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On June 24, 2026, in a non-precedential opinion, the Third Circuit revived claims asserted by Michael Huckabee, former Arkansas governor, regarding social media posts that improperly claimed that Huckabee endorsed CBD products. The claims were asserted under an Arkansas right of publicity statute, the Frank Broyles Publicity Rights Protection Act, which protects against the use of a person’s name, image, or likeness.1
Huckabee sued the defendant social media platform operator on July 1, 2024 in the District of Delaware, alleging that CBD advertisements that ran between April and June 2024 improperly used Huckabee’s name in violation of the Arkansas right of publicity statute, among other claims. The District Court dismissed the original complaint (and did not allow an amended complaint), finding that the complaint lacked plausible allegations of actual or constructive knowledge required under the Arkansas right of publicity statute. While the District Court found the complaint allegations made it possible that the defendant knew about the ads, and that the social media platform operator was not entitled to immunity under Section 230 of the Communications Decency Act, the court nonetheless determined that the allegations did not make it plausible that the defendant had actual or constructive knowledge of the unlawful advertisements.
On appeal, the Third Circuit overturned the dismissal under the Arkansas right of publicity statute. The Third Circuit found that, although the District Court properly determined that allegations that the defendant “approved and maintained these advertisements with actual malice or, at least, with reckless disregard” were conclusory, the District Court did not “credit other allegations and make reasonable inferences therefrom as required.” The Third Circuit noted that the legitimacy of the advertisements could have been questioned because Huckabee, who was shown in the advertisements in question endorsing CBD products, had a long history of opposing CBD. Although this fact alone was not sufficient, the Third Circuit then turned to allegations that one of the social media advertisements linked to a website that falsely claimed to be a news article from a prominent news organization discussing Huckabee’s purported endorsement of the CBD products.
It was that link from the ad to a fictitious news article, as well as Huckabee’s unlikely association with CBD and other false CBD advertisements, that were sufficient to support an allegation that the defendant was plausibly “aware of facts or circumstances” that the misuse was “apparent.” The Third Circuit therefore vacated and remanded the dismissal under the Arkansas right of publicity statute for further consideration of the remaining challenges as to the complaint’s adequacy.
Footnote
1. Arkansas Code § 4-75-1108(a) states that “a person who commercially uses the name, voice, signature, photograph, or likeness of an individual is liable to the holder of the property right provided by this subchapter for damages and disgorgement of profits, funds, goods, or services if the commercial use was not authorized under § 4-75-1104(c).” The Act creates an exception for service providers who do not have actual knowledge, § 4-75-1110(F)(1), or are not aware of “facts or circumstances from which a violation of this subchapter is apparent,” § 4-75-1110(F)(2).
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