Rogalinski v. Meta Platforms, Inc.

• Court: District Court, N.D. California
• Decided: August 9, 2022
• Docket: 3:22-cv-02482
• Status: Unknown

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 RICHARD ROGALINSKI, Case No. 22-cv-02482-CRB

9 Plaintiff,

ORDER GRANTING MOTION TO 10 v. DISMISS

11 META PLATFORMS, INC., 12 Defendant.

13 Plaintiff Richard Rogalinski alleges that Defendant Meta Platforms, Inc. (“Meta”) 14 violated the First Amendment of the United States Constitution when it censoring his 15 Facebook posts about COVID-19. See Compl. (dkt. 1). Purporting to represent a class of 16 similarly situated Facebook users, Rogalinski alleges that Meta took this action in concert 17 with the Biden Administration. Meta moves to dismiss, arguing that Rogalinsky has not 18 pleaded state action. See MTD (dkt. 51). Finding oral argument unnecessary, the Court 19 GRANTS the motion and denies leave to amend. 20 I. BACKGROUND 21 A. Parties 22 Rogalinski is a resident of Florida. Compl. ¶ 28. 23 The putative class members are individuals whose comments about COVID-19 24 were allegedly censored by Meta beginning on January 20, 2021. Id. ¶ 29. Rogalinski 25 asserts that “[u]pon information and belief,” the putative class contains potentially millions 26 of members, but that only Meta knows the true number. Id. ¶ 61. 27 Meta is a corporation with its principal place of business in Menlo Park, California. 1 Facebook, Meta deploys tools and resources to moderate content on the platform. Id.; 2 Compl. ¶ 31. 3 B. Facts 4 1. Allegations Against Meta 5 Between April and June 2021, Meta appended warnings to or hid certain of 6 Rogalinski’s Facebook posts. Compl. ¶ 37. First, on or about April 6, 2021, Rogalinski 7 posted a message doubting the efficacy of masks: “Some of that science stuff laying out 8 how masks do nothing to prevent the spread of [COVID-19] and they’re actually harmful 9 to your health. Haven’t seen any of that science stuff saying otherwise. Just talking heads 10 who want to spread fear and control you.” Id. Meta responded by appending a warning to 11 the post that it was “missing context,” and providing a link to a site with additional 12 information. Id. Second, on May 6, 2021, Rogalinski posted another message critiquing 13 the COVID-19 vaccine rollout, which he implied was part of Bill Gates’ “depopulation 14 agenda,” and linking to an article by Fox News talk show host Tucker Carlson. Id.; Ex. C 15 (dkt. 1-3). Meta responded by appending the same missing context warning. Compl. ¶ 37. 16 Third, on June 13, 2021, Rogalinski posted a screenshot of a Tweet from a urologist 17 promoting hydroxychloroquine as a cure for COVID-19. Id. Meta again responded by 18 appending a warning to the post, this time labeling it as “false information” and hiding it 19 from public view. Id. 20 Although the complaint does not cite any other specific instances, Rogalinski 21 asserts generally that “[t]he COVID-19 statements [on Facebook] of Putative Members of 22 the Class were censored, or their statements made immediate subject of rebuke or discredit 23 from the Defendant at the behest of the federal government.” Id. ¶¶ 38–39. In his 24 opposition, Rogalinski asserts that that the administration “specifically acknowledge[d] 25 identifying at least 12 persons who are members of the described Class, which it targeted 26 for censorship.” Opp’n (dkt. 57) at 5. 27 2. Statements by Federal Officials 1 communion with, if not at the behest of efforts by the Executive Branch of the Federal 2 Government to restrict public statements and comments which clashed with the dogmatic 3 narrative adopted by the new administration and Facebook.” Id. ¶ 22. 