guidelines” that it uses to remove content. Stratton 

Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at 

*1, 4 (N.Y. Sup. Ct. May 24, 1995). By opting for the 

“benefits” of this heightened degree of “editorial control,” 

Stratton Oakmont held, the platform at issue there “ha[d] 

opened it up to a greater liability” than a mere distributor. 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 59

Id. at *5. Such a rule, of course, would likely spell the end 

of the internet as we know it: for a variety of reasons, 

virtually no one operating (or using) a platform would want 

there to be no controls over what content may be posted, but 

under Stratton Oakmont, the use of such controls could result 

in crushing publisher-level liability for all third-party 

content on the platform. 

B

Congress promptly acted to resolve this problem by 

adding a new § 230 to the Communications Act of 1934, 

which has been classified as § 230 of the unenacted title 47 

of the United States Code.4 Section 230 accomplishes that 

goal by first establishing certain rules limiting internet 

platforms’ liability for posting or removing third-party 

content and then expressly preempting any contrary state or 

local law. See 47 U.S.C. § 230(e)(3) (“No cause of action 

may be brought and no liability may be imposed under any 

State or local law that is inconsistent with this section.”). 

4 Although we have frequently referred to the statute as “Section 230 of 

the Communications Decency Act,” Enigma Software Grp. USA, LLC v. 

Malwarebytes, Inc., 69 F.4th 665, 670 (9th Cir. 2023); see also Fair 

Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 

F.3d 1157, 1161 (9th Cir. 2008) (en banc), that is a misnomer. Title V 

of the Telecommunications Act of 1996 is captioned as the 

“Communications Decency Act of 1996,” see Pub. L. No. 104-104, 

§ 501, 110 Stat. 56, 133 (1996), and § 509 of that title added § 230 to the 

Communications Act of 1934, which has been classified to the unenacted 

47 U.S.C. § 230. See id. § 509, 110 Stat. at 137. The statute can thus 

properly be referred to either as § 230 of the Communications Act of 

1934 or as § 230 of Title 47, but not as § 230 of the Communications 

Decency Act.
60 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

Section 230’s general rules for limiting liability are 

contained in subsection (c), which provides as follows:

(c) Protection for “Good Samaritan” 

Blocking and Screening of Offensive 

Material

(1) Treatment of Publisher or Speaker

No provider or user of an interactive 

computer service shall be treated as the 

publisher or speaker of any information 

provided by another information 

content provider.

(2) Civil Liability

No provider or user of an interactive 

computer service shall be held liable on 

account of—

(A) any action voluntarily taken in 

good faith to restrict access to or 

availability of material that the 

provider or user considers to be 

obscene, lewd, lascivious, filthy, 

excessively violent, harassing, or 

otherwise objectionable, whether or 

not such material is constitutionally 

protected; or

(B) any action taken to enable or 

make available to information content 

providers or others the technical 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 61

means to restrict access to material 

described in paragraph [(A)].5

47 U.S.C. § 230(c).6 

Section 230(c)(1) squarely rejects Stratton Oakmont by 

flatly providing that no “interactive computer service shall 

be treated as the publisher or speaker” of third-party content 

that it hosts or transmits. 47 U.S.C. § 230(c)(1); see also id. 

§ 230(f)(2) (broadly defining an “interactive computer 

service” as “any information service, system, or access 

software provider that provides or enables computer access 

by multiple users to a computer server”). By its terms, this 

categorical rule applies regardless of whether the platform 

uses the sort of controls to screen and remove content that 

were at issue in Stratton Oakmont. But to be sure that 

platforms would have the ability, inter alia, to use “blocking 

and filtering technologies that empower parents to restrict 

their children’s access to objectionable or inappropriate 

online material,” id. § 230(b)(4) (declaring the statute’s 

“policy”), § 230 goes further and prohibits platforms from 

being held liable “on account of . . . any action voluntarily 

taken in good faith to restrict access to or availability of 

material that the provider or user considers to be obscene, 

lewd, lascivious, filthy, excessively violent, harassing, or 

5 The statute actually says “paragraph (1),” but that is obviously a 

scrivener’s error. See U.S. Nat. Bank of Oregon v. Independent Ins. 

Agents of Am., Inc., 508 U.S. 439, 462 (1993).

6 In its current form, the statute carves out certain specified exceptions 

from its limitation on civil liability, such as for conduct that violates “any 

law pertaining to intellectual property” or that violates certain sextrafficking laws. See 47 U.S.C. § 230(e)(2), (5)(A).
62 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

otherwise objectionable, whether or not such material is 

constitutionally protected.” Id. § 230(c)(2)(A).

This court has construed the resulting immunity 

conferred by § 230 very broadly. We have held that 

subsection (c)(1)’s rule that a platform operator shall not be 

“treated as the publisher or speaker of any information 

provided” by a third party does not merely prohibit the sort 

of publisher-liability that was at issue in Stratton Oakmont. 

See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1104 (9th Cir. 

2009) (expressly rejecting the argument that, “because 

Congress enacted section 230 to overrule Stratton Oakmont, 

which held an internet service provider liable as a primary 

publisher, not a distributor, the statute does no more than 

overrule that decision’s application of publisher liability” 

and that § 230 therefore leaves distributor liability intact). 

Rather, we have held, § 230(c)(1) broadly “precludes courts 

from treating internet service providers as publishers not just 

for the purposes of defamation law, with its particular 

distinction between primary and secondary publishers, but 

in general.” Id. As we explained:

[W]hat matters is not the name of the cause 

of action—defamation versus negligence 

versus intentional infliction of emotional 

distress—what matters is whether the cause 

of action inherently requires the court to treat 

the defendant as the “publisher or speaker” of 

content provided by another. To put it 

another way, courts must ask whether the 

duty that the plaintiff alleges the defendant 

violated derives from the defendant’s status 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 63

or conduct as a “publisher or speaker.” If it 

does, section 230(c)(1) precludes liability.

