In a June 23 ruling in Huckabee v. Meta Platforms, Inc., authored by Third Circuit Judge Peter Phipps and joined by Judges Arianna Freeman and Emil Bove:
Mike Huckabee is a Baptist minister, the former governor of Arkansas, a twice-run presidential hopeful, a New York Times best-selling author, a nationally syndicated radio and television host, and the current United States Ambassador to Israel.
Between April and June 2024, three distinct advertisements on Facebook used his name, image, and likeness to promote cannabinoid products, commonly known as CBD. One ad claimed Huckabee had left his role as a television show host on Trinity Broadcasting Network, a Christian-oriented network, to “pursue a greater purpose” by promoting CBD products. In another, Huckabee appeared to discuss his health struggles and a miracle that purportedly helped him turn his life around, crediting CBD products.
A separate advertisement contained a link that, when clicked, led to a site that appeared to be Fox News, though it was not. That linked page carried a story mentioning Huckabee’s name, image, and likeness and stating that he was leaving his TV program due to health issues from an autoimmune disease, and that “as a God-fearing Christian,” he endorsed “CBD [as] the future of medicine in America,” claiming it was “more effective than similar offerings from … ‘Big Pharma’ Companies.” Each ad was created by a third party without Huckabee’s permission, and Facebook was compensated to present these messages to its users.
The advertisements performed well commercially: after viewing them, numerous Huckabee fans purchased the CBD products. Huckabee learned of the ads around May 2024, and Facebook removed them in June 2024. This was not Facebook’s first encounter with CBD advertising that misused the names, images, or likenesses of public figures. Previously, the platform hosted unauthorized CBD ads featuring media personalities such as Laura Ingraham, Jeanine Pirro, and Sean Hannity, with coverage by news outlets.
Huckabee brought suit under Arkansas’s Frank Broyles Publicity Rights Protection Act of 2016, which shields social media platforms from liability so long as they lack “actual or constructive knowledge of the unauthorized commercial use of a person’s name, image, or likeness.” He pointed to several elements as sufficient to plead a plausible claim of such knowledge:
- Meta sells advertisements;
- Meta allows advertisers to invest more to amplify those advertisements;
- Huckabee is a nationally recognizable public figure;
- Huckabee has long opposed marijuana and its derivatives—CBD included;
- Meta hosted CBD advertisements using Huckabee’s name, image, or likeness without permission;
- One of those ads featured a link to a site posing as FoxNews.com;
- Meta approved the advertisements;
- Meta has approved CBD ads bearing counterfeit endorsements from other media figures since at least 2021; and
- Meta’s approval and ongoing maintenance of the Huckabee ads occurred with actual malice or, at minimum, with reckless disregard for their truthfulness or accuracy.
The Third Circuit held that Huckabee sufficiently alleged constructive knowledge:
As a baseline, the ads rest on a premise in which Huckabee—an established public figure and someone who has long opposed marijuana and its derivatives—appears to endorse CBD products. While such a pronounced reversal can be persuasive, in an advertising context it also raises questions about the authenticity of the new stance. Those questions alone are not enough to infer that Meta possessed constructive knowledge of the misuse of Huckabee’s name, image, or likeness.
The amended complaint attempts to reinforce this inference by noting that Facebook had previously hosted similar fraudulent CBD ads using other public figures’ names and likenesses, and that media outlets reported on those episodes. This helps, but even taken together, those allegations do not by themselves cross the plausibility threshold.
Most importantly, however, the complaint asserts that one of the Facebook ads linked to a site falsely claiming to be a Fox News article. That fraudulent link, combined with the unusual pairing of Huckabee with CBD and the prior fraudulent CBD advertisements on Facebook, suffices to allege that Meta was plausibly “aware of facts or circumstances” from which the ads’ misuse of Huckabee’s name, image, or likeness was “apparent.”
Note that Third Circuit precedent (Anderson v. TikTok, Inc. (3d Cir. 2024)) treats right-of-publicity claims as excluded from § 230 protection due to that statute’s carve-out for intellectual-property claims, which likely explains why the court allowed the Arkansas right-of-publicity claim to proceed.
