The Volokh Conspiracy
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From Judge Judith Rogers' opinion today in Ass'n of American Physicians & Surgeons, Inc. v. Schiff, joined by Judges Neomi Rao and Laurence Silberman:
The Association of American Physicians and Surgeons maintains a website and publishes the Journal of American Physicians and Surgeons, both of which host information concerning "important medical, economic, and legal issues about vaccines," According to the Association, its perspective on these issues should not be considered "anti-vaccine," but rather in favor of "informed consent based on disclosure of all relevant legal, medical, and economic information." Representative Adam B. Schiff is a Member of the House of Representatives from California's 28th Congressional District and Chairman of the House Intelligence Committee.
Joined by an individual, Katarina Verrelli, who has sought vaccine-related information online, the Association sued Representative Schiff, individually and as a Member of Congress, seeking damages as well as injunctive and declaratory relief. The Association and Verrelli alleged that Representative Schiff wrote letters on February 14, 2019, to Google and Facebook "encourag[ing] them to use their platforms to prevent what [Representative] Schiff asserted to be inaccurate information on vaccines." Shortly after, Representative Schiff wrote essentially the same letter to Amazon, and thereafter posted the letters on the House.gov website in a press release as well as on the social media website Twitter.
In the letters, as reproduced in the press release, Representative Schiff expressed concern about the danger of vaccine hesitancy and the prevalence of vaccine-related misinformation on internet platforms like YouTube, Facebook, and Google's search engine. He stated: "As a Member of Congress who is deeply concerned about declining vaccination rates around the nation, I am requesting additional information on the steps that you currently take to provide medically accurate information on vaccinations to your users, and to encourage you to consider additional steps you can take to address this growing problem." He requested that the companies respond to a list of questions regarding the companies' policies about and approaches to vaccine-related misinformation. [More factual details omitted here, because they are repeated below. -EV] …
The court concluded that plaintiffs lacked standing to sue Rep. Schiff, because they didn't plausibly allege enough evidence that the injury to them stemmed from his actions; here is part of the court's reasoning:
The Association complains of being "de-platform[ed]" and "disfavor[ed]" by the social media sites and search engines through which it promotes its vaccine-related information. But any actions limiting the accessibility of the Association's web content were not taken by Representative Schiff; instead, as the amended complaint acknowledges, they were taken by independent third parties Facebook, Google, Amazon, Twitter, and YouTube.
Nonetheless, appellants maintain that the companies' adverse action against the Association's content is ultimately attributable to Representative Schiff's statements, which they view to have implicitly threatened and coerced the technology companies. The amended complaint appears to allege a primary theory of causation based on two sets of statements by Representative Schiff.
First, Representative Schiff sent the information-gathering letters to several major technology companies, including Google, Facebook, and Amazon, and shared copies of those letters as well as the responses in press releases posted on the House.gov website and in social media posts.
Second, several months later, Representative Schiff made remarks at a hearing of the House Intelligence Committee, of which he is the chair, "challeng[ing] the immunity" that certain technology companies enjoy under the Communications Decency Act, According to appellants, the companies understood that Representative Schiff was threatening to support changes to Section 230 if the companies declined to comply with his "wishes on other fronts," including his concerns about "disfavored material on vaccinations on their platforms," and his statements intimidated and "coerce[d]" the companies "to censor content that he opposes."
Yet appellants' allegations have not presented a plausible account of causation. Even assuming the Association's content was indeed demoted in search results and on social media platforms, the technology companies may have taken those actions for any number of reasons unrelated to Representative Schiff. Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms.
The timeline of events in the amended complaint also undermines any possibility that the companies acted at Representative Schiff's behest in particular. For example, the amended complaint quotes Google's response to Representative Schiff's letter, which explained: "[W]e are and have been demonetizing anti-vaccination content under our longstanding harmful or dangerous advertising policy."
Likewise, the amended complaint itself acknowledges that several of the other adverse actions by the technology companies occurred before the June 2019 Intelligence Committee hearing. For example, Facebook announced its new policy of prioritizing government-sponsored vaccine information in search results in March 2019, and Twitter introduced its search-results disclaimer directing users to government-sponsored vaccine information in May 2019. Even assuming some of the policy changes to which appellants object were anticipatory in nature, the decisions by the companies seem to have occurred before Representative Schiff even sent the letters, and many took place before the hearing that purportedly coerced the companies to adopt Representative Schiff's preferences.
Generously construing the allegations of the amended complaint, the Association also appears to suggest that causation is satisfied because Representative Schiff coordinated the "drafting and timing" of the letters with the tech companies before releasing them, and that the letters were "a substantial factor motivating" the companies' "actions to suppress vaccine-related information."
But this is exactly the kind of allegation the Supreme Court rejected in Bell Atlantic Corp. v. Twombly (2007). After all, "a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality." As in Twombly, these allegations are "merely consistent with," but do not "plausibly suggest," the kind of coordinated action that would supply a causal link between Representative Schiff's statements and the technology companies' actions. Indeed, it is far less plausible that the companies' actions were a response to one legislator's inquiry than that they were a response to widespread societal concerns about online misinformation….