Id. at 1101–02. 

Under this reading of § 230, we held that a plaintiff’s 

cause of action impermissibly treats an internet service 

provider as the “publisher or speaker” of third-party content 

if it necessarily rests on a duty concerning “reviewing, 

editing, [or] deciding whether to publish or to withdraw from 

publication third-party content.” Barnes, 570 F.3d at 1102. 

As noted above, the paradigmatic example of “a cause of 

action that treats a website proprietor as a publisher” within 

the meaning of § 230 “is a defamation action founded on the 

[proprietor’s] hosting of defamatory third-party content,” 

Doe v. Internet Brands, Inc., 824 F.3d 846, 851 (9th Cir. 

2016), including hosting undertaken as a traditional 

“publisher” or as a “distributor,” Barnes, 570 F.3d at 1104. 

But under the analysis we adopted in Barnes, § 230(c)(1)’s 

immunity also extends to any duty that “would necessarily 

require an internet company to monitor third-party content,” 

HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 

682 (9th Cir. 2019) (emphasis added), or to remove such 

content, Barnes, 570 F.3d at 1103. As we stated in Barnes, 

“removing content is something publishers do, and to 

impose liability on the basis of such conduct necessarily 

involves treating the liable party as a publisher of the content 

it failed to remove.” Id. “Subsection (c)(1), by itself, shields 

from liability all publication decisions, whether to edit, to 

remove, or to post, with respect to content generated entirely 

by third parties.” Id. at 1105 (emphasis added).

Barnes rejected the argument that, by construing 

subsection (c)(1)’s immunity as extending to actions 

concerning the monitoring and removal of content, we had 
64 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

rendered superfluous the distinct immunity set forth in 

subsection (c)(2), which directly concerns potential liability 

for “restrict[ing] access to or availability of material.” 47 

U.S.C. § 230(c)(2); see Barnes, 570 F.3d at 1105. We 

explained that, unlike the immunity granted by § 230(c)(1), 

the further immunity conferred by § 230(c)(2) would apply 

to content that was partly created by the internet provider 

itself and to access restrictions that went beyond what could 

fairly be characterized as “publishing or speaking.” Barnes, 

570 F.3d at 1105. 

Our broad construction of § 230 has been subject to 

substantial criticism in a number of specific respects, but I 

am bound by our settled precedent, and I do not question it 

here. Moreover, regardless of any criticisms about the 

precise scope of that immunity, the central point, for present 

purposes, remains indisputable: § 230 confers a statutory 

immunity without which Meta could not practicably operate 

gigantic platforms such as Facebook and Instagram. The 

potential liability for defamatory content alone—not to 

mention other theories of platform host liability—would be 

so crushing as to preclude the operation of these platforms 

in anything resembling their current form. And, importantly, 

the immunity granted by § 230 is purely an act of 

congressional grace, because Meta has no plausible claim to 

a constitutional entitlement to full immunity for publishing 

or distributing constitutionally unprotected defamatory 

content. Cf. Woodhull Freedom Found. v. United States, 72 

F.4th 1286, 1299 (D.C. Cir. 2023) (holding that Congress’s 

denial of § 230 immunity to internet-provider conduct that 

amounts to aiding and abetting sex trafficking is not 

overbroad or facially unconstitutional).

In this respect, Meta’s position stands in sharp contrast 

to that of a traditional publisher, such as a newspaper. A 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 65

newspaper publisher’s editorial decisions over the thirdparty content published in that paper are not broadly 

immunized by statute from constitutionally permissible 

liability. And because newspaper editors must, as a 

consequence, consider the potential liability associated with 

each third-party piece they publish, they necessarily limit 

and individually select the third-party speech that they are 

willing to include. In the absence of § 230’s immunity, Meta 

would have to take comparable steps to manage and limit the 

enormous potential liability that could arise from its 

platforms’ hosting of third-party speech by behaving more 

like a traditional newspaper. (At the very least, it would have 

to behave more like a traditional newsstand or bookstore, if 

one assumes, contrary to Stratton Oakmont, that the use of 

algorithmic tools and of other content-management 

measures is consistent with being a mere distributor rather 

than a publisher.) But in all events, in a world without § 230, 

Meta would almost certainly have to substantially reduce the 

massive scale of its third-party content hosting; it would 

presumably be much more pro-active than it already is about 

screening out content; and it would be much more selective 

about who it lets use its platforms and under what conditions. 

But with § 230’s singular and broad immunity in place, Meta 

is freed up to exercise practical—and potentially arbitrary—

control over the hosted content of the speech of more than 

100 million people in the United States alone. In effect, by 

virtue of the special treatment afforded under § 230 to its 

massive platforms, Meta has been given the immunity of a 

conduit for the billions of postings that (in conduit-like 

fashion) it hosts, but that conduit-type immunity is coupled 

with what, in many respects, is functionally the editorial 

power of a publisher over everything on the platform.
66 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

The truly gigantic scale of Meta’s platforms, and the 

enormous power that Meta thereby exercises over the speech 

of others, are thus direct consequences of, and critically 

dependent upon, the distinctive immunity reflected in § 230. 

That is, because such massive third-party-speech platforms 

could not operate on such a scale in the absence of something 

like § 230, the very ability of Meta to exercise such 

unrestrained power to censor the speech of so many tens of 

millions of other people exists only by virtue of the 

legislative grace reflected in § 230’s broad immunity. 

Moreover, as the above discussion makes clear, it was 

Congress’s declared purpose, in conferring such immunity, 

to allow platform operators to exercise this sort of wide 

discretion about what speech to allow and what to remove. 

