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From Maffick LLC v. Facebook, Inc., decided yesterday by Judge James Donato (N.D. Cal.):

Plaintiff Maffick LLC seeks a temporary restraining order directing defendant Facebook, Inc., to take down a “Russia state-controlled media” label that Facebook posted on Maffick’s “In the Now,” “Waste-Ed” and “Soapbox” pages….

Maffick’s TRO application also raises a concern about prior restraint. A court order that forbids speech activities, which is what Maffick seeks, is a “classic prior restraint of speech.” “Prior restraints pose the ‘most serious and the least tolerable infringement on First Amendment rights,'” and there is a “historical and heavy presumption against such restraints.” …

Although Maffick asserted six causes of action against Facebook in its complaint, Dkt. No. 1, it seeks a TRO on just four of those claims: (1) libel under California Civil Code Section 45; (2) Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)(1)(A)); (3) the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200); and (4) interference with prospective economic advantage claim under California state law.

The merits inquiry is considerably streamlined by the fact that all four claims hinge on the proposition that the Russian media label is false. Consequently, to win a TRO, Maffick must demonstrate that it is likely to succeed in showing that the “Russia state-controlled media” label is false. It has not crossed that threshold.

Even assuming that the “Russia state-controlled media” label is a statement of fact—and not merely an opinion, as Facebook contends—the record before the Court establishes only that the question of falsity is disputed.

Facebook, on its part, has tendered a substantial amount of evidence in support of its view that Maffick is linked to the Russian government. For example, Facebook has established, without dispute by Maffick, that a prior entity, Maffick Media GmbH (“Maffick Media”), openly acknowledged significant ties to the Russian government. Maffick’s Soapbox, Waste-Ed, and In the Now channels on Facebook are virtually identical to the same channels Maffick Media previously sponsored under the same names. Maffick still uses Maffick Media email addresses for these channels—”hello@maffick.media” for In the Now; “waste-ed@maffick.media” for Waste-Ed; and “soapbox@maffick.media” for Soapbox.

Maffick’s current CEO, Anissa Naouai, expressly stated in a declaration accompanying the TRO application that she “owned a 49% interest” in Maffick Media, and that another “part-owner” was an entity known as Ruptly GmbH. Facebook submitted evidence that Ruptly is a subsidiary of RT (formerly Russia Today), which is “funded by the Russian government.” A “2017 report from the U.S. Director of National Intelligence about Russia’s meddling in the 2016 U.S. presidential election” stated that “RT is considered the ‘Kremlin’s principal international propaganda outlet.'”When Facebook temporarily suspended these pages in February 2019, “RT’s editor-in-chief, Margarita Simonyan, tweeted…: ‘Facebook has blocked our projects with billions of views!!!’ “Naouai’s reply declaration also states that while she is a United States citizen, she lived for years in Moscow, was employed by Russia Today, and hosted an opinion show for RT called “In the Now.”

This is a considerable amount of evidence in Facebook’s favor, and Maffick does not meaningfully contest it. Rather than challenging this evidence directly, Maffick relies almost entirely on declarations by Naouai, its CEO. For the most part, the declarations offer purely conclusory statements to the effect that Maffick is free and clear of Maffick Media and Russia. For example, Naouai avers that she “promptly formed a Delaware limited liability company called Maffick LLC” after moving to Los Angeles in June 2019. She states that while she “chose to continu[e] using the ‘Maffick’ name for the new LLC, Maffick LLC is not related to or associated with Maffick Media (or Ruptly).” Naouai also declares that “Maffick is not controlled operationally or editorially by the Russian government or by Russian state entities or officials,” and further, “RT does not exercise control over me, nor does it exercise control over the content on Maffick’s channels.”

This evidence is little more than ipse dixit from a party-affiliated declarant. In effect, Maffick contends that it is likely to succeed on the merits because its CEO says so. That is far from enough to establish a likelihood of success on the merits, particularly in light of the largely undisputed counter-evidence Facebook tendered.

