Zuckerberg and Facebook do not act under color

Nor surprising, but quite definitive.

Facebook cannot be sued because entities, as opposed to individuals, are not proper targets of Bivens actions. The stupidity of this case aside, this is problematic, because it creates another way in which Bivens is not parallel to § 1983--the company could be sued if a state or local government coerced or conspired with it to do something, but not if the federal government does that.

The claims against Zuckerberg failed in part because the complaint did not plead facts showing direct involvement by Zuckerberg with respect to the plaintiff organization's page, as opposed to running Facebook generally. The court refused to infer direct involvement from allegations of Zuckerberg being a "hands-on CEO" making it "highly likely" that he was. Any coercion or encouragement government officials gave Facebook to limit vaccine misinformation did not connect to any specific actions against the plaintiff. And § 230 immunity did not encourage or coerce this conduct, because that immunity does require Facebook or Zuckerberg to do anything and immunity does not hinge on Facebook doing anything.

The court dismissed without prejudice and denied leave to amend. The plaintiffs moved to "supplement" the controlling complaint with new information about the Biden Administration's efforts to stop online vaccine misinformation. The court treated this as a preview of what new allegations plaintiffs would put in a new pleading and concluded they would be insufficient for the same reason the current allegations are insufficient. So the case is over and the next stop is the Ninth Circuit.