In this respect, the immunity granted by § 230 differs 

critically from other government-enabled benefits, such as 

the limited liability associated with the corporate form. The 

generic benefits of incorporation are available to all for 

nearly every kind of substantive endeavor, and the limitation 

of liability associated with incorporation thus constitutes a 

form of generally applicable non-speech regulation. In sharp 

contrast, both in its purpose and in its effect, § 230’s 

immunity is entirely a speech-related benefit—it is, by its 

very design, an immunity created precisely to give its 

beneficiaries the practical ability to censor the speech of 

large numbers of other persons.7 Against this backdrop, 

7 The majority suggests that if § 230 were “enough for state action, every 

large government contractor would be a state actor.” Opin. at 27. 

However, as I shall explain below, I do not contend that § 230 alone 

suffices to establish state action here. See infra at 85. But the majority 

is also wrong in suggesting that the Government-conferred benefit here 

is comparable to the others that it cites. Companies that are dependent 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 67

whenever Meta selectively censors the speech of third 

parties on its massive platforms, it is quite literally 

exercising a government-conferred special power over the 

speech of millions of others. The same simply cannot be 

said of newspapers making decisions about what stories to 

run or bookstores choosing what books to carry.

I do not suggest that there is anything inappropriate in 

Meta’s having taken advantage of § 230’s immunity in 

building its mega-platforms. On the contrary, the fact that it 

and other companies have built such widely accessible 

platforms has created unprecedented practical opportunities 

for ordinary individuals to share their ideas with the world at 

large. That is, in a sense, exactly what § 230 aimed to 

accomplish, and in that particular respect the statute has been 

a success. But it is important to keep in mind that the vast 

practical power that Meta exercises over the speech of 

millions of others ultimately rests on a government-granted 

privilege to which Meta is not constitutionally entitled.

IV

In my view, this key fact—viz., that Meta is effectively 

exercising a distinctive government-conferred power over 

others’ speech when it decides whether and how to censor 

third-party speech on its vast platforms—makes a crucial 

difference in the state-action analysis. As I shall explain, the 

particular state-action test that is most relevant here is the 

one applied in Skinner v. Railway Labor Executives Ass’n, 

489 U.S. 602 (1989). As relevant here, Skinner establishes 

that, where a private party exercises a distinctive 

on a “favorable regulatory environment” or on significant Government 

contracts do not rely on a speech-related benefit that was purposely 

created to facilitate the suppression of third parties’ speech.
68 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

government-conferred immunized power that is specifically 

targeted at particular rights of third parties, and those 

particular rights are ones that are protected from 

governmental infringement by the Constitution, then that 

private party’s interactions with the Government as to how 

to exercise that power over those third parties’ constitutional 

rights implicate constitutional standards and must comply 

with those standards. And under that analysis, CHD can 

adequately plead state action here.

A

Skinner involved two sets of regulations that were 

adopted to address the serious safety concerns presented by 

intoxicated railroad workers. 489 U.S. at 608–09. The first 

set, contained in “Subpart C” of the applicable regulations, 

imposed mandatory drug testing on employees involved in 

specified types of train accidents. Id. at 609. The second 

set, in “Subpart D,” created a “permissive” regime of drug 

testing that was available against persons who were not 

covered by the mandatory provisions of Subpart C. Id. at 

611 (emphasis added). Specifically, Subpart D authorized 

railroads to require drug testing of (1) an employee as to 

whom one or two supervisors had a “reasonable suspicion” 

that the employee was under the influence; or (2) an 

employee as to whom a supervisor had a reasonable 

suspicion that the employee contributed to an accident’s 

“occurrence or severity.” Id. Various organizations 

representing railroad workers challenged these regulations 

as a violation of the Fourth Amendment. Id. at 612. The 

district court rejected these challenges, but we reversed. Id. 

We concluded that, with the exception of the portion of 

Subpart D that authorized drug tests upon reasonable 

suspicion of impairment, the regulations did not require the 

“showing of individualized suspicion” that we held was 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 69

“essential” to conducting such a search under the Fourth 

Amendment. Id. at 613. The Supreme Court then reversed 

our judgment to the extent that it had invalidated Subpart D.

At the outset, the Court had to address the threshold 

question whether drug tests conducted under these 

regulations implicated the protections of the Fourth 

Amendment. As the Court explained, “the Fourth 

Amendment does not apply to a search or seizure, even an 

arbitrary one, effected by a private party on his own 

initiative,” but “the Amendment protects against such 

intrusions if the private party acted as an instrument or agent 

of the Government.” Skinner, 489 U.S. at 614. In applying 

this overall standard, the Court first noted that the answer 

was easy as to the mandatory testing requirements in Subpart 

C: “A railroad that complies with the provisions of Subpart 

C of the regulations does so by compulsion of sovereign 

authority, and the lawfulness of its acts is controlled by the 

Fourth Amendment.” Id. By contrast, the state-action issue 

with respect to Subpart D required a more extensive analysis.

As an initial matter, the Court explicitly rejected the 

defendants’ argument that “the Fourth Amendment is not 

implicated by Subpart D of the regulations, as nothing in 

Subpart D compels any testing by private railroads.” 489 

U.S. at 614 (emphasis added). As the Court explained, “[t]he 

fact that the Government has not compelled a private party 

to perform a search does not, by itself, establish that the 

search is a private one.” Id. at 615. Even in the absence of 

compulsion, a private party might be “deemed an agent or 

instrument of the Government for Fourth Amendment 

purposes” if the “degree of the Government’s participation 

in the private party’s activities” was sufficient, “in light of 

all the circumstances,” to trigger the Constitution’s 

protections. Id. at 614–15. 
70 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