This is not to say that Facebook has proven truth as a defense, which it was not required to do in opposition to the TRO, or that Maffick has no hope of prevailing on any of its claims. It means only that Maffick has not carried its burden of demonstrating a probability of success on the merits that might justify the extraordinary relief of an injunction….

In light of this determination of the merits issue, the Court need not reach Facebook’s argument that the Russian state media label is a non-actionable opinion. The Court also declines to formally rule on Facebook’s defensive argument that the proposed injunction would be an unconstitutional prior restraint. The TRO application has been denied for more straightforward reasons, and so definitively deciding the constitutional question Facebook poses at this time is not absolutely necessary….

The balance of the equities tips in Facebook’s favor, if anything. As the Ninth Circuit concluded in Garcia, the plaintiff’s “thin copyright claim” did not outweigh the “historical and heavy presumption against” prior restraints. So too here, where Maffick asks to restrain Facebook’s speech on uncompelling evidence of falsity. The Court also notes the public interest served by Facebook’s notices to “help its users better understand the sources of news content they see on Facebook” which can help them “make informed decisions about what they are reading.” The absence of proof that the balance of hardships tips sharply in Maffick’s direction further underscores that an injunction is not warranted, particularly with respect to the “serious question” inquiry….

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A teen in Oklahoma City reportedly died in August of an overdose of Benadryl pills, and this tragedy is fueling yet another social media “challenge” panic. Are teens really trying to convince other teens to take tons of allergy pills to get high?

As with all of these social media panics that start bouncing around the web and local news networks, this story has kernels of truth to it while suggesting a trend that is probably exaggerated. Remember the “Tide Pod challenge?” Some teens did genuinely post videos of themselves eating Tide Pods, and there was a temporary increase in calls to poison control for laundry detergent ingestion. But the kind of national panic that led to involvement by fearmongering lawmakers was just completely over-the-top relative to the actual risks.

Similarly, the “Benadryl Challenge” starts with something real. Three teens in Texas in May sought medical treatment after overdosing on Benadryl. The hospital, Cook Children’s Hospital at Fort Worth, posted on their blog that the teens got the idea from a TikTok video that told them they could get high and hallucinate if they took several Benadryl pills. One girl took 14 of them and needed medical treatment.

The Fort Worth Star-Telegram and McClatchy News reached out to TikTok and were told that, yes, the company had removed content from the platform that was violating their community guidelines by encouraging people to take excessive amounts of Benadryl. So TikTok acknowledged the videos existed and has removed them.

Fast forward to the end of August. On August 28, Oklahoma City news outlet KFOR reported that a 15-year-old girl actually died from overdosing on Benadryl, ostensibly because she “fell victim to what’s been called the Benadryl Challenge on Tik Tok,” according to KFOR’s report. The story has bounced around several media sites now, including Newsweek and the U.K. Daily Mail.

The attribution for the cause of death comes from a Facebook post that has been subsequently deleted. The U.S. Sun and the New York Post identify the girl as Chloe Phillips, a sophomore at Blanchard High School, who died on August 21. The Facebook post apparently comes from her Great-Aunt Janette Sissy Leasure who blamed the “Benadryl Challenge”

“This needs to stop taking our kids or putting them in the hospital,” she wrote.

KFOR’s reporting, however, leaves out any attribution and does not provide any actual comments from her family about the girl’s death. KFOR interviewed Scott Schaeffer, director of the Oklahoma Center for Poison and Drug Information, who explained to reporter Cassandra Sweetman how consuming large amounts of Benadryl can cause heart problems and seizures along with those hallucinations.

One might read Sweetman’s story and assume, then, that Schaeffer knew about what happened with Phillips and was doing his job informing the public. That assumption, however, would be incorrect. Schaeffer subsequently told Reason that he actually had no direct knowledge about the incident KFOR reported.

Furthermore, in an email, Schaeffer said, “[U]pon review of our records, [we] have found no cases that appear to have been inspired by the ‘Benadryl Challenge.'”

