Courts Are Echoing The Third Circuit’s Repeal of Section 230–Huckabee v. Meta

Mike Huckabee is the former governor of Arkansas and Trump’s choice for ambassador to Israel. He claims that CBD advertisers featured his name, photo, and likeness in Facebook ads. An example of the ads is displayed on the right. As a result of these ads, allegedly “Governor Huckabee is now wrongly associated with the CBD industry.”

Huckabee sued Facebook for publicity rights violations and more. Facebook defended on Section 230. The District of Delaware court follows the Anderson v. TikTok case eliminating Section 230 in the Third Circuit, but nevertheless dismisses Huckabee’s case on the prima facie elements.

Section 230

• ICS Provider. Yes.
• Publisher/speaker claim. Yes.
• Third-party content. No, per Anderson v. TikTok. The ads are clearly third-party content. However, “Governor Huckabee similarly alleges that “Meta collects user data to train machine-learning algorithms to predict what content will keep and attract users” and “decides which posts appeal” at the top of users’ newsfeed to maximize exposure to certain posts, including advertisements.” These decisions are Meta’s, as they were TikTok’s, “own expressive activit[ies]” and “first-party speech.” Such speech therefore renders Meta an “information content provider” and not immune to the Governor’s claims.” Facebook responded that it didn’t materially contribute to the illegality (a Roommates.com argument) but the court says it can’t resolve that on the motion to dismiss. (Plus, if Facebook is an ICP, I’m not sure the material contribution defense still applies).

Note the court could have possibly avoided engaging the Anderson precedent at all. Publicity rights claims should be “intellectual property” claims in the Third Circuit per the Hepp v. Facebook case, so it’s not clear that Facebook could have qualified for Section 230 for much of the complaint (the rest could have been resolved on the prima facie elements). Instead, the court doesn’t discuss the 230 IP exception at all. My intuition suggests that the judge went out of his way to reach out to the Section 230 issue even though it was eminently avoidable.

Publicity Rights Claim

The Arkansas publicity rights statute requires scienter on the part of a “service provider of a system or network,” which I infer includes Facebook. Huckabee apparently never sent a takedown notice, and his other scienter allegations are insufficient.

False Light

Huckabee didn’t sufficiently allege that Facebook had actual malice. Huckabee alleged that Facebook “approved and maintained” the ads, but that isn’t enough to confer actual malice about the ads’ truthfulness.

Implications

Yet another reminder: reforming Section 230 won’t change the outcome of cases like this. This case reminded me of the Twitter v. Taamneh case, where default legal principles dictated the same outcome as Section 230 would have. However, if the publicity rights claim is notice-and-takedown as suggested by the court’s scienter discussion, then Huckabee could have spiked these ads with a C&D (an outcome 230 wouldn’t permit).

This ruling shows how courts in the Third Circuit will interpet the Anderson v. TikTok ruling as the end of Section 230 because plaintiffs can always claim that they are suing based on the defendant’s “expressive activities.” In other words, this court had to acquisece to the Third Circuit’s interpretation that the Moody v. NetChoice ruling eviscerated Section 230–even though the Moody majority opinion didn’t say a word about Section 230. (This court theoretically could have distinguished Facebook’s ad algorithm from TikTok’s For You page but didn’t try). The Third Circuit’s intrpretation of Section 230 is clearly not at equilibrium–either Section 230 is dead across the country due to Moody, or the Supreme Court will have to fix the Third Circuit’s obvious misreading of Moody. TikTok is mulling a Supreme Court appeal of the Anderson case (the 3d Circuit unfortunately denied en banc review); but if that case doesn’t make it onto the Supreme Court docket, other Third Circuit opinions inevitably will make their way to the Supreme Court until an equilibrium is restored.

Case Citation: Huckabee v. Meta Platforms, Inc., 1:24-cv-00773-GBW (D. Del. Nov. 18, 2024). The complaint.