In concluding that “tests conducted by private railroads 

in reliance on Subpart D” should not be viewed as being 

“primarily the result of private initiative,” the Court 

emphasized several considerations. First, the regulations in 

Subpart D broadly preempted “state laws, rules, or 

regulations covering the same subject matter,” including 

rights recognized in collective bargaining agreements. 489 

U.S. at 615. Indeed, the regulations specifically stated that 

railroads could “not bargain away the authority to perform 

tests granted by Subpart D.” Id. By these measures, “[t]he 

Government ha[d] removed all legal barriers to the testing 

authorized by Subpart D.” Id. Second, the regulations gave 

the Government “the right to receive certain biological 

samples and test results procured by railroads pursuant to 

Subpart D.” Id. The Government had thereby “made plain 

not only its strong preference for testing, but also its desire 

to share the fruits of such intrusions.” Id. Third, the regime 

created by Subpart D was compulsive vis-à-vis the 

employee: “a covered employee” was not “free to decline his 

employer’s request to submit to breath or urine tests under 

the conditions set forth in Subpart D.” Id. These three 

considerations—the Government’s conferral of a special 

private power against others that was broadly immunized; 

the Government’s interest in, and benefit from, the exercise 

of that power; and the compulsive nature of that power when 

wielded against other private parties—led the Court to 

conclude that a railroad’s invocation of that power against 

its employees was sufficiently done with “the Government’s 

encouragement, endorsement, and participation” to 

“implicate the Fourth Amendment.” Id. at 615–16. 

Having found that the Fourth Amendment applied to 

searches conducted under Subpart D, the Court then 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 71

concluded that the regulations did not violate the Fourth 

Amendment. Id. at 633–34.

B

Consideration of the same key three factors discussed in 

Skinner strongly supports the view that Meta’s alleged 

interactions with the Government here are sufficient to 

implicate the First Amendment rights of CHD and those it 

represents, including Kennedy. 

As I have explained, Meta here was not simply 

exercising the normal editorial control that goes with being 

an ordinary publisher who sifts through pre-publication 

submissions and affirmatively decides what to include in its 

publication. There are many such websites, and their 

exercise of such conventional editorial judgment and 

responsibility means that, from a practical point of view, 

their very ability to exist and to operate does not depend

upon § 230’s grace (even if they are a beneficiary of it). By 

contrast, Meta’s construction of massive and widely 

available platforms for the hosting of the speech of 

enormous numbers of third parties necessarily means that 

those platforms exist and operate only by virtue of the 

immunity conferred by § 230. Thus, the authority to manage 

content on such mega-platforms is, in a very real sense, a 

government-conferred power, and the Government, through 

its broad preemption of “state laws, rules, or regulations 

covering the same subject matter,” has intentionally 

“removed all legal barriers” to Meta’s exercise of that power 

over the speech of others. Skinner, 489 U.S. at 615. And, as 

in Skinner, that government-conferred power is one that, by 

its very design, is specifically directed at third-party rights 

that are protected under the Constitution from encroachment 

by the Government. In that sense, the immunized power 
72 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

conferred is not akin, for example, to the generic benefits of 

the liability limitations of the corporate form. Section 230, 

by its structure and design, grants an immunized power 

specifically directed at censoring the speech of others.8

Moreover, Meta’s exercise of that power is clearly 

coercive from the point of view of the third parties whose 

speech is targeted. Like the railway employees in Skinner, 

they are not “free to decline” to have their speech removed 

from the platform if Meta chooses to do so. Skinner, 489 

U.S. at 615. 

The central question, then, is whether Skinner’s last 

remaining factor—namely, governmental interest in, and 

direct benefit from, specific exercises of that power—is 

satisfied here. In addressing this factor, I think it is 

important to note a critical difference between this case and 

Skinner. In Skinner, the Government’s interest in, and 

benefit from, the testing power conferred in Subpart D was 

built into the regulations themselves, because those 

regulations expressly gave the Government the right to 

obtain certain results of those tests. Id. The same cannot be 

said of the regime created by § 230, which provides for no 

formal governmental role in the exercise of the powers that 

it makes possible. Accordingly, unlike in Skinner, this 

important state-action factor is not automatically satisfied 

simply by virtue of the structure of the legal regime that the 

Government has created. On that basis, the district court 

8 Meta is therefore wrong in suggesting that this case does not involve 

the “exercise of some right or privilege created by the State.” O’Handley 

v. Weber, 62 F.4th 1145, 1156 (9th Cir. 2023) (stating that a threshold 

question in the state-action inquiry is “whether the alleged constitutional 

violation was caused by the ‘exercise of some right or privilege created 

by the State or by a rule of conduct imposed by the State or by a person 

for whom the State is responsible’” (citing Lugar, 457 U.S. at 937)).
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 73

below distinguished Skinner and held that it did not support 

a finding of state action here. The majority relies on similar 

reasoning, noting that § 230 neutrally protects whatever 

editorial decisions Meta makes with respect to third-party 

speech on its platforms. See Opin. at 29. But this reasoning 

overlooks the possibility that, even though a governmental 

benefit is not directly built into § 230’s legal regime, the 

same relevant sort of governmental interest and benefit may 

be supplied with respect to particular communications and 

speakers by virtue of specific interactions between Meta and 

the Government concerning such communications or 

speakers. In view of the factual contentions summarized 

earlier, that line has plainly been crossed here. In particular, 

three distinct types of specific alleged interactions between 

Meta and the Government, taken together, strongly confirm 

the Government’s interest in, and benefit from, many of the 

particular challenged exercises of that power. Skinner, 489 

U.S. at 615. 

First, the above-described allegations confirm that highlevel Government officials made targeted requests, both 

publicly and privately, for Meta to take action specifically 

against the speech of CHD and Kennedy. In a private email, 

Flaherty pointedly complained that Meta was not doing 

enough to “stop[] the disinfo dozen,” which was a clear 

reference to CHD and Kennedy. Psaki and Murthy likewise 

publicly called for Meta and other platforms to target the 

same “12 people who are producing 65 percent of antivaccine misinformation.” In its private reassurances to 

White House and other Executive Branch officials, Meta 

repeatedly and specifically touted the targeted actions it had 

taken against CHD and Kennedy. For example, in an email 

to Flaherty, Meta attached a CHD Facebook post as an 

example of the sort of truthful “vaccine hesitan[t]” speech 
74 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

that it was targeting, just as it knew Flaherty wanted it to do. 

