Pleading Constructive Knowledge Under Arkansas’s Broyles Act: “Red Flags” Can Defeat a Service-Provider Exemption at the Motion-to-Dismiss Stage

1. Introduction

Mike Huckabee v. Meta Platforms, Inc. (3d Cir. June 23, 2026) arises from allegedly fraudulent CBD advertisements that appeared on Facebook and used Mike Huckabee’s name, image, and likeness without his permission. Huckabee sued Meta under Arkansas’s Frank Broyles Publicity Rights Protection Act of 2016 (the “Broyles Act”) and also asserted common-law claims.

The central dispute on appeal narrowed to one statutory question: because Meta was treated as a “service provider,” could Huckabee plausibly plead that Meta had actual knowledge or constructive knowledge of the unauthorized commercial use, as required to overcome the Broyles Act’s service-provider exemption, Ark. Code Ann. § 4-75-1110(a)(1)(F)?

Two procedural rulings were also critical: (i) the District Court dismissed with prejudice after granting a Rule 12(b)(6) motion; and (ii) it later denied Huckabee’s Rule 59(e) motion seeking to reopen the judgment so he could file an amended complaint adding more detailed “knowledge” allegations.

2. Summary of the Opinion

  • Rule 59(e) denial affirmed: The Third Circuit held that Huckabee could not use Rule 59(e) to introduce improved allegations that could have been presented before judgment.
  • Dismissal of the Broyles Act claim vacated in part and remanded: On the original complaint (not the proposed amendment), the Third Circuit held that Huckabee plausibly alleged Meta’s constructive knowledge under Ark. Code Ann. § 4-75-1110(a)(1)(F)(ii), largely because one ad linked to a website falsely purporting to be a Fox News article, combined with other pleaded “red flags.”
  • Scope of remand: The case was remanded for consideration of Meta’s remaining argument that the complaint did not plausibly allege that Meta itself “commercially use[d]” Huckabee’s likeness for commercial benefit under Ark. Code Ann. § 4-75-1108(a).

3. Analysis

A. Precedents Cited

1) Huckabee v. Meta Platforms, Inc., 2024 WL 4817657 (D. Del. Nov. 18, 2024)

The Third Circuit reviewed—and partially rejected—the District Court’s plausibility analysis. The District Court had properly disregarded conclusory assertions of “actual malice” and “reckless disregard,” but the appellate panel held the court did not adequately draw reasonable inferences from the remaining factual allegations, particularly the pleaded fake Fox News link.

2) Huckabee v. Meta Platforms, Inc., 2025 WL 1744357 (D. Del. June 24, 2025)

The Third Circuit relied on the District Court’s observation that Huckabee had not submitted a proposed amended complaint before entry of judgment, reinforcing the conclusion that Rule 59(e) was not the proper vehicle for a post-judgment “second try” based on information that was available earlier.

3) Anderson v. TikTok, Inc., 116 F.4th 180 (3d Cir. 2024)

The District Court had cited Anderson in rejecting Meta’s Section 230 argument at the motion-to-dismiss stage. Although the Third Circuit’s opinion here did not decide Section 230, its discussion situates the Broyles Act question in a litigation landscape where platforms often press Section 230 early. The practical implication is that, even when Section 230 is not resolved at the pleadings stage, state-law “knowledge”-based exemptions can become decisive.

4) Schaffner v. Monsanto Corp., 113 F.4th 364 (3d Cir. 2024)

The panel invoked Schaffner to explain that choice-of-law challenges were forfeited because the parties litigated the case under Arkansas law without dispute. This matters because the court treated the Broyles Act’s text—especially the service-provider exemption—as the operative rule set.

5) Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)

Exxon Shipping supplied the controlling principle that Rule 59(e) cannot be used “to relitigate old matters” or to present evidence/arguments that “could have been raised prior to the entry of judgment.” The Third Circuit used this to affirm denial of Rule 59(e), emphasizing finality and orderly pleading practice.

6) LabMD, Inc. v. Boback, 47 F.4th 164 (3d Cir. 2022)

The panel cited LabMD for the procedural norm: a plaintiff seeking leave to amend should submit a draft amended complaint so the court can evaluate futility. The citation reinforced the idea that Huckabee’s failure to tender a proposed amended complaint before judgment undermined his later Rule 59(e) request.

7) Gibson v. State Farm Mut. Auto. Ins., 994 F.3d 182 (3d Cir. 2021) and Banister v. Davis, 590 U.S. 504 (2020)

These cases supported the standard and limits of post-judgment reconsideration. Gibson was cited for the de novo review applied here, while Banister underscored that courts generally will not consider new matters that could have been raised earlier.

8) Lutz v. Portfolio Recovery Assocs., LLC, 49 F.4th 323 (3d Cir. 2022) and Connelly v. Lane Constr. Corp., 809 F.3d 780 (3d Cir. 2016)

These cases supplied the Third Circuit’s pleading framework: courts must disregard legal conclusions and “formulaic recitation[s]” of elements (Connelly), but must accept well-pleaded facts as true and draw reasonable inferences for the plaintiff when assessing plausibility (Lutz). The appellate reversal on the Broyles Act claim turned on faithful application of this inference-drawing step.

