Background
Mike Huckabee, the former Arkansas governor and Fox News contributor, began noticing something alarming on Facebook: advertisements featuring his name, photograph, and likeness promoting CBD products — products he has never endorsed, indeed products he has spent his career opposing as a lifelong opponent of marijuana and its derivatives. The ads were fraudulent, created by third parties to lure consumers into believing a prominent conservative politician had endorsed a cannabis product.
In July 2024, Huckabee sued Meta Platforms, Inc. in the District of Delaware, invoking Arkansas’s Frank Broyles Publicity Rights Protection Act — a state law that gives individuals the right to control the commercial use of their name, image, voice, signature, and likeness. Huckabee alleged that Meta knew or should have known the CBD endorsement advertisements were fake, yet knowingly hosted and distributed them anyway. U.S. District Judge Gregory Williams dismissed the case, concluding that the complaint’s allegations were insufficient to support an inference that Meta had notice the ads were unauthorized. Huckabee appealed.
The Court’s Holding
The Third Circuit reversed and remanded. A three-judge panel held that Huckabee’s allegations, accepted as true at the pleading stage, were sufficient to plausibly allege that Meta knew or should have known the ads were fraudulent — the key element for stating a claim under the Frank Broyles Act. The panel identified three specific allegations that, taken together, created a plausible inference of constructive knowledge:
First, the ads were premised on the alleged endorsement of CBD products by a public figure who is “a lifelong opponent of marijuana and its derivatives.” A platform that hosts billions of pieces of content is not excused from basic plausibility review of ads claiming that a well-known anti-cannabis politician has had a change of heart and is now promoting CBD supplements.
Second, Meta had previously hosted similar fraudulent advertisements using the names and likenesses of other media personalities — and news outlets had reported on those incidents. A repeat pattern of hosting fake celebrity endorsement ads, with documented public reporting of the fraud, undermines any claim that Meta lacked reason to know about the problem.
Third, one of the ads prominently featured a link to a fake Fox News website — a red flag easily detectable by a platform capable of screening URLs and content.
The panel found that these three combined factors were sufficient at the Rule 12(b)(6) stage to reverse the district court’s dismissal and return the case for further proceedings. The court did not opine on whether Section 230 of the Communications Decency Act might independently bar the claims; that issue remains open on remand.
Key Takeaways
- Celebrity + obvious implausibility = plausible notice: An ad claiming a well-known public figure endorses something diametrically opposed to their career positions is the kind of content that may plausibly put a platform on constructive notice of fraud — at least at the pleading stage.
- Repeat patterns of fake ads are probative: A platform’s prior experience hosting similar fraudulent ads using other celebrities’ likenesses, documented in news coverage, contributes to an inference that the platform knew or should have known future similar ads were also fake.
- Fake external URLs are a red flag: An ad that links to a spoofed news site (a fake Fox News page) provides a detectable signal of fraud that a sophisticated platform can reasonably be expected to catch.
- Frank Broyles Act (Arkansas) reach: Arkansas’s right of publicity statute can be applied to a major social media platform even when sued outside Arkansas, illustrating the reach of state publicity-rights laws to national platforms.
- Section 230 left for remand: The Third Circuit did not decide whether the Communications Decency Act § 230 bars the claims; that will be the next battleground on remand.
Why It Matters
AI-generated deepfakes and synthetic celebrity endorsements are flooding social media platforms. This decision adds a meaningful threat to platforms that passively host fake-endorsement content: if there are obvious red flags that a particular celebrity would never have authorized such an ad — like Huckabee endorsing cannabis — a plaintiff may have enough to survive a motion to dismiss.
The ruling is particularly significant for right-of-publicity practitioners because it applies Arkansas’s Frank Broyles Act, one of the newer and more expansive state publicity-rights statutes (enacted in part to protect the legacy rights of the famous Razorbacks football coach). The case also keeps alive the question of whether Section 230 immunity extends to platforms that host fraudulent advertising content — a question the 2024 Third Circuit Huckabee ruling from a parallel docket suggested might have limits when platform algorithmic amplification is involved.
For brands and public figures: this case signals that celebrity and political figures whose identities are hijacked for fake product ads may have viable claims against social media platforms if they can identify red flags the platforms could have detected. For platforms: the decision underscores the risk of hosting conspicuously implausible celebrity-endorsement ads without basic screening.