4 At a press conference on July 15, 2021—after Meta took action against 5 Rogalinski’s posts—White House Press Secretary Jen Psaki responded to a question about 6 the administration’s “request for tech companies to be more aggressive in policing 7 misinformation” by stating: “we are in regular touch with these social media platforms,” 8 and “[w]e’re flagging problematic posts for Facebook that spread disinformation.” Id. 9 Psaki continued by outlining the administration’s four recommendations for social media 10 platforms: (1) measure and publicly share information on the impact of misinformation; (2) 11 create a robust enforcement strategy across platforms; (3) act faster to take down harmful 12 posts; and (4) promote quality information sources in their algorithms. Compl. Ex. A (dkt. 13 1-1) at 16–17. In support of cross-platform enforcement strategy proposal, Psaki noted 14 that “there’s about 12 people who are producing 65 percent of anti-vaccine misinformation 15 on social media platforms,” and that “[a]ll of them remain active on Facebook, despite 16 some even being banned on other platforms, including . . . ones that Facebook owns.” 17 Compl. Ex. A at 16. 18 C. Procedural History 19 On July 19, 2021, Rogalinski filed his complaint in the District Court for the Middle 20 District of Florida. Compl. After early delays due to confusion over Meta’s agent for 21 service, on February 10, 2022, Meta moved to dismiss the complaint or to transfer the case 22 to this district in light of the forum selection clause in Facebook’s Terms of Service. Mot. 23 to Dismiss or Transfer (dkt. 27). On April 22, the case was transferred to this district. 24 Order Granting Mot. To Transfer (dkt. 31). Meta now moves to dismiss, which Rogalinski 25 opposes. MTD; Opp’n. 26 II. LEGAL STANDARD 27 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint may be 1 12(b)(6). Rule 12(b)(6) applies when a complaint lacks either a “cognizable legal theory” 2 or “sufficient facts alleged” under such a theory. Godecke v. Kinetic Concepts, Inc., 937 3 F.3d 1201, 1208 (9th Cir. 2019). Whether a complaint contains sufficient factual 4 allegations depends on whether it pleads enough facts to “state a claim to relief that is 5 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 6 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff 7 pleads factual content that allows the court to draw the reasonable inference that the 8 defendant is liable for the misconduct alleged.” Id. at 678. When evaluating a motion to 9 dismiss, the Court “must presume all factual allegations of the complaint to be true and 10 draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los 11 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, it is “not bound to accept as true a 12 legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 13 (1986); Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 14 If a court dismisses a complaint for failure to state a claim, it should “freely give 15 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has 16 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the 17 part of the movant, repeated failure to cure deficiencies by amendment previously allowed, 18 undue prejudice to the opposing party by virtue of allowance of the amendment, [and] 19 futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 20 2008). 21 III. DISCUSSION 22 Meta moves to dismiss, arguing that Rogalinski has failed to plausibly allege that 23 Meta was a state actor. The Court agrees. 24 A. State Action 25 The Ninth Circuit recently reaffirmed that “a private entity hosting speech on the 26 Internet is not a state actor” subject to the Constitution. See Prager Univ. v. Google LLC, 27 951 F.3d 991, 995 (9th Cir. 2020) (“Despite YouTube’s ubiquity and its role as a public- 1 under the First Amendment.”). The Supreme Court explained that “merely hosting speech 2 by others is not a traditional, exclusive public function and does not alone transform 3 private entities into state actors subject to First Amendment constraints.” Manhattan 4 Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). 5 However, in rare cases, action by a private party can constitute state action. See 6 Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (noting 7 the four different tests that the Supreme Court has employed to determine if a private party 8 engaged in state action). Rogalinski argues that Facebook engaged in state action under 9 either of two theories: a “joint action” theory and a “nexus” theory. See Opp’n at 8–9. 