Mike Huckabee's False-Advertising-Related Case Against Meta Can Go Forward

From the June 23 decision in Huckabee v. Meta Platforms, Inc., by Third Circuit Judge Peter Phipps, joined by Judges Arianna Freeman and Emil Bove:

Mike Huckabee … is a Baptist minister, the former Governor of Arkansas, a two-time presidential candidate, a New York Times best-selling author, a nationally syndicated radio and television host, and the current United States Ambassador to Israel.

Between April and June 2024, his name, image, and likeness were used in three different advertisements to endorse cannabinoid, or 'CBD,' products on the Facebook social media platform …. One of the advertisements reported that Huckabee was leaving his then-job as a television show host on Trinity Broadcasting Network, a Christian-based television network, to "[p]ursue [a] [g]reater [p]urpose," which was the promotion of CBD products. In another advertisement, Huckabee appeared to "open[ ] up about his health problems and the miracle that helped him turn his life around," which was the use of CBD products.

Another advertisement contained a link, which if clicked, opened what appeared to be, but was not, the Fox News website. That linked webpage had an article with Huckabee's name, image, and likeness reporting that he was leaving his television show due to health issues from an autoimmune disease, and that "[a]s a God-fearing Christian," he recommended "CBD [as] the future of medicine in America," since it was "more effective than similar offerings from … 'Big Pharma' Companies." Each of the advertisements was made by a third party without Huckabee's permission, and Facebook was paid to feature those messages to its users.

The advertisements were a commercial success: after viewing them, "numerous fans" of Huckabee purchased the CBD products. Huckabee learned of the advertisements in or around May 2024, and Facebook removed them from its platform in June 2024. This was not Facebook's first experience with CBD advertisements that had misused the names, images, or likenesses of other public figures. It had previously hosted similarly unauthorized CBD advertisements depicting media personalities Laura Ingraham, Jeanine Pirro, and Sean Hannity, and news outlets reported on those instances.

Huckabee sued under Arkansas's Frank Broyles Publicity Rights Protection Act of 2016, which exempts social media platforms from liability so long as they lack "actual or constructive knowledge of the unauthorized commercial use of a person's name, image, or likeness." He pointed to these items as sufficient to allege a plausible claim of such knowledge:

• Meta sells advertisements;
• Meta allows advertisers to pay more to popularize those advertisements;
• Huckabee is a nationally recognized celebrity;
• Huckabee "has been a lifelong opponent of marijuana and its derivatives—i.e., CBD";
• Meta hosted inaccurate CBD advertisements with Huckabee's unauthorized name, image, or likeness;
• In one of those advertisements, Meta hosted a fake 'FoxNews.com' link;
• Meta approved the advertisements;
• Meta has approved CBD advertisements with fake endorsements from other media celebrities since at least 2021; and
• Meta's approval and maintenance of the Huckabee advertisements was with actual malice or, at least, with reckless disregard to their truthfulness or accuracy.

And the Third Circuit concluded that Huckabee indeed adequately alleged constructive knowledge:

As a baseline, the advertisements are premised on a development that Huckabee, a public figure and "lifelong opponent of marijuana and its derivatives—i.e., CBD," is now endorsing CBD products. While such a stark change of heart can be convincing, in the context of an advertisement, it also raises questions about the legitimacy of the changed position. Those doubts, by themselves, are not enough to infer that Meta had constructive knowledge of the misuse of Huckabee's name, image, or likeness.

The original complaint tries to bolster that inference by also alleging that Facebook previously hosted similar, fraudulent CBD advertisements using the name, image, and likeness of other media personalities, and that news outlets reported on those instances. That helps, but even the combined effect of those allegations does not cross the plausibility threshold.

Most critically, however, the original complaint states that one of the advertisements displayed on Facebook's platform linked to a website falsely purporting to be a Fox News article. That bogus link, when coupled with the unusual association of Huckabee and CBD and the prior fraudulent CBD advertisements on Facebook, suffices for allegations that Meta was plausibly "aware of facts or circumstances" from which the advertisements' misuse of Huckabee's name, image, or likeness was "apparent."

Note that Third Circuit precedent (Anderson v. Tiktok, Inc. (3d Cir. 2024)) takes the view that right of publicity claims are excluded from § 230 protection under that statute's exclusion for intellectual property claims, so that's likely why the court reached the Arkansas right of publicity claim.