The day after Murthy’s and Psaki’s press conference, Meta 

followed up with Murthy’s office and, during that 

conversation, specifically noted its targeted actions against 

Kennedy’s vaccine-related speech. The following week, it 

again emphasized, in discussions with HHS, the additional 

steps it was taking against “the disinfo dozen.” On this 

record, the Government expressed its specific interest in 

suppressing particular speech of particular speakers—

including CHD and Kennedy—and Meta responded by 

underscoring the steps it had taken, and planned to take, to 

accomplish just that. 

Second, under the allegations here, Meta worked 

extensively with Executive Branch officials to adjust and 

refine its criteria and practices with respect to limiting or 

suppressing vaccine-related speech. These were not simply 

informational exchanges in which Meta passed along its 

internal criteria for addressing such speech. Rather, Meta 

engaged in a dialogue with Executive Branch officials to 

develop and “begin enforcing” new policies with respect to 

Covid-vaccine-related speech. In particular, there was 

extensive discussion with Government officials about what 

“levers” to exercise against truthful “vaccine hesitancy 

content.” And the Government was hardly a passive 

participant in these discussions. On the contrary, Flaherty 

and others repeatedly chastised Meta for not doing enough 

to suppress anti-vaccine content, unfavorably comparing 

Meta to other social media companies and underscoring the 

importance of Meta “mak[ing] people like me think you’re 

taking action.” The allegations here raise a plausible 

inference that Meta responded to such jawboning with 

appeasing efforts at modifying its policies and practices with 

respect to such speech. 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 75

Third, Meta went so far as to create an actual portal in 

which pre-selected Government officials could log in and 

then submit targeted requests for specific Covid-vaccinerelated posts to be taken down. On its face, this system 

extended to truthful speech that the “whitelisted” 

Government officials nonetheless deemed to promote 

“Vaccine Discouragement.”

It is also important to note that all of these actions took 

place against a backdrop of continuous legislative threats, at 

multiple levels, to limit or abolish the § 230 immunity upon 

which Meta’s very ability to operate its mega-platforms 

critically depends. These included congressional hearings in 

both houses, at which Zuckerberg and other social media 

CEOs were called to testify, as well as statements from highranking officials including the House Speaker and relevant 

committee chairs in both houses. Although, by 

constitutional design, the legislative process is cumbersome, 

and legislative threats are therefore harder to carry out than 

others, the Speaker trenchantly observed that, when 

legislators raise the subject of § 230 reform with social 

media companies, “you really get their attention.” While I 

agree that these various legislative comments and actions, 

taken in isolation, do not themselves constitute 

governmental compulsion of action under the traditional 

“‘state compulsion’ test,” Lugar, 457 U.S. at 939; cf. 

Kennedy v. Warren, 66 F.4th 1199, 1207–12 (9th Cir. 2023), 

that is not dispositive. The Supreme Court held that state 

action was present in Skinner even though compulsion was 

concededly absent in that case. See Skinner, 489 U.S. at 615 

(finding state action even while agreeing that the 

governmental regulations in Subpart D did not “compel[] a 

private party to perform a search”). And these frequent and 

high-level threats are certainly relevant in considering 
76 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

whether, “in light of all the circumstances,” Meta’s 

challenged actions here “are attributable to the Government 

or its agents” under Skinner’s standards. Id. at 614 (citation 

omitted). 

Taking these considerations together, the Government 

“made plain” its “strong preference” for particular exercises 

of Meta’s § 230-immunized power over third-party speech 

on its mega-platforms. Skinner, 489 U.S. at 615. The 

Government directly communicated to Meta its specific 

interest in Meta acting to limit or remove (1) content that 

expressed particular Government-disfavored viewpoints on 

a specific subject (viz., vaccines in general and the Covid 

vaccines in particular), and (2) the speech of CHD and 

Kennedy on that subject in particular. With awareness of 

that focused interest, and of the benefits that the Government 

hoped to obtain if such speech were suppressed, Meta then 

affirmatively worked with the Government to refine Meta’s 

policies and practices concerning such speech in a way that 

would be satisfactory to the Government, and it repeatedly 

touted to the Government its specific actions directly 

targeted against CHD and Kennedy. On these situationspecific facts, I think that Skinner’s last remaining factor—a 

governmental interest in, and benefit from, particular 

exercises of the immunized power—is satisfied here.9 

Accordingly, I would hold that, considered “in light of 

all the circumstances,” Meta’s interactions with the 

Government with respect to the suppression of specific 

categories of vaccine-related speech, and in particular the 

9 A different and much more difficult state-action question would be 

presented if Meta had refrained from such affirmative interactions with 

the Government and instead was merely the passive recipient of criticism 

or haranguing from Government officials.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 77

speech of CHD and Kennedy, “suffice to implicate the 

[First] Amendment.” Skinner, 489 U.S. at 614, 616 (citation 

omitted). Moreover, that conclusion makes perfect sense 

when viewed from the converse perspective of what the 

Government must not do when it interacts with such megaplatforms. Having specifically and purposefully created an 

immunized power for mega-platform operators to freely 

censor the speech of millions of persons on those platforms, 

the Government is perhaps unsurprisingly tempted to then

try to influence particular uses of such dangerous levers 

against protected speech expressing viewpoints the 

Government does not like. The Skinner-based analysis set 

forth above properly recognizes that, when the Government 

does so, and the platform operator responds 

accommodatingly, the First Amendment is implicated. 

Whether First Amendment standards have been violated was 

not reached by the district court and therefore is not squarely 

before us.10 

Because I think that CHD could amend its complaint in 

a manner that states a cause of action for injunctive and 

declaratory relief based on the theory that Meta’s abovedescribed interactions with the Government implicate the 

First Amendment rights of CHD, Kennedy, and CHD’s other 

members, I would reverse the district court’s judgment in 

favor of Meta to the extent it held to the contrary.11 Because, 

10 As I note below, however, CHD’s allegations raise a plausible 

inference that the Government sought to restrict CHD’s protected speech 

for the illegitimate purpose of suppressing disfavored speech that 

interfered with its policy objectives. See infra at 87.

