The Volokh Conspiracy
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From Maffick LLC v. Facebook, Inc., decided yesterday by Judge James Donato (N.D. Cal.):
Plaintiff Maffick LLC seeks a temporary restraining order directing defendant Facebook, Inc., to take down a "Russia state-controlled media" label that Facebook posted on Maffick's "In the Now," "Waste-Ed" and "Soapbox" pages….
Maffick's TRO application also raises a concern about prior restraint. A court order that forbids speech activities, which is what Maffick seeks, is a "classic prior restraint of speech." "Prior restraints pose the 'most serious and the least tolerable infringement on First Amendment rights,'" and there is a "historical and heavy presumption against such restraints." …
Although Maffick asserted six causes of action against Facebook in its complaint, Dkt. No. 1, it seeks a TRO on just four of those claims: (1) libel under California Civil Code Section 45; (2) Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)(1)(A)); (3) the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200); and (4) interference with prospective economic advantage claim under California state law.
The merits inquiry is considerably streamlined by the fact that all four claims hinge on the proposition that the Russian media label is false. Consequently, to win a TRO, Maffick must demonstrate that it is likely to succeed in showing that the "Russia state-controlled media" label is false. It has not crossed that threshold.
Even assuming that the "Russia state-controlled media" label is a statement of fact—and not merely an opinion, as Facebook contends—the record before the Court establishes only that the question of falsity is disputed.
Facebook, on its part, has tendered a substantial amount of evidence in support of its view that Maffick is linked to the Russian government. For example, Facebook has established, without dispute by Maffick, that a prior entity, Maffick Media GmbH ("Maffick Media"), openly acknowledged significant ties to the Russian government. Maffick's Soapbox, Waste-Ed, and In the Now channels on Facebook are virtually identical to the same channels Maffick Media previously sponsored under the same names. Maffick still uses Maffick Media email addresses for these channels—"email@example.com" for In the Now; "firstname.lastname@example.org" for Waste-Ed; and "email@example.com" for Soapbox.
Maffick's current CEO, Anissa Naouai, expressly stated in a declaration accompanying the TRO application that she "owned a 49% interest" in Maffick Media, and that another "part-owner" was an entity known as Ruptly GmbH. Facebook submitted evidence that Ruptly is a subsidiary of RT (formerly Russia Today), which is "funded by the Russian government." A "2017 report from the U.S. Director of National Intelligence about Russia's meddling in the 2016 U.S. presidential election" stated that "RT is considered the 'Kremlin's principal international propaganda outlet.'"When Facebook temporarily suspended these pages in February 2019, "RT's editor-in-chief, Margarita Simonyan, tweeted…: 'Facebook has blocked our projects with billions of views!!!' "Naouai's reply declaration also states that while she is a United States citizen, she lived for years in Moscow, was employed by Russia Today, and hosted an opinion show for RT called "In the Now."
This is a considerable amount of evidence in Facebook's favor, and Maffick does not meaningfully contest it. Rather than challenging this evidence directly, Maffick relies almost entirely on declarations by Naouai, its CEO. For the most part, the declarations offer purely conclusory statements to the effect that Maffick is free and clear of Maffick Media and Russia. For example, Naouai avers that she "promptly formed a Delaware limited liability company called Maffick LLC" after moving to Los Angeles in June 2019. She states that while she "chose to continu[e] using the 'Maffick' name for the new LLC, Maffick LLC is not related to or associated with Maffick Media (or Ruptly)." Naouai also declares that "Maffick is not controlled operationally or editorially by the Russian government or by Russian state entities or officials," and further, "RT does not exercise control over me, nor does it exercise control over the content on Maffick's channels."
This evidence is little more than ipse dixit from a party-affiliated declarant. In effect, Maffick contends that it is likely to succeed on the merits because its CEO says so. That is far from enough to establish a likelihood of success on the merits, particularly in light of the largely undisputed counter-evidence Facebook tendered.
This is not to say that Facebook has proven truth as a defense, which it was not required to do in opposition to the TRO, or that Maffick has no hope of prevailing on any of its claims. It means only that Maffick has not carried its burden of demonstrating a probability of success on the merits that might justify the extraordinary relief of an injunction….
In light of this determination of the merits issue, the Court need not reach Facebook's argument that the Russian state media label is a non-actionable opinion. The Court also declines to formally rule on Facebook's defensive argument that the proposed injunction would be an unconstitutional prior restraint. The TRO application has been denied for more straightforward reasons, and so definitively deciding the constitutional question Facebook poses at this time is not absolutely necessary….
The balance of the equities tips in Facebook's favor, if anything. As the Ninth Circuit concluded in Garcia, the plaintiff's "thin copyright claim" did not outweigh the "historical and heavy presumption against" prior restraints. So too here, where Maffick asks to restrain Facebook's speech on uncompelling evidence of falsity. The Court also notes the public interest served by Facebook's notices to "help its users better understand the sources of news content they see on Facebook" which can help them "make informed decisions about what they are reading." The absence of proof that the balance of hardships tips sharply in Maffick's direction further underscores that an injunction is not warranted, particularly with respect to the "serious question" inquiry….