10 1. Hart v. Facebook 11 Earlier this year, this Court heard Hart v. Facebook, in which the plaintiff also 12 alleged that Meta (then Facebook) violated his First Amendment rights by flagging posts 13 that allegedly contained COVID-19 misinformation. No. 22-CV-00737-CRB, 2022 WL 14 1427507 (N.D. Cal. May 5, 2022). Like Rogalinski, Hart relied on allegations about the 15 July 15 press conference to show state action. Hart pointed to Psaki’s statements, the 16 Surgeon General’s statements at the same press conference, and statements by President 17 Biden encouraging companies to combat disinformation. See id. at 3. 18 The Court rejected Hart’s arguments of joint action or government coercion and 19 dismissed the claims against Facebook. Id. at 11. The Court based its order on at least four 20 related but essentially independent grounds: (1) Facebook much more plausibly was 21 enforcing its own misinformation policy; (2) the government’s statements were phrased 22 only as vague recommendations; (3) the government’s supplying of information to 23 Facebook did not plausibly suggest involvement in Facebook’s decisions; and (4) there 24 was no indication of government involvement in action specifically toward Hart. Id. at 25 10–14. 26 Rogalinski acknowledges Hart but argues for a different outcome on two grounds. 27 See Opp’n at 4–8. First, Rogalinski contends that, while much of the censorship alleged 1 includes the twelve individuals she mentioned, who purportedly suffered censorship later. 2 Id. at 5. Second, Rogalinski seems to argue that the Court in Hart mistakenly conflated 3 Psaki’s four recommendations for social media platforms (which were “clearly 4 suggestions”) with her comment about flagging problematic posts (which were “not 5 merely advisory, but rather [was] taken in an effort to coerce compliance from the 6 defendant”). See id. at 5–6. 7 These distinctions fail. The twelve individuals Psaki mentioned are not relevant: 8 Rogalinski cannot assert their claims without having a claim of his own. See Sanford v. 9 MemberWorks, Inc., 625 F.3d 550, 560 (9th Cir. 2010) (“When a named plaintiff has no 10 cognizable claim for relief, she cannot represent others who may have such a claim.” 11 (cleaned up)). And even if those individuals were relevant, Psaki mentioned them only in 12 her discussion of the four recommendations that Rogalinski admits were “clearly 13 suggestions.” See Compl. Ex. A at 16–17 (“There also proposed changes that we have 14 made to social media platforms, including Facebook, and those specifically are four key 15 steps. . . . Second, that we have recommended – proposed that they create a robust 16 enforcement strategy . . . . there’s about 12 people who are producing 65 percent of anti- 17 vaccine misinformation. . . .”). Thus, on Rogalinski’s own view, the government was 18 merely “suggest[ing]” that the companies pay attention to these (unnamed) individuals. 19 Further, Rogalinski’s distinctions address none of the other key grounds for this 20 Court’s conclusion in Hart. Rogalinski “does not come close to pleading state action under 21 either theory.” See Hart, 2022 WL 1427507, at *5. 22 2. Nexus and Joint Action 23 Rogalinski argues that the allegations satisfy the nexus test because “the State chose 24 the targets and content of the statements that it deemed worthy of the Defendant’s 25 censorship,” which indeed “resulted in actual censorship.” Opp’n at 10. He contends that 26 they satisfy the joint action test because the government and Meta “communicated directly 27 and specifically about the censorship actions and did in fact engage in the act together by 1 responsible for half of the censorship action.” Id. at 11. The Court disagrees. Because the 2 tests largely overlap, it will address them together. Accord O’Handley v. Padilla, No. 21- 3 CV-07063-CRB, 2022 WL 93625, at *18 (N.D. Cal. Jan. 10, 2022) (“For the same reasons 4 the Complaint does not meet the joint action test, it also does not meet the nexus test.”).1 5 The nexus test “asks ‘whether there is a sufficiently close nexus between the State 6 and the challenged action of the regulated entity so the action of the latter may be fairly 7 treated as that of the state itself.’” Gorenc v. Salt River Project Agr. Imp. & Power Dist., 8 869 F.2d 503, 506 (9th Cir. 1989) (citing Jackson v. Metropolitan Edison Co., 419 U.S. 9 345, 351 (1974)); see also Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 955 (9th 10 Cir. 2008) (listing factors to consider, including whether the funds of the organization 11 come from the state and whether state officials dominate its decision-making). 