11 For many of the same reasons discussed above, CHD is clearly able to 

plead sufficient facts to assert Article III standing to seek injunctive and 
78 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

however, CHD’s showing on this score extends only to Meta 

and not to Zuckerberg personally or to the Poynter Institute, 

I would affirm the dismissal of the direct injunctive claims 

declaratory relief against Meta. See Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560–61 (1992) (noting that, at the pleading stage, the plaintiff 

may rely on “mere allegations” to establish the core elements of 

standing, which are (1) an injury in fact (2) that is fairly traceable to the 

defendant’s challenged conduct and (3) that would be redressed by the 

requested relief); cf. Murthy v. Missouri, 144 S. Ct. 1972, 1986 (2024) 

(holding that, at the preliminary injunction stage, where “the parties have 

taken discovery,” the plaintiff “must instead point to factual evidence”). 

CHD has properly rested its standing both on injuries to itself and 

injuries to members that it represents (such as Kennedy). See Hunt v. 

Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). In 

contrast to Murthy, CHD has identified specific alleged instances in 

which Government interaction with Meta led to “discrete instance[s]” of 

censorship of CHD’s and Kennedy’s content. See Murthy, 144 S. Ct. at 

1987. In February 2021, Meta responded to Slavitt’s inquiry about 

restrictions on vaccine-hesitant content by stating that it would “begin 

enforcing” a new “policy” on that score, and it then proceeded to take 

down Kennedy’s Instagram account the very next day. Two months 

later, Meta expressly reassured White House officials about the steps it 

was taking against vaccine-hesitant content, and it specifically attached, 

as an example, a post from CHD’s Facebook page. A month later, a 

White House official complained that Meta was still not doing enough 

to stop the vaccine-hesitant speech of the “disinfo dozen,” which 

included Kennedy. Murthy and Psaki then singled out the same dozen 

speakers, and Kennedy in particular, in their July 2021 press conference. 

That was followed by Meta informing HHS officials, a week later, that 

it had taken specific action against each one of the “disinfo dozen,” 

including Kennedy, and thereafter Meta continued evaluating additional 

restrictions on Kennedy. And because, in contrast to Murthy, CHD seeks 

to enjoin the platform operator directly, it has “satisf[ied] traceability” 

by alleging that Meta continues to exclude CHD’s and Kennedy’s posts 

“under a policy that it adopted at the White House’s behest,” and an 

injunction directed at Meta will redress that injury. See Murthy, 144 

S. Ct. 1996–97 & n.11.
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 79

against those two defendants.12 Of course, to the extent that 

CHD were to establish an ultimate entitlement to injunctive 

relief, Zuckerberg, the Poynter Institute, and others working 

in concert with Meta might nonetheless be incidentally 

covered by an injunction against Meta. And I would affirm, 

under Egbert, CHD’s First-Amendment-based Bivens claim 

for monetary damages.

C

None of the additional contentions raised by the majority 

or by Defendants supports a contrary view with respect to 

the state-action issue. 

Defendants rely heavily on our decision in O’Handley v. 

Weber, 62 F.4th 1145 (9th Cir. 2023), in which we held that 

state action was not present when a state election official 

submitted a request to Twitter to remove a particular post 

questioning the integrity of California’s elections. Id. at 

1154, 1160–61. But O’Handley was not presented with, and 

did not consider, the points addressed here about the 

significance of § 230 immunity under Skinner. Indeed, 

O’Handley never even cited either § 230 or Skinner. As 

such, O’Handley is distinguishable and not controlling here. 

See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 

170 (2004) (“Questions which merely lurk in the record, 

neither brought to the attention of the court nor ruled upon, 

are not to be considered as having been so decided as to 

constitute precedents.” (citation omitted)); Guerrero v. RJM 

Acquisitions LLC, 499 F.3d 926, 938 (9th Cir. 2007) 

(holding that “unstated assumptions on non-litigated issues 

12 I would likewise affirm the dismissal of CHD’s claim under the 

Takings Clause. CHD has made no comparable showing of state action 

with respect to its assertion that the disabling of its donate button on its 

Facebook page was somehow a violation of the Takings Clause.
80 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

are not precedential holdings binding future decisions” 

(citation omitted)).

The majority concludes that the overall facts alleged here 

do not plausibly reflect the sort of compulsion that the 

caselaw typically requires to establish state action under the 

state compulsion test. See Opin. at 22–27; cf. Bantam Books, 

Inc. v. Sullivan, 372 U.S. 58, 68 (1963) (holding that actions 

of Rhode Island state commission, which “exhort[ed] 

booksellers” not to carry disfavored non-obscene titles, 

violated the First Amendment where the commission’s 

communications were “phrased virtually as orders,” were 

“invariably followed up by police visitations,” and led 

distributor to acquiesce in a manner that the lower courts 

found “was not voluntary”). I am not entirely sure whether 

the majority is correct on this point, but I need not decide the 

issue, because it is ultimately irrelevant. As noted earlier, 

Skinnersquarely held that state action was present there even 

in the absence of state compulsion. 489 U.S. at 615. And 

for the reasons that I have explained, the same is true here.13

13 Although I thus do not reach the question of whether compulsion has 

been shown here, I note parenthetically that I am also not sure that the 

majority is correct in suggesting that, if compulsion had been 

established, Meta would not be a proper defendant for such a claim. See

Opin. at 23. It may perhaps be true that the government-compelled 

private party is not the proper defendant in a suit for damages or in a suit 

challenging “governmental compulsion in the form of a generally 

applicable law.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 

826, 841 (9th Cir. 1999). And I recognize that the distributor was not 

named as a defendant in the suit for injunctive relief in Bantam Books. 

