Ass'n of Am. Physicians & Surgeons, Inc. v. Schiff

• Decision Date: 25 January 2022
• Docket Number: No. 21-5080,21-5080
• Citation: 23 F.4th 1028
• Parties: ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, INC. and Katarina Verrelli, individually and on behalf of all others similarly situated, Appellants v. Adam SCHIFF, in his individual capacity and his official capacity as a Member of Congress for the 28th Congressional District of California, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

23 F.4th 1028

ASSOCIATION OF AMERICAN PHYSICIANS & SURGEONS, INC. and Katarina Verrelli, individually and on behalf of all others similarly situated, Appellants

v.Adam SCHIFF, in his individual capacity and his official capacity as a Member of Congress for the 28th Congressional District of California, Appellee

No. 21-5080

United States Court of Appeals, District of Columbia Circuit.

Argued December 10, 2021

Decided January 25, 2022

Lawrence J. Joseph argued the cause and filed the briefs for appellant.

Todd B. Tatelman, Principal Deputy General Counsel, U.S. House of Representatives, argued the cause for appellee. With him on the brief were Douglas N. Letter, General Counsel, Sarah Clouse, Associate General Counsel, and Brooks M. Hanner, Associate General Counsel.

Before: Rogers and Rao, Circuit Judges, and Silberman, Senior Circuit Judge.

Rogers, Circuit Judge:

The Association of American Physicians and Surgeons appeals the dismissal of its complaint for lack of Article III standing. The Association, joined by an individual, sued a Member of Congress who wrote to several technology and social media companies before and during the COVID-19 pandemic expressing concern about vaccine-related misinformation on their platforms and inquiring about the companies' policies for handling such misinformation. The Association, which purveys vaccine-related information online, alleged that the inquiries prompted the technology companies to disfavor and deprioritize its vaccine content, thereby reducing traffic to its web page and making the information more difficult to access. Because appellants have not established that they have standing, the court affirms the dismissal of the complaint.

I.

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," Am. Compl. ¶ 10. 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." Id. ¶ 3. 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." Id. ¶ 68. 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.¹ 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." Id. He requested that the companies respond to a list of questions regarding the companies' policies about and approaches to vaccine-related misinformation. Id. Although the letters are not included in the Joint Appendix, the court may look to their full text that is incorporated and linked in the amended complaint. See Hurd v. District of Columbia , 864 F.3d 671, 678 (D.C. Cir. 2017).

When the House Intelligence Committee later held a hearing on "the national and election security risks of technology that allows the creation of ‘fake’ videos," Chairman Schiff "challenged the immunity that [the technology companies] have under Section 230 of the [Communications Decency Act]" and inquired whether Congress should make changes to that immunity. Am. Compl. ¶ 65. His comments put the technology companies "on notice that they would need to comply with [Representative] Schiff's position or risk his undertaking legislative action against ... § 230." Id. ¶ 66. Representative Schiff also allegedly "negotiated the drafting and timing of his public correspondence with" the recipients of the letters "prior to finalizing and publicizing the correspondence," id. ¶ 12, and his "outreach" to the technology companies was a "substantial factor motivating" the following actions the companies subsequently took, id. The following year, on April 30, 2020, Representative Schiff posted on Twitter about another three similar letters he had sent to YouTube, Twitter, and Google's parent company, Alphabet. Id. ¶ 77.

According to the Association, the technology companies have taken a number of steps to disfavor and deprioritize its vaccine-related information on their platforms. For example, Google's initial response to Representative Schiff's letter indicated that the company had "put a lot of effort into curbing misinformation in our products." Id. ¶ 71. Google explained: "[W]e are and have been demonetizing anti-vaccination content under our longstanding harmful or dangerous advertising policy." Id. Facebook's response likewise explained that its "approach ... is to reduce the spread of inaccurate information about vaccines" and detailed some of its strategies. Id. In March 2019, Facebook announced a new policy of promoting links to government-sponsored information about vaccine safety in search results for vaccine-related information. That policy was implemented in September of 2019. And in May 2019, Twitter announced a new policy of placing a "pro-government" disclaimer on vaccine-related information, including search results for the Association's articles, which appellants allege carried the damaging implication that its perspective is "less credible." Id. ¶¶ 74–75. In August 2019, Amazon "suddenly announced [the Association's] termination from the Amazon Associates Program," which allows participants to earn commissions when web users purchase products on Amazon via a link on the participant's website. Id. ¶ 73. According to the Association, the circumstances of the termination "suggest[ed] either selective enforcement or an ulterior motive." Id. These actions by the technology companies have "significantly depressed the internet traffic to the [Association's] website." Id. ¶ 78. The Association further alleges that "[a]s a result of [Representative] Schiff's actions and those taken in response to Schiff's actions by interactive computer services such as Google, Facebook, and Amazon ..., the visits to the [Association's] website declined significantly," all while traffic to the Association's non-vaccine-related content "held steady" and while visits from search engines that did not "disfavor" the Association's vaccine-related content increased. Id. ¶ 11.

The district court granted Representative Schiff's motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) because appellants lacked Article III standing and because Representative Schiff was immune from suit for the challenged actions under the Speech or Debate Clause, see Ass'n of Am. Physicians & Surgeons v. Schiff ("AAPS "), 518 F. Supp. 3d 505, 512 (D.D.C. 2021). The Association and Verrelli appeal. This court's review is de novo , Rangel v. Boehner , 785 F.3d 19, 22 (D.C. Cir. 2015), and the court may "take up jurisdictional issues in any order," and need not reach other grounds where one is dispositive, McCarthy v. Pelosi , 5 F.4th 34, 38 (D.C. Cir. 2021).

II.

The doctrine of standing "is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish standing, a party must have "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). For injury-in-fact, "a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 339, 136 S.Ct. 1540 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). For traceability, "there must be a causal connection between the injury and the conduct complained of," Lujan , 504 U.S. at 560, 112 S.Ct. 2130, and the injury must not be "th[e] result [of] the independent action of some third party not before the court," id. (quoting Simon v. E. Ky. Welfare Rts. Org. , 426 U.S. 26, 41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ). "[W]hen the plaintiff is not ... the object of the government action or inaction [being] challenge[d], standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish." Id. at 562, 112 S.Ct. 2130 (quoting Allen v. Wright , 468 U.S. 737, 758, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014) ).

A.

Preliminarily, appellants suggest that they need not satisfy the usual standing requirements because they assert a First Amendment injury for which standing requirements are relaxed. They cite Broadrick v. Oklahoma , 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (197...