12 Similarly, the joint action test asks “whether the state has ‘so far insinuated itself 13 into a position of interdependence with [the private entity] that it must be recognized as a 14 joint participant in the challenged activity.” Gorenc, 869 F.2d at 507 (quoting Burton v. 15 Wilmington Parking Auth., 365 U.S. 715, 725 (1961)). “[A] bare allegation of such joint 16 action will not overcome a motion to dismiss.” DeGrassi v. City of Glendora, 207 F.3d 17 636, 647 (9th Cir. 2000). The Supreme Court has explained:

18 [A] State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such 19 significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. Mere approval of 20 or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those 21 initiatives. 22 Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982). And this circuit requires “substantial 23 cooperation” or that the private entity and government’s actions be “inextricably 24 25 1 At times, Rogalinski also gestures at the argument that Facebook was coerced by the government. See Opp’n at 7 (arguing that Psaki’s statements were aimed at “coercing compliance 26 from the Defendant who had not been as cooperative as the federal government would have liked”). Yet Rogalinski later abandons it. See Opp’n at 13 (“There’s no indication that Facebook 27 was forced into its part of this endeavor . . . the Defendant acted willfully and voluntarily . . . .”). 1 intertwined.” Brunette v. Humane Society of Ventura Cnty., 294 F.3d 1205, 1211 (9th Cir. 2 2002). Although “[a] conspiracy between the State and a private party to violate 3 constitutional rights may also satisfy the joint action test,” id., the private and government 4 actors must have actually agreed to “violate constitutional rights,” Fonda v. Gray, 707 F.2d 5 435, 438 (9th Cir. 1983). 6 First, as in Hart, the allegations strongly suggest that Meta’s decisions were entirely 7 its own. As Rogalinski admits, “pressure began to mount” on Meta before Psaki’s 8 statement, and Meta had formed a “dogmatic narrative about COVID-19 and its 9 vaccinations.” Compl. ¶¶ 18–19. Rogalinsky admits that Meta took action against (what it 10 viewed as) COVID-19 misinformation before any government statement. Indeed, all of 11 the alleged censorship against Rogalinski occurred before any government statement. 12 Hart, 2022 WL 1427507, at *6. At the press conference, Psaki noted that Meta had already 13 taken action to ban some people from certain platforms. Compl. Ex. A at 16. Rogalinski 14 has not rebutted the eminently plausible conclusion that Facebook acted alone. See Hart, 15 2022 WL 1427507, at *7–8 (noting that Facebook’s Terms of Service established that (1) 16 the company had a misinformation policy; and (2) it enforced it); see also Twombly, 550 17 U.S. at 557 (allegations of secret illegal conduct are insufficient where they are consistent 18 with plausible legal explanations). 19 Second, even if the government assisted companies in identifying users who posted 20 alleged misinformation, Rogalinski fails to allege that the government ever had any focus 21 specifically on him. See Children’s Health Def. v. Facebook Inc., 546 F. Supp. 3d 909, 22 933 (N.D. Cal. 2021) (finding no state action absent an allegation that a state actor took 23 “specific action with regard to [plaintiff] or its Facebook page”); Daniels v. Alphabet Inc., 24 2021 WL 1222166, at *6 (N.D. Cal. Mar. 31, 2021) (same where “[p]laintiff does not 25 allege that the federal government directed a particular result with respect to his . . . 