Association of American Physicians & Surgeons, Inc. v. Adam Schiff ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 10, 2021 Decided January 25, 2022
No. 21-5080
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
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-00106)
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.
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Before: ROGERS and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
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
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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
1
Press Release, Schiff Sends Letter to Google, Facebook Regarding
Anti-Vaccine Misinformation (Feb. 14, 2019), available at
https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-
google-facebook-regarding-anti-vaccine-misinformation; Press
Release, Schiff Sends Letter to Amazon CEO Regarding Anti-
Vaccine Misinformation (Mar. 1, 2019), available at
https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-
amazon-ceo-regarding-anti-vaccine-misinformation.
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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
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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
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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 (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
(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 (quoting Lujan, 504
U.S. at 560). For traceability, “there must be a causal
connection between the injury and the conduct complained of,”
Lujan, 504 U.S. at 560, 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 (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 (quoting Allen v.
Wright, 468 U.S. 737, 758 (1984), abrogated on other grounds
by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572
U.S. 118 (2014)).
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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(1973), as establishing that standing to bring First Amendment
claims is subject to a “more deferential standard.” Appellants’
Br. 21. But in Broadrick, the Supreme Court held only that the
“traditional rules of standing” operate differently when a
plaintiff brings a facial overbreadth challenge to a statute.
Broadrick, 413 U.S. at 611–12. Because the “very existence”
of an overbroad statute may chill protected speech, the Court
concluded that the need to ensure the litigants have a strong
personal stake in the outcome is diminished in such a case. Id.Appellants do not explain why that rationale is applicable
here. They have alleged not a general chilling effect but rather
an intentional effort by a government official to limit their
speech in particular. Am. Compl. ¶¶ 92–94.
B.
The Association contends that it suffers three concrete
injuries that suffice to establish standing: an impairment of its
ability “to negotiate and to contract with interactive computer
services,” Am. Compl. ¶ 18; a monetary injury from reduced
web traffic that may affect its stream of donations; and a First
Amendment injury based on the alleged “de-platform[ing]” of
its content that harms its speech and associational interests, id.
¶ 11.
As for the claim that Representative Schiff interfered with
the Association’s ability to contract with the technology
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companies, the Association has not plausibly alleged injury-in-
fact. The Association maintains that Representative Schiff’s
actions interfered with its “free negotiations” with the
technology companies. Appellants’ Br. 19. But the
Association never alleged that it has made any attempts at such
negotiations, nor that it has concrete plans to do so in the future.
“Such ‘some day’ intentions — without any description of
concrete plans, or indeed even any specification of when the
some day will be — do not support a finding of the ‘actual or
imminent’ injury” that the Supreme Court has required. Lujan,
504 U.S. at 564. Any harm to the Association’s interest in
negotiating and contracting with the technology companies is
therefore too speculative to support standing.
The Association appears to suggest that its preexisting
contractual relationship with Amazon suffices to show its
concrete plans to negotiate. Reply Br. 9. The Association was
previously enrolled in the Amazon Associates Program, an
“affiliate network[]” that allows “website owners to earn
commissions based on their traffic.” Am. Compl. ¶ 73.
According to the Association, Amazon terminated its
enrollment in the program in August 2019 for reasons that
appeared to the Association to be pretextual. But the
Association has not alleged that it took any steps to rejoin the
program, nor even that it would do so if given the opportunity.
The Association’s previous relationship with Amazon
therefore does not show the kind of specific intention to
negotiate and contract with the technology companies that
could establish actual, as opposed to speculative, injury-in-fact.
The Association’s other claimed injuries — to its financial
prospects and to its speech and associational interests — are
not adequately supported by allegations that any injury is
“fairly traceable” to Representative Schiff’s actions, Spokeo,
578 U.S. at 338, even assuming the Association has plausibly
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alleged actual, concrete injury-in-fact. The Association
complains of being “de-platform[ed]” and “disfavor[ed]” by
the social media sites and search engines through which it
promotes its vaccine-related information. Am. Compl. ¶ 11.
But any actions limiting the accessibility of the Association’s
web content were not taken by Representative Schiff; instead,
as the amended complaint acknowledges, they were taken by
independent third parties Facebook, Google, Amazon, Twitter,
and YouTube. Id. ¶¶ 68–78.
Nonetheless, appellants maintain that the companies’
adverse action against the Association’s content is ultimately
attributable to Representative Schiff’s statements, which they
view to have implicitly threatened and coerced the technology
companies. The amended complaint appears to allege a
primary theory of causation based on two sets of statements by
Representative Schiff. First, Representative Schiff sent the
information-gathering letters to several major technology
companies, including Google, Facebook, and Amazon, and
shared copies of those letters as well as the responses in press
releases posted on the House.gov website and in social media
posts. Second, several months later, Representative Schiff
made remarks at a hearing of the House Intelligence
Committee, of which he is the chair, “challeng[ing] the
immunity” that certain technology companies enjoy under the
Communications Decency Act, 47 U.S.C. § 230. Am. Compl.
¶ 65. According to appellants, the companies understood that
Representative Schiff was threatening to support changes to
Section 230 if the companies declined to comply with his
“wishes on other fronts,” including his concerns about
“disfavored material on vaccinations on their platforms,” and
his statements intimidated and “coerce[d]” the companies “to
censor content that he opposes.” Id. ¶ 67.
