Before the Academy: CHD sued Facebook under RICO, and lost
Five years, four defendants, three courts, and nothing at the end of it. Children's Health Defense v. Meta Platforms failed at every level — no state action, no commercial speech, and no proximate cause under the racketeering statute. The Supreme Court declined to hear it on 30 June 2025. Seven months later the same organisation filed a fresh racketeering suit, this time against the American Academy of Pediatrics.
What this page is built from
The reported judgment of the United States Court of Appeals for the Ninth Circuit, Children's Health Defense v. Meta Platforms, Inc., 112 F.4th 742 (9th Cir. 2024), and the Supreme Court's own public docket in No. 24-732. Both are free to read and linked at the foot of this page. Quotations are from the opinion.
This page takes no position on content moderation. Whether Facebook should label vaccine posts, and whether a private platform of that size ought to be treated differently from a corner shop, are real arguments on which reasonable people divide. What is recorded here is narrower: what this particular organisation pleaded, and what three courts did with it. A claim being dismissed is a judicial assessment of a pleading. It is not a verdict on the underlying grievance, and it is not presented as one.
What was filed, and against whom
Children's Health Defense filed suit in the United States District Court for the Northern District of California in August 2020, case No. 3:20-cv-05787-SI, before Judge Susan Illston. A second amended complaint followed on 4 December 2020.
There were four defendants: Meta Platforms, Inc., which operates Facebook; Mark Zuckerberg personally; the Poynter Institute for Media Studies, the journalism school that runs the International Fact-Checking Network; and Science Feedback, a French fact-checking organisation.
Four sets of claims were brought:
- First Amendment — damages under Bivens, plus declaratory and injunctive relief, on the theory that Facebook was acting as an arm of the federal government when it restricted CHD's page.
- Fifth Amendment — that disabling CHD's donate button was a taking of property.
- Lanham Act — that the warning labels and fact-checks were false advertising.
- Civil RICO — that the defendants together ran a racketeering enterprise, with wire fraud as the predicate act.
What CHD said had been done to it
The grievance should be set out fairly, because the court's reasoning only makes sense against it. CHD alleged that:
- Flagged posts were covered by a grey overlay with a “See Why” link. The post remained reachable, but a reader had to click through an interstitial saying a fact-checker had found the information inaccurate.
- From September 2019 a banner appeared on CHD's page stating that it posts about vaccines, and directing readers to the Centers for Disease Control website.
- Meta disabled the donate button, saying CHD had breached Facebook's fundraising terms. CHD had taken more than $40,000 in donations through the page in 2019.
- CHD, Kennedy personally and an affiliated agency were barred from buying advertising.
- Its posts were “shadow-banned” — visible only to the poster and some friends — and “sandboxed”, shown only to users already sympathetic. Traffic from the page to CHD's own website fell substantially.
- CHD's ability to dispute any of this through Facebook's own process was switched off.
Those are real commercial consequences for an organisation that raises money online, and the Ninth Circuit did not suggest otherwise. The case failed on who was responsible, not on whether anything happened.
The district court, and then four years of silence
Judge Illston dismissed the operative complaint on 29 June 2021, without leave to amend, and entered final judgment the next day. Science Feedback was dismissed without prejudice because it had never been properly served. The remaining defendants were dismissed for failure to state a claim.
CHD appealed. The Ninth Circuit heard argument in Pasadena on 17 May 2022 — and then did not rule for two years and three months. The opinion came down on 9 August 2024. A delay of that length in a three-judge panel usually means a dissent is being written, and one was.
Why it failed: no state action
The First Amendment restrains government, not private companies. So CHD's constitutional claims depended entirely on persuading the court that Facebook's conduct was fairly attributable to the federal government. The panel — Circuit Judges Eric D. Miller and Daniel P. Collins, with District Judge Edward R. Korman of the Eastern District of New York sitting by designation — held that it was not, and gave three reasons.
- The policy was Meta's own. The harm came from Facebook's content rules, not from any federal rule. Meta was applying its own policy.
- There was no agreement. CHD could not plausibly allege a specific agreement with government. Letters from legislators “did not require action or threaten penalties,” and generalised statements by officials were not coercion. As the court put it, it is not enough to show an agreement to do something — the parties must also agree on what that something is.
- Section 230 is not a leash. The statutory immunity platforms enjoy is a passive benefit. Conferring it does not convert a platform's editorial choices into state action.
Judge Miller wrote for the majority that CHD's “inability to establish state action is fatal to all of its First Amendment claims.” The Fifth Amendment takings claim over the donate button failed for the same reason.
Why it failed: the labels were not advertising
The Lanham Act claim required the warning labels to be “commercial advertising or promotion.” The panel held they were not. Meta's commentary, it found, “did not represent an effort to advertise or promote anything, and it did not propose any commercial transaction.” Meta's general economic interest in its own platform was too remote to make the labels commercial speech. Having decided that, the court did not need to reach whether CHD fell within the statute's zone of interests at all.
Why it failed: the RICO claim, and why it matters now
This is the part of the judgment with the longest reach, because the same statute is now being used against American paediatricians.
CHD pleaded civil RICO with wire fraud as the predicate act. The panel held the claim failed on two elements: CHD had not adequately pleaded a scheme to defraud, and it had not pleaded proximate cause. The alleged mislabelling, the court said, was “several steps removed from the conduct directly responsible for CHD's asserted injury.”
