Was Amazon 'Free to Ignore' White House Demands That It Suppress Anti-Vaccine Books?
The Biden administration's interference with bookselling harks back to a 1963 Supreme Court case involving literature that Rhode Island deemed dangerous.
In 2021, emails recently obtained by Rep. Jim Jordan (R–Ohio) show, White House officials pressured Amazon to curb the distribution of books they believed were discouraging Americans from getting vaccinated against COVID-19. As Reason's Robby Soave notes, these communications bear a strong resemblance to the Biden administration's pandemic-related interactions with social media companies such as Twitter and Facebook, which a federal appeals court deemed unconstitutional in a First Amendment case that the Supreme Court will consider during its current session. The Amazon episode is also reminiscent of a 1963 Supreme Court case that likewise involved the sale of books that government officials perceived as a public menace.
In 1956, the Rhode Island General Assembly created the Commission to Encourage Morality in Youth, which was supposed to "educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth." It was charged with "investigating situations which may cause, be responsible for or give rise to undesirable behavior of juveniles." Although the commission itself had no enforcement power, it was authorized to "recommend legislation, prosecution and/or treatment which would ameliorate or eliminate said causes."
As part of their mission, Justice William Brennan noted in Bantam Books v. Sullivan, Rhode Island's cultural watchdogs would "notify a distributor that certain books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age." One distributor, Max Silverstein & Sons, received "at least 35 such notices," which typically "thanked Silverstein, in advance, for his 'cooperation' with the Commission," noted the commission's "duty to recommend to the Attorney General prosecution of purveyors of obscenity," and informed him that "lists of 'objectionable' publications were circulated to local police departments."
To reinforce the warnings from the commission, "a local police officer usually visited Silverstein shortly after Silverstein's receipt of a notice to learn what action he had taken," Brennan noted. Silverstein got the message: In response to the notices, he stopped distributing the "objectionable" books. He did that, he testified, because he worried about "the possibility of some sort of a court action against ourselves, as well as the people that we supply." In short, Brennan said, "his 'cooperation' was given to avoid becoming involved in a 'court proceeding' with a 'duly authorized organization.'"
After four publishers sued the commission, a state court found that the effect of the notices "clearly" was to "intimidate the various book and magazine wholesale distributors and retailers," resulting in "the suppression of the sale and circulation of the books." As Brennan noted, Rhode Island's attorney general conceded that "the books listed in the notices included several that were not obscene within this Court's definition of the term." The Supreme Court agreed with the publishers that the commission's activities amounted to "a scheme of governmental censorship devoid of the constitutionally required safeguards for state regulation of obscenity" and "thus abridge[d] First Amendment liberties, protected by the Fourteenth Amendment from infringement by the States."
Writing for the majority, Brennan rejected the argument that distributors like Silverstein were free to ignore the commission's notices. The panel's actions "were performed under color of state law and so constituted acts of the State within the meaning of the Fourteenth Amendment," he wrote, adding:
These acts and practices directly and designedly stopped the circulation of publications in many parts of Rhode Island. It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact…that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications…It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.
Like Rhode Island's Commission to Encourage Morality in Youth, the White House officials who complained to Amazon about anti-vaccine books were seeking "the suppression of the sale and circulation" of constitutionally protected literature they found "objectionable." And like Silverstein, Amazon responded to official pressure, agreeing to limit the visibility of the books in search results, even though its "refusal to 'cooperate' would have violated no law."
The trouble began in March 2021, when Senior White House COVID-19 adviser Andrew Slavitt did an Amazon search and did not like what he found. "Who can we talk to about the high levels of propaganda and misinformation and disinformation [at] Amazon?" Slavitt asked the company in a March 2 email. He elaborated on that concern in a message he sent later that morning: "If you search for 'vaccines' under books, I see what comes up. I haven't looked beyond that but if that's what's on the surface, it's concerning."
An internal Amazon email sent an hour later illuminates the company's response. "We will not be doing a manual intervention today," it said. "The team/PR feels very strongly that it is too visible" and "won't fix…the long-term problem because of customer behavior associations. If we completely remove customer behavior associations it will break the search." But to mollify the White House, the Amazon official (whose name is redacted) said "the team" would "widen the search light flag for COVID-19 CDC website redirect so that it comes to the top of the page on more search keys."