See Bantam Books, 372 U.S. at 60–61 (describing procedural history); 

see also Bantam Books, Inc. v. Sullivan, 176 A.2d 393, 395 (R.I. 1961) 

(noting that “[t]he distributor did not object to the commission’s action 

and is not a party to the instant proceedings”). But I am not sure that the 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 81

Likewise, it does not matter whether the majority is 

correct in contending that the allegations here would not 

suffice to establish state action under the traditional “joint 

action test,” Lugar, 457 U.S. at 939. That test, according to 

the majority, requires a showing that Meta agreed to take a 

“specific action on the government’s say-so.” See Opin. at 

18 (emphasis added). Once again, the point is ultimately 

irrelevant. In Skinner, there was no such alleged agreement 

to violate any specific person’s “rights in particular,” see

Opin. at 16 (citation omitted), and yet the Court found that 

state action was present. At most, the majority has 

established that particular alternative formulations of the 

state-action test, which were developed with different 

contexts in mind, are ill-suited to the unique circumstances 

presented here. That calls, as in Skinner, for a more tailored 

inquiry into whether, in light of those unique circumstances, 

state action is nonetheless present. As in Skinner, it is 

present here.

The majority also raises a broader concern that a finding 

of state action here would interfere with Meta’s exercise of 

its own independent judgment over its platforms. Opin. at 

18–19. Given that Meta may happen to share the 

Government’s views that anti-vaccine speech and speakers 

should be limited or blocked on its platforms, the majority 

same conclusion follows if the compulsion test is applied in the unique 

context presented here, i.e., a suit for injunctive relief against a private 

party who, while exercising a government-granted ability to engage in 

mass censorship, is allegedly the subject of particularized coercive 

tactics from the Government. An injunction aimed at keeping the 

Government’s coercive efforts away from such dangerous levers might 

conceivably be addressed either to the target of those efforts (thus 

counteracting them) or to the Government (or both). But, like the 

majority, I need not ultimately decide this issue.
82 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

argues that Meta should not be disabled from implementing 

“those views simply because they happen to be shared by the 

government.” See Opin. at 22. According to the majority, 

“Meta has a First Amendment right” to censor any speech 

on its platform with which it disagrees, see Opin. at 22 

(emphasis added), and that it is solely up to Meta “to decide 

what, if any, limits should apply to speech on those 

platforms,” see Opin. at 31. Indeed, Meta contends—and the 

majority appears to agree—that, under the Supreme Court’s 

recent decision in Moody v. NetChoice, LLC, 144 S. Ct. 2383 

(2024), “all of the actions challenged here are protected 

under the First Amendment” (emphasis added). In light of 

these considerations, the majority suggests that the various 

state-action tests should be narrowly construed so as to 

preserve Meta’s asserted First-Amendment-based right to 

freely censor speech on its platform. These arguments rest, 

in my view, on an overstated view of Meta’s relevant First 

Amendment rights, which do not give Meta an unbounded 

freedom to work with the Government in suppressing speech 

on its platforms.

It may well be true that an ordinary publisher or 

distributor would have a First Amendment right to 

acquiesce, if persuaded, in governmental requests not to 

publish or distribute particular works or speakers. The Court 

in Bantam Books put loadbearing weight on the fact that the 

Rhode Island courts had specifically found that the 

distributor’s acquiescence in that case “was not voluntary.” 

372 U.S. at 68. It is therefore plausible to suppose that 

Bantam Books might have come out differently if the 

distributor had instead stated that it was persuaded by the 

state commission’s views concerning what materials were 

worth distributing and that, agreeing with those views, the 

distributor affirmatively did not wish to promote the 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 83

particular works at issue. Likewise, if a newspaper 

affirmatively chooses to be, in effect, a mouthpiece for a 

particular government or a particular official it supports, it 

may well have an absolute First Amendment right to do so. 

And to that extent, the majority would perhaps be correct in 

suggesting that a newspaper’s constitutional right to opt to 

kill whatever article it wants cannot be overcome by 

relabeling, as “joint action,” the newspaper’s discussions 

with government officials over whether to bury a story.

But it does not follow from any of this that Meta has the 

exact same scope of constitutional freedom with respect to 

the speech of others on its mega-platforms. As I have 

repeatedly explained, when it comes to the operation of the 

sort of platforms at issue here, Meta simply does not occupy 

the same position as a traditional newspaper publisher or a 

book distributor. Rather, because its ability to operate its 

massive platform rests dispositively on the immunity 

granted as a matter of legislative grace in § 230, Meta is a bit 

of a novel legal chimera: it has the immunity of a conduit 

with respect to third-party speech, based precisely on the 

overriding legal premise that it is not a publisher; its 

platforms’ massive scale and general availability to the 

public further make Meta resemble a conduit more than any 

sort of publisher; but Meta has, as a practical matter, a 

statutory freedom to suppress or delete any third-party 

speech while remaining liable only for its own affirmative 

speech. And, as the Supreme Court recently recognized, 

Meta is engaged in expressive activity protected by the First 

Amendment when it “curat[es]” Facebook’s “NewsFeed” in 

a way that “create[s] a distinctive expressive offering.” 

Moody, 144 S. Ct. at 2405. But I am aware of no historical 

precedent that meaningfully corresponds to such a hybrid 

entity, and I do not think we should simply assume that it has 
84 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

exactly the same constitutional rights with respect to thirdparty speech on its platforms as a newspaper publisher, a 

book distributor, or a parade organizer. Moody did not 

address the precise scope of Meta’s First Amendment rights 

over its platform, see id. at 2407 (finding it unnecessary to 

resolve what level of scrutiny applied to the restrictions at 

issue there), and Moody did not confront or decide any 

question as to whether Meta has an absolute constitutional 

right to coordinate with the Government to suppress thirdparty speech on its platforms.