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Yet appellants’ allegations have not presented a plausible
account of causation. Even assuming the Association’s content
was indeed demoted in search results and on social media
platforms, the technology companies may have taken those
actions for any number of reasons unrelated to Representative
Schiff. Appellants offer no causal link that suggests it was an
isolated inquiry by a single Member of Congress that prompted
policy changes across multiple unrelated social media
platforms. The timeline of events in the amended complaint
also undermines any possibility that the companies acted at
Representative Schiff’s behest in particular. For example, the
amended complaint quotes Google’s response to
Representative Schiff’s letter, which explained: “[W]e are and
have been demonetizing anti-vaccination content under our
longstanding harmful or dangerous advertising policy.” Id.
¶ 71 (emphasis added). Likewise, the amended complaint itself
acknowledges that several of the other adverse actions by the
technology companies occurred before the June 2019
Intelligence Committee hearing. For example, Facebook
announced its new policy of prioritizing government-
sponsored vaccine information in search results in March 2019,
id. ¶ 76, and Twitter introduced its search-results disclaimer
directing users to government-sponsored vaccine information
in May 2019, id. ¶ 74. Even assuming some of the policy
changes to which appellants object were anticipatory in nature,
the decisions by the companies seem to have occurred before
Representative Schiff even sent the letters, and many took
place before the hearing that purportedly coerced the
companies to adopt Representative Schiff’s preferences.
Generously construing the allegations of the amended
complaint, the Association also appears to suggest that
causation is satisfied because Representative Schiff
coordinated the “drafting and timing” of the letters with the
tech companies before releasing them, and that the letters were
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“a substantial factor motivating” the companies’ “actions to
suppress vaccine-related information.” Id. ¶ 12. But this is
exactly the kind of allegation the Supreme Court rejected in
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). After all,
“a conclusory allegation of agreement at some unidentified
point does not supply facts adequate to show illegality.” Id. at
557. As in Twombly, these allegations are “merely consistent
with,” but do not “plausibly suggest[],” the kind of coordinated
action that would supply a causal link between Representative
Schiff’s statements and the technology companies’ actions. Id.Indeed, it is far less plausible that the companies’ actions were
a response to one legislator’s inquiry than that they were a
response to widespread societal concerns about online
misinformation. 2
C.
Appellant Verrelli, for her part, contends she suffers a kind
of First Amendment injury as well because she now finds it
more difficult to access the vaccine-related content she would
like to view online. Verrelli, however, is not mentioned in the
argument portion of appellants’ opening brief, so any
contention that the district court erred in ruling that she lacks
standing is forfeited. Al-Tamimi v. Adelson, 916 F.3d 1, 6
(D.C. Cir. 2019). In any event, her claims suffer from the same
causation deficiency as those of the Association. Even
assuming the kind of vaccine-related information she would
like to access is more difficult to locate on her preferred web
sources, she has not plausibly alleged that this is attributable to
Representative Schiff’s actions rather than an independent
2
See Press Release, Schiff Sends Letter to Google, Facebook
Regarding Anti-Vaccine Misinformation (Feb. 14, 2019), available
at https://schiff.house.gov/news/press-releases/schiff-sends-letter-
to-google-facebook-regarding-anti-vaccine-misinformation; H.R.
Res. 179, 116th Cong. (2019).
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decision of the technology companies. As a result, she lacks
standing to sue Representative Schiff.
III.
The district court also ruled that, apart from appellants’
failure to demonstrate Article III standing, it lacked subject
matter jurisdiction because Representative Schiff’s challenged
actions were “legislative acts” that were protected by the
Speech or Debate Clause of the Constitution, U.S. CONST. art.
I, § 6, cl. 1. AAPS, 518 F. Supp. 3d at 518–19. Because
appellants have not established that they have Article III
standing, the court need not reach the separate jurisdictional
issue of Representative Schiff’s immunity under the Speech or
Debate Clause. See Rangel, 785 F.3d at 22. Counsel for
appellants suggested at oral argument, however, that the court
should address the Speech or Debate Clause issue because it is
implicated in appellants’ request for leave to amend the
complaint for a second time. That is, if the court concludes
they lack standing because any injury they suffer is attributable
to “third part[ies] not before the court,” Lujan, 504 U.S. at 560(quoting Simon, 426 U.S. at 42), namely, the technology
companies, then the court should permit them to amend the
complaint to join the technology companies as defendants. But
appellants acknowledge that they did not seek leave to amend
in the district court. They also acknowledge that the court
generally does not grant leave to amend a complaint when it
was not sought in the district court. Appellants’ Br. 54–55
(citing Gov’t of Guam v. Am. President Lines, 28 F.3d 142,
150–51 (D.C. Cir. 1994)). Further, their appellate briefs offer
no reason why the court should deviate from its general
practice here. To the extent counsel for appellants first argued
during oral argument that seeking leave to amend to cure the
amended complaint’s standing deficiencies in the district court
would have been futile given that court’s determination that
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Representative Schiff was immune from suit under the Speech
or Debate Clause, Oral Arg. Audio 42:12–43:59 (Dec. 10,
2021), appellants did not alert Representative Schiff to this new
argument, so it is forfeited. Al-Tamimi, 916 F.3d at 6.
Accordingly, because appellants offer no plausible basis to
conclude that Representative Schiff’s inquiries caused the
technology companies to implement the policy changes to
which appellants object, they have not established standing,
and we affirm the district court’s dismissal of their amended
complaint.