The court also found the causal theory implausible on its own terms. CHD's injury was lost donations — but it had not alleged that any visitor to its page, having seen a warning label, went and gave money to some other organisation instead.
The same statute, the same problem, eighteen months later
On 21 January 2026 Children's Health Defense filed Shaw v. American Academy of Pediatrics in the District of Columbia, again under the civil RICO statute, again seeking treble damages. The Academy's motion to dismiss argues, among much else, that the plaintiffs cannot connect the claimed injuries to the conduct alleged.
Proximate cause is where the Meta case died. It is a recurring difficulty for this theory rather than an accident of one pleading: when the alleged racketeering is a published statement, and the alleged injury is what somebody else then decided to do, the chain between them has to be short enough for a court to follow. In Meta it was not. Whether it is in Shaw is before Judge Timothy J. Kelly now.
Our record of that case is at Racketeering: the lawsuit that calls recommending childhood vaccines organised crime.
The dissent, which matters
The decision was not unanimous, and a reader should know it.
Judge Collins would have let part of it proceed
Judge Daniel P. Collins concurred in the judgment on every claim except one. He would have held that CHD “could plausibly allege a First Amendment claim for injunctive relief against Defendant Meta Platforms Inc.” — applying the test from Skinner v. Railway Labor Executives' Association — and would have sent that single claim back to allow an amended pleading.
He agreed with the majority on the Bivens damages analysis, on the Lanham Act and on RICO. So the dissent does not rescue the racketeering theory, and it is not authority for the proposition that the case should have succeeded. But a federal appellate judge concluded that one of these claims was plausible enough to deserve another go, and any honest account of this case says so.
The Supreme Court
CHD petitioned for certiorari. The docket is No. 24-732, and it ran as follows.
A denial of certiorari sets no precedent and decides nothing on the merits — the Court takes roughly one petition in a hundred. But it is the end of the road, and after it the Ninth Circuit's judgment stands.
Who argued it, and what the filings show they were paid
The opinion names counsel on its cover pages. For Children's Health Defense, the appeal was argued by Jed Rubenfeld of Yale Law School, New Haven, Connecticut, and by Robert F. Kennedy Jr., then the organisation's chairman and chief legal counsel. Mary S. Holland, now CHD's chief executive, and Roger I. Teich of San Francisco were on the briefs. Teich went on to be counsel of record on the certiorari petition.
Two of those four names also appear on Children's Health Defense's Form 990 returns, in Part VII Section B, which lists the five highest-paid independent contractors receiving more than $100,000 in the year:
| As named in the Form 990 | Service | 2022 | 2023 |
|---|---|---|---|
| Jed Rubenfeld | 1031 Forest Road, New Haven, CT — legal | $504,668 | $537,290 |
| Roger Teich | 290 Nevada Street, San Francisco, CA — legal | — | $293,933 |
The match is by name and city across two public documents — a federal appellate opinion and a tax return — and on that basis it is as firm as such things get. The years line up with the appeal, which was argued in May 2022 and decided in August 2024.
What those figures do not mean
Form 990 requires a contractor's name, business address, a one-word description of the service and the year's total. It does not require hours, rates, or which matters the money was for. So none of these payments can be attributed to this case, and no part of this page does so. A lawyer paid half a million dollars in a year by an organisation that litigates continuously may have spent that year on a dozen other matters.
What the two documents together establish is narrower and still worth knowing: the people who argued this appeal were not volunteers or pro bono counsel brought in for one cause. They were paid professionals in a continuing relationship with the client, at a scale the client's own filings disclose. The same is true of the lawyer who filed the suit against the American Academy of Pediatrics — see the money.
What it adds up to
Set the two cases side by side and a shape appears. A long pleading, several defendants, a constitutional theory that requires private conduct to be treated as government conduct, and a racketeering count bolted on in pursuit of treble damages. In the Meta case the constitutional theory failed because no agreement with government could be pleaded, and the racketeering count failed because the chain from the alleged wrong to the claimed loss was too long. Both of those are structural problems with the approach, not bad luck.
Five years from filing to the Supreme Court's refusal. No trial, no ruling on whether Facebook should label vaccine posts, and nothing recovered. The organisation's own tax returns show what the legal programme cost over the overlapping years: $10.09 million in three years, a fifth of everything it spent.
For readers weighing the underlying argument
None of the above means the concern about platform moderation is frivolous. The question of how much pressure a government may bring to bear on a private platform before its choices become the state's is live and unsettled in American law, and the Supreme Court has returned to adjacent questions more than once. Judge Collins thought one version of the claim was plausible. What this record establishes is that this case, as pleaded, did not get there — and that a reader deciding whether to fund litigation of this kind is entitled to know how the last one ended.
Sources. Children's Health Defense v. Meta Platforms, Inc., 112 F.4th 742 (9th Cir. 2024), No. 21-16210, opinion of 9 August 2024, available from the court at cdn.ca9.uscourts.gov and in summary from Justia. District court proceedings: No. 3:20-cv-05787-SI (N.D. Cal.), Judge Susan Illston, dismissal of 29 June 2021 without leave to amend. Supreme Court docket No. 24-732, supremecourt.gov, certiorari denied 30 June 2025. Contractor payments from the Form 990 returns of Children's Health Defense, EIN 26-0388604, for the years ending December 2022 and December 2023, Part VII Section B. Corrections are welcome and will be posted.