The White House "will probably ask why we don't tag the content like FB/Twitter do if we aren't taking it down," the official added. "That is an option being explored but that we don't want to disclose to avoid boxing in." Worried about negative coverage by media outlets such as Fox News, the company was giving "very direct guidance to the teams to be boring and not do anything that is visible and will draw more attention." Note that Amazon already had the impression that the White House would prefer that the company simply stop selling the books it deemed dangerous.
Another internal email sent that afternoon suggested potential responses to the White House. "Our guidelines address content that is illegal or infringing, generates a poor customer experience, or that we otherwise prohibit, such as pornography," said one talking point. "Our guidelines don't specifically address content about vaccines."
The suggested answer to another White House question read: "We believe that retailers are different from social media communities which means we review the content we make available, where we make it available in our store, and how we address content that customers find disappointing. As a retailer, we provide our customers with access to a variety of viewpoints, including books that some customers may find objectionable. All booksellers make decisions about what selection they choose to offer and we do not take selection decisions lightly."
Zach Butterworth, another White House official, was impatient. Later that afternoon, he thanked an Amazon official for "your response" but added, "Five minutes ago I searched 'vaccine' on Amazon and the attached book was one of the first in the stack. When I click on the product page I don't see any CDC warning."
A week later, in anticipation of a meeting with White House officials that day, an internal email listed "Top Talking Points." One of them: "Is the Admin asking us to remove books, or are they more concerned about search results/order (or both)?" Three days after that meeting, an internal email noted that "the Books team" would be meeting on March 19 to "take a closer look at books related to vaccine misinformation" and discuss "additional steps Amazon might want to take to reduce the visibility of these titles." The message noted that the company "is feeling pressure from the White House [COVID-19] Taskforce."
A March 12 internal email described the steps Amazon already had taken. "We've had CRM [the customer relationship management team] review all titles mentioned and have worked with the teams who specialize [in] Search, Reviews, and Personalization tools," it said. "One book (out of 9) was found to violate our COVID policy and was removed. As a reminder, we did enable Do Not Promote for anti-vax books whose primary purpose is to persuade readers vaccines are unsafe or ineffective on 3/9, and will review additional handling options for these books with you….However, many of the books highlighted by [a pending Buzzfeed story] are about COVID conspiracies not vaccination, and are therefore out of scope for this policy effort. CRM plans to resume work on a broad misinformation policy again once we align on an approach for anti-vax books."
Amazon, in short, responded to White House "pressure" by dropping at least one book, making others harder to find, and mulling "a broad misinformation policy" that might extend beyond books about vaccines. Were those decisions "voluntary," as Rhode Island described Silverstein's response to its book-monitoring commission?
Unlike Rhode Island's censors, White House officials did not, so far as we know, make "thinly veiled threats to institute criminal proceedings." But that does not mean Amazon had nothing to worry about if it dismissed the Biden administration's complaints rather than changing its policies and practices to suppress the books that Slavitt et al. viewed as a threat to public health.
At the same time that White House officials were demanding that Amazon do something about "concerning" anti-vaccine books, news outlets were reporting that President Joe Biden planned to nominate law professor Lina Khan, a leading critic of the company, to the Federal Trade Commission (FTC), which he did later that month. Khan had made a splash as a law school student with a 2017 Yale Law Review article, "Amazon's Antitrust Paradox," urging a new approach to antitrust enforcement that would enable the government to target the company. In June 2021, she became chair of the FTC, which last September filed an antitrust lawsuit against Amazon.
It is hard to believe that the possibility of such legal action played no role in Amazon's eagerness to appease the Biden administration when it objected to books that the company was selling. Drawing a line between persuasion and coercion in the social media case that is now before the Supreme Court, the U.S. Court of Appeals for the 5th Circuit noted that Facebook et al. had reason to worry about "threats of adverse government action" such as "antitrust enforcement" if they failed to meet their "responsibility related to the health and safety of all Americans" as defined by federal officials, including the president himself.
You could say that Amazon, like Silverstein, "was 'free' to ignore" the government's demands. But as Justice Brennan suggested, "it would be naive to credit" that characterization.
In the end, it is not clear that the Biden administration's interference had much of an impact on the availability of anti-vaccine books on Amazon. Based on a search as sophisticated as the one that Slavitt performed back in March 2021, I can report that several titles falling into that category appear in the top results. And it may shock you to learn that "when I click on the product page I don't see any CDC warning."