26 videos”). Rogalinski emphasizes that Psaki supposedly admitted to focusing on twelve 27 individuals. Opp’n at 5. But Psaki never indicated that the government was targeting 1 See Compl. Ex. A at 16. And Rogalinski fails to identify the individuals or their posts, so 2 he does not plausibly allege that they suffered injury or that the government participated in 3 that injury. Furthermore, even if the government did target these individuals—and even if 4 it took joint action against them—Rogalinski fails to plausibly allege that he is in this 5 group or sufficiently comparable in influence to have suffered the same treatment. 6 Third, even if the government provided Meta with information about Rogalinski, 7 that (without more) is insufficient because the government can work with a private entity 8 without converting that entity’s later decisions into state action. See Blum, 457 U.S. at 9 1010 (finding no state action where government did not “dictate the decision . . . in a 10 particular case”). In Mathis v. Pacific Gas Company, 75 F.3d 498, 501 (9th Cir. 1996), 11 PG&E conducted an undercover operation in close partnership with the county narcotics 12 Task Force, after which PG&E made a “decision to exclude [the plaintiff] from the plant.” 13 The plaintiff argued that PG&E’s decision was joint action attributable to the county 14 because the decision was based on information uncovered in the investigation. The Ninth 15 Circuit disagreed, emphasizing that the plaintiff’s “challenge is limited to PG&E’s 16 decision-making process after the investigation was completed.” Id. at 504. “Whether or 17 not [the county’s] previous acts facilitated the decision, the mantle of its authority didn’t.” 18 Id. PG&E independently decided to exclude the plaintiff, so there was no joint action. Id. 19 In O’Handley, this Court applied Mathis to find no state action. 2022 WL 93625, at 20 *10. The Court noted O’Handley’s argument that “without [the government’s] flagging 21 O’Handley’s tweet to Twitter, [he] wouldn’t have had his first tweet labeled.” Id. (cleaned 22 up). But the Court observed that Mathis had rejected this exact argument: PG&E may 23 have used information from the government investigation, but its decision was still its 24 own. O’Handley had failed to allege state action because “there is no evidence or even 25 allegation that the government played any role in Twitter’s ‘internal . . . decisions,’ to label 26 [his] tweets, or to add strikes to and ultimately suspend [his] account.” Id. (quoting 27 Mathis, 75 F.3d at 504). So too with Meta’s internal decisions about Rogalinski. As the 1 [E]ven if the White House had specifically communicated with these companies about Hart’s post or tweet, [the companies’ | 2 enforcement of [their] policy as to that post or tweet would still not be joint action. One party supplying information to another 3 party does not amount to joint action. See Lockhead _v. Weinstein, 24 Fed. App’x 805, 806 (9th Cir. 2001) (“[Ml]ere 4 furnishing of information to police officers does not constitute joint action”); Fed. Agency of News, 432 F. Supp. 3d at 1124 5 (“supplying information to the state alone [does not amount] to conspiracy or joint action”) (alteration added). The one-way 6 communication alleged here falls far short of “substantial cooperation.” See Brunette, 294 F.3d at 1212. After all, the 7 Federal Defendants did not “exert[] control over how [Facebook or Twitter] used the information [it] obtained.” See Deeths v. 8 Lucile Slater Packard Children’s Hospital at Stanford, 2013 WL 9 6185175, at *10 (E.D. Cal. Nov. 26, 2013). Hart, 2022 WL 1427507 at 7. Aligned interests or “mere approval of or acquiescence in 10 the initiatives of a private party is not sufficient to justify holding the State responsible for 11 those initiatives.” Blum, 457 U.S. at 1004-05. 12 As Rogalinski fails to plead state action under either his joint action or nexus 13 & theories, his First Amendment claim fails as a matter of law. And because Rogalinski does 14 not come close to alleging state action, the Court concludes that amendment would be 2 15 = futile and denies leave to amend. Leadsinger, 512 F.3d at 532. («16 a IV. CONCLUSION © 17 For the foregoing reasons, the Court GRANTS the motion to dismiss without leave 18 a to amend. 19 IT IS SO ORDERED. 20 Dated: August 9, 2022 21 CHARLES R. BREYER 9 United States District Judge 23 24 25 26 27 28