We likewise need not, and should not, decide in this case 

exactly what degree of First Amendment protection, if any, 

Meta has with respect to working with the Government to 

censor particular viewpoints or speakers on its platforms. It 

suffices for purposes of this case to note that the megaplatforms at issue here differ from traditional publishers or 

distributors in a critical respect that is directly relevant to the 

state-action question and that, in my view, warrants a 

different result—and that does so regardless of Meta’s own 

invocation of the First Amendment. As I have explained, 

Meta would be better positioned to argue for the full 

constitutional freedom of a traditional publisher—including 

the freedom to agree to, and implement, the Government’s 

censorship preferences—if it operated its website in all 

respects like a traditional publisher by individually 

reviewing, selecting, and limiting exactly what third-party 

speech it will publish. In such a circumstance, it would 

happen to have § 230 immunity, but (as with a newspaper) 

that immunity would not be essential to its very existence or 

ability to operate its platforms. 

But in critical reliance on the Government’s creation of 

an immunized censorship power, Meta instead chose to scale 

up its operations in a way that has produced gigantic 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 85

platforms that comprise a unique assemblage of features that 

make it part conduit, part distributor, and part publisher. 

This central fact makes a difference. That is, I do not think 

that Meta’s critical reliance on the government-created

ability to engage in mass censorship is a factor that can 

properly be ignored either in the state-action inquiry or in 

assessing whether, like the above-described acquiescing 

newspaper publisher, Meta has, so to speak, a constitutional 

right to suppress third-party speech that the Government 

“persuades” it to censor. Although Meta’s operational 

reliance on § 230’s immunity is not alone enough to render 

Meta a state actor, that factor contributes positively towards 

a finding of state action when combined with other 

considerations. In particular, with this critical factor in 

place, if Meta then affirmatively engages with the 

Government as to how to exercise its government-granted 

authority in order to widely suppress particular subjects or 

speakers on its mega-platforms, that additional element 

suffices to cross over the state-action line and to implicate 

the First Amendment’s protections with respect to the 

targeted speakers. And for that reason, I perceive no basis 

for concluding that Meta, in operating such unprecedented 

legally-hybrid platforms, has any sort of supervening 

constitutional right to team up with the Government to 

suppress the speech of particular speakers, or on particular 

topics, on such immunized mega-platforms. 

The majority worries that treating Meta as a state actor 

here would contravene the underlying purpose of the stateaction doctrine, which is to “protect[] a robust sphere of 

individual liberty” within which private actors may operate. 

See Opin. at 12 (quoting Halleck, 587 U.S. at 808). But in 

this distinctive scenario, applying the state-action doctrine 

promotes individual liberty by keeping the Government’s 
86 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

hands away from the tempting levers of censorship on these 

vast platforms. To be sure, it means that Meta does not have 

the “liberty” to work together with the Government in 

deciding how to suppress the speech of millions of people, 

but Meta otherwise retains its full authority to operate its 

platform within the bounds of the law. A contrary rule 

would mean that the Government can create a special 

immunized power for private entities to suppress speech on 

a mass scale and then request and receive, from those private 

entities, an ability to influence the exercise of those levers of 

censorship. That would thwart the First Amendment’s core 

purpose to “prevent[] the government from tilting public 

debate in a preferred direction.” Moody, 144 S. Ct. at 2407 

(simplified).

The majority suggests that finding state action here 

would produce a parade of horribles, because it would 

supposedly hamper the Government’s ability to work with 

platform operators to restrict minors’ access to pornographic 

speech or to address other types of speech as to which the 

Government has legitimate concerns. See Opin. at 30–31. 

But saying that the First Amendment is implicated is not the 

same as saying that it is violated. Where the category of 

speech at issue is either unprotected (e.g., child pornography, 

fraudulent advertising) or is otherwise subject to legitimate 

direct regulation by the Government, see Reno v. ACLU, 521 

U.S. 844, 869 (1997) (reaffirming that the Government has 

“‘a compelling interest in protecting the physical and 

psychological well-being of minors’ which extend[s] to 

shielding them from indecent messages that are not obscene 

by adult standards” (citation omitted)), or where the 

Government’s interest involves, for example, malign foreign 

actors operating outside the United States, see Agency for 

Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc., 591 U.S. 
CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC. 87

430, 439 (2020) (holding that “foreign organizations 

operating abroad do not possess constitutional rights”), the 

Government may also properly seek to achieve its legitimate 

ends indirectly, through consultation with operators of 

mega-platforms. What allegedly occurred here, however, is 

quite different, because Meta and the Government worked 

cooperatively together to suppress the concededly truthful

speech of Americans concerning vaccines, and the 

Government sought to do so for the illegitimate purpose of 

dampening opposition to the Government’s preferred 

vaccine policies. See Rosenberger v. Rector & Visitors of 

Univ. of Va., 515 U.S. 819, 829 (1995) (“The government 

must abstain from regulating speech when the specific 

motivating ideology or the opinion or perspective of the 

speaker is the rationale for the restriction.”). Here, it is 

alleged, the Government worked with “private persons to 

accomplish what it is constitutionally forbidden to 

accomplish.” Norwood v. Harrison, 413 U.S. 455, 465 

(1973) (citation omitted); see also National Rifle Ass’n v. 

Vullo, 602 U.S. 175, 190 (2024) (stating that “a government 

official cannot do indirectly what she is barred from doing 

directly”).

V

I concur in the majority’s opinion to the extent that it 

upholds the district court’s dismissal of CHD’s Lanham Act 

claim, its RICO claim, and its claims against additional 

Defendant Science Feedback. For the reasons I have 

explained, I would affirm the dismissal of the Takings 

Clause claim; the dismissal of the First Amendment claims 

against Zuckerberg and the Poynter Institute; and the Bivens

First Amendment claim for monetary damages against Meta. 

But I would reverse as to CHD’s First Amendment claim for 
88 CHILDREN’S HEALTH DEF. V. META PLATFORMS, INC.

injunctive and declaratory relief against Meta, and to that 

extent, I respectfully dissent.