B. Legal Reasoning

1) The Broyles Act’s structure: liability plus a service-provider carveout

The opinion reads the Broyles Act in two layers:

  1. Core liability rule: A person who “commercially uses” an individual’s name, photograph, or likeness without authorization is liable for damages and disgorgement. Ark. Code Ann. § 4-75-1108(a).
  2. Service-provider exemption with a knowledge gateway: A “service provider of a system or network” is generally exempt unless it (i) has “actual knowledge” a likeness is in violation, or (ii) is “aware of facts or circumstances from which a violation ... is apparent.” Ark. Code Ann. § 4-75-1110(a)(1)(F).

On appeal, the parties agreed Meta qualified as a “service provider,” so the case turned on whether Huckabee plausibly pleaded knowledge sufficient to overcome the exemption.

2) Rule 59(e): finality over post-judgment re-pleading

The court treated Rule 59(e) as a narrow device, not an opportunity to improve a pleading after losing a dismissal with prejudice. Because Huckabee could have supplied his enhanced “Meta review systems / policy standards / prior admissions” allegations earlier, the Third Circuit held the District Court properly refused to reopen the judgment.

3) Rule 12(b)(6): constructive knowledge plausibly alleged by “red flags”

The core doctrinal move in the opinion is its treatment of “constructive knowledge” under Ark. Code Ann. § 4-75-1110(a)(1)(F)(ii). The court accepted that:

  • The “stark change of heart” premise (a “lifelong opponent” of marijuana/CBD allegedly endorsing CBD) can raise doubts but, alone, may not make unauthorized use “apparent.”
  • Allegations of prior, similar fraudulent CBD ads featuring other celebrities and media coverage help, but may still be insufficient alone to make a new violation “apparent.”
  • The pleaded fake Fox News link is the differentiator: The allegation that one ad linked to a website “falsely purporting to be a Fox News article,” when combined with the unusual endorsement narrative and Meta’s alleged history with similar scams, permitted a reasonable inference that Meta was “aware of facts or circumstances” making the misuse “apparent.”

In other words, the panel treated the “bogus link” as a concrete indicium of fraud that can push allegations over the plausibility threshold for constructive knowledge, even if no direct notice to the platform is pleaded at that stage.

4) Why the remand is narrow

The Third Circuit did not enter judgment for Huckabee; it restored only the Broyles Act claim past the “knowledge” obstacle based on the original complaint. It remanded for the District Court to address Meta’s other preserved statutory argument—whether the complaint plausibly alleged Meta’s own “commercial use” and commercial benefit under Ark. Code Ann. § 4-75-1108(a).

C. Impact

1) Practical pleading guidance in right-of-publicity suits against platforms

Although designated “NONPRECEDENTIAL,” the opinion is still instructive. It signals that, for Arkansas Broyles Act claims against platforms treated as service providers, plaintiffs may survive dismissal by pleading specific, objective “red flags” that make illegitimacy “apparent”—for example, a link that impersonates a major news site, paired with contextual allegations (implausible endorsement, pattern of similar scams on the same platform).

2) Litigation strategy: amend early or risk losing the chance

The Rule 59(e) holding reinforces a procedural lesson: when opposing a motion to dismiss—especially one seeking dismissal with prejudice on futility grounds—plaintiffs should tender a draft amended complaint promptly, consistent with LabMD, Inc. v. Boback. Waiting until after judgment may forfeit the ability to add known allegations.

3) Interaction with platform defenses

The decision also illustrates a layered defense environment in platform cases: even when a Section 230 argument is not accepted at the pleadings stage (as the District Court held, citing Anderson v. TikTok, Inc.), state statutory exemptions (like the Broyles Act’s service-provider carveout) can become the key battleground.

4. Complex Concepts Simplified

  • Right of publicity: A legal right (often treated as property-like) to control commercial use of one’s name, image, or likeness.
  • Service-provider exemption (Broyles Act): A statutory shield for network/system providers unless they know—or should know from obvious circumstances—that the content violates the Act.
  • Actual vs. constructive knowledge:
    • Actual knowledge means the defendant really knew of the unauthorized use.
    • Constructive knowledge means the defendant had enough warning signs that the violation would be apparent to a reasonable actor.
  • Plausibility (Rule 12(b)(6)): The complaint must allege enough concrete facts to allow a reasonable inference of liability; courts ignore mere legal labels and conclusory statements.
  • Rule 59(e): A limited post-judgment motion to alter or amend a judgment; it is not meant for presenting evidence or allegations that could have been offered before judgment.

5. Conclusion

The Third Circuit’s key contribution is its application of Arkansas’s Broyles Act knowledge gateway to a modern platform context: a pleaded constellation of “red flags”—especially a link impersonating a major news outlet—can make an unauthorized endorsement “apparent” and thus plausibly allege constructive knowledge sufficient to overcome the service-provider exemption at the motion-to-dismiss stage.

At the same time, the court firmly polices post-judgment pleading practice: Rule 59(e) is not a mechanism to supply improved allegations that were available earlier. The remand’s narrow scope leaves open the separate statutory question whether Meta’s conduct constitutes “commercial use” for its own benefit under Ark. Code Ann. § 4-75-1108(a), which will shape how far Broyles Act claims can reach when advertisements are placed by third parties but monetized by platforms.