A federal appeals panel found no First Amendment violations on the part of U.S. Sen. Elizabeth Warren or Amazon stemming from restricted access to an anti-vaccine book from Robert F. Kennedy Jr., a recently-announced Democratic presidential candidate.
The root issue is a September 2021 letter Warren sent to Amazon asking the retail giant to tweak its algorithms to stop directing shoppers to Kennedy’s book, “The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal.”
Kennedy sued Warren in federal court in Washington, joined as a plaintiff by his co-authors, Dr. Jospeh Mercola and Ronald Cummins, as well as Chelsea Green Publishing.
U.S. District Judge Barbara Rothstein refused to issue a preliminary injunction, which would’ve forced Warren to remove the letter from her website and issue a public retraction. Kennedy challenged that ruling before the U.S. Ninth Circuit Court of Appeals. Judge Paul Watford wrote the opinion, filed May 4; Judge Michelle Friedland concurred, as did Judge Mark Bennett, who wrote a special concurring opinion.
According to Watford, Kennedy’s lawsuit argued “Warren crossed a constitutional line dividing persuasion from intimidation,” but the panel sided with Judge Rothstein.
In her letter, Warren said her staff found Kennedy’s book and others “based on falsehoods about COVID-19 vaccines and cures” among Amazon’s top results for pandemic-related search terms. She noted the U.S. Food and Drug Administration had ordered Mercola to stop selling “ineffective and unauthorized treatments on his website” and cited numerous federal investigations, including one regarding false advertising allegations that ended with a $2.95 million consumer settlement.
The panel agreed the plaintiffs demonstrated standing through sufficient evidence regarding the reputational damage Warren’s letter inflicted and said the injunction they requested would “likely redress” those injuries. But on the merits of their appeal, Watford continued, the arguments fell short.
“The crux of the plaintiffs’ case is that Sen. Warren engaged in conduct prohibited under the Supreme Court’s (1963) decision in Bantam Books. v. Sullivan, by attempting to coerce Amazon into stifling their protected speech,” Watford wrote, explaining that opinion turned on a finding Rhode Island engaged in a “system of informal censorship.”
Warren’s letter, however, did not reach that threshold. As a politician, the panel said, Warren is allowed to express views and rally support. Although Warren asked Amazon to review its algorithms and make a public report about modification of “practices regarding COVID-19 misinformation,” Watford wrote, that was a request and not a command, and “nothing in Sen. Warren’s call to action directly suggests that compliance was the only realistic option to avoid government sanction.”
The plaintiffs focused on Warren’s use of the phrase “potentially unlawful” to describe Amazon’s algorithms, as evidence she crossed from persuasion to coercion, but the panel said the phrase is not so heavy when read in context, as it more likely refers to “sale of inappropriate products” like unauthorized K95 masks, an incident resolved before the letter regarding the book.
“A First Amendment problem arises only if the official intimates that she will use her authority to turn the government’s coercive power against the target if it does not change its ways,” Watford wrote, adding Warren individually “has no unilateral power to penalize Amazon for promoting” the book.
The panel noted a lack of evidence showing Amazon changed its algorithms in direct response to Warren’s letter and noted the company’s “reputational risks in the court of public opinion” during that time frame.
In Bennett’s concurrence, he said the dispositive issue was whether Judge Rothstein abused discretion in denying a preliminary injunction. He differed from the majority by implying “some aspects of the letter could be interpreted as coercive by a reasonable reader.”
Although Bennett agreed with the most likely reading of the “potentially unlawful” phrase in full context, as well as Warren’s lack of unilateral authority, he said it would be reasonable to think Warren was lumping algorithms into her suggestions about Amazon’s practices or that she could take specific action on Amazon, such as a criminal referral to the Department of Justice or pushed for Senate hearings and subpoenas.
“Although the letter does not threaten specific consequences if Amazon failed to comply with this request; as the majority notes, we do not require a government official to list specific consequences in order to find a constitutional violation,” Bennett wrote.
Representing the plaintiffs were Jed Rubenfeld, of New Haven Connecticut, and Arnold & Jacobowitz, of Redmond, Washington.
Warren was represented by federal lawyers, including the office of U.S. Attorney Nicholas Brown and the DOJ, along with attorneys from the Elias Law Group, of Seattle and Washington, D.C.