Sweetman has not responded to an email from Reason seeking attribution for the girl’s death and the circumstances behind it.

That there’s very little evidential attribution that a teen girl in Oklahoma actually died as a result of a TikTok video hasn’t stopped the story from going viral. And each story’s sole example of this “trend” points to the same overdoses of the teens in Fort Worth and videos that TikTok has already removed. (A company representative told Forbes they’re keeping an eye out for any new videos that might get posted.)

This is not a “trend.” It is, however, an easy way for media outlets to sow another round of panic and paranoia over social media and to convince stressed out parents that social media platforms and new technologies pose a danger to their kids.

While it’s true that there have been a small number of videos on TikTok encouraging Benadryl abuse, and that three teens in Texas decided to try it, there is actually very little evidence that a “Benadryl Challenge” is something young people are doing (note the lack of actual links to TikTok videos in all this coverage) and so far, it’s unclear whether a teen in Oklahoma City actually died as a result of it.

What is true is that many, many media outlets have decided to use a deleted Facebook post as factual evidence of a widespread pandemic of teens deliberately attempting to overdose on allergy medication.

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In 2018, Florida schools saw a hiring surge for police officers. As a result, a new study says, the number of school arrests—which had been declining for years—suddenly started to rise. There was also a sharp increase in the use of physical restraint against students.

“The presence of law enforcement in schools was related to increases in the number of behavioral incidents reported to the state, the number of such incidents reported to law enforcement, and student arrests,” the report says. “The results suggest a need to reconsider whether law enforcement should be present in schools, and, if they are, how they can be implemented in a way that minimizes unnecessary exposure of students to law enforcement and arrests.”

The study was conducted by F. Chris Curran, director of the Education Policy Research Center at the University of Florida. It comes as school districts across the country, reponding to demands for policing reforms, are reconsidering the use of school resource officers (SROs).

Florida in particular has rapidly increased the number of police patrolling its school hallways in the last two years. After the 2018 mass shooting at a high school in Parkland, the state legislature passed a law requiring every K–12 school in the state to have a police officer or armed guardian. The law more than doubled the number of SROs in Florida schools. The majority of those new hires were assigned to elementary schools.

Florida has also been the site of several recent viral videos of small children being arrested. Last month, body camera footage emerged showing officers in Key West, Florida, trying and failing to handcuff an eight-year-old boy, whose wrists were too small for the cuffs. An Orlando SRO made headlines last September when he arrested a six-year-old girl. 

As Reason reported in June, civil liberties groups and disability advocates have been warning that the hiring surge has led to a disturbing number of arrests of children. The new study bears out at least some of their concerns. It found that the presence of SROs “predicted greater numbers of behavioral incidents being reported to law enforcement, particularly for less severe infractions and among middle schoolers.” While overall youth arrests in the state declined by 12 percent, the number of youth arrests at school increased 8 percent.

The study reported that police arrested elementary-aged children 345 times during the 2018–2019 school year. It also found four times as many incidents of physical restraint in 2018–2019 as there were in the previous year.

Groups like the American Civil Liberties Union (ACLU) and Southern Poverty Law Center (SPLC), have long contended that SROs contribute to the “school-to-prison pipeline” and lead to more arrests and harsher discipline, especially against minority students and students with disabilities. The study found that the increase in arrests was mostly attributable to increases in arrests of white students, while arrests of black students continued to decrease, though blacks are still disproportionately represented among student arrests.

The study’s conclusions broadly track with recent findings by researchers at the University of Maryland and the firm Westat, who studied several dozen middle and high schools in California and found that that increasing the number of SROs led to both immediate and persistent increases in the number of drug and weapon offenses and the number of suspensions and expulsions of students.

The SPLC and ACLU are calling on the state to repeal the 2018 law mandating SROs in every school.

“Florida is failing to meet the needs of its students,” Michelle Morton of the Florida ACLU said in a press release. “The security measures implemented by our state due to the fear of mass shootings have created school environments that are not conducive to learning.”

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