Sen. Warren's Asking Amazon to Stop Carrying Robert F. Kennedy Jr.'s COVID Book Likely Not Unconstitutional

So a federal judge held yesterday.

From Judge Barbara Rothstein's opinion yesterday in Kennedy v. Warren (W.D. Wash.), which strikes me as consistent with the precedents:

Plaintiffs Robert F. Kennedy, Jr., Joseph Mercola, Ronald Cummins, and Chelsea Green Publishing, Inc. ("Chelsea Green") brought a motion seeking a preliminary injunction against Defendant Senator Elizabeth Warren, in both her individual and official capacity, claiming that Defendant Warren violated Plaintiffs' First Amendment rights when she wrote a letter to Amazon criticizing a book Plaintiffs had published….

On May 16, 2021, Chelsea Green published The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, a book co-authored by plaintiffs Mercola and Cummins, and featuring a foreword by plaintiff Kennedy. The book was or is sold by Amazon, Barnes & Noble, and other unspecified booksellers. According to Plaintiffs, the book was at one point classified as a bestseller by USA Today and the Wall Street Journal. Plaintiffs describe the book as "sharply condemn[ing] government COVID policies, including lockdowns and vaccine mandates" and "cit[ing] scientific studies and highly credible news sources for the facts it reports."

On September 7, 2021, Defendant Warren wrote a letter to Amazon that described The Truth About COVID-19 as containing "misinformation about COIVD-19 vaccines and treatments." The letter criticized Amazon for selling and effectively promoting the book via the algorithms that govern its website's search engine and "Best Seller" rankings. For example, searches on Amazon.com for generic terms like "COVID-19" and "vaccine" often yielded Plaintiffs' book as the first result. Additionally, the book was labeled a "Best Seller" on the site and ranked as the "#1 Best Seller" in the "Political Freedom" subcategory of books. Defendant Warren's letter also identified several similar books, not authored by Plaintiffs, that were labeled as bestsellers and that also appeared near the top of COVID-19- or vaccine-related search results.

Defendant Warren characterized this apparently favorable treatment of Plaintiffs' and other books as "peddling misinformation" and as part of a "pattern and practice of misbehavior" that amounted to "an unethical, unacceptable, and potentially unlawful course of action" by Amazon. Defendant Warren claimed that conspiracy theories, vaccine misinformation, and "false cures" related to COVID-19, like those allegedly contained in the books the letter identified, "have led to untold illnesses and deaths."

Defendant Warren's letter concluded by "ask[ing] [Amazon to] perform an immediate review of [its] algorithms and, within 14 days, provide both a public report … and a plan to modify these algorithms." The letter also asked Amazon to respond to four questions about its search algorithms and "Best Seller" labels, so that Sen. Warren could "fully understand Amazon's role in facilitating misinformation about COVID-19 and its actions to address the issue."

On September 8, 2021, one day after Defendant Warren sent her letter to Amazon, the letter was published in an official press release from Defendant Warren's office. According to Plaintiffs, the letter was "widely publicized in the national media." Two days later, on September 10, 2021, Barnes & Noble notified Chelsea Green by email of its "editorial decision" to stop selling The Truth About COVID-19. Although Amazon continued to sell the book, Plaintiffs claim that their analysis of Amazon's website indicates that the company is "covertly demoting, downgrading, or otherwise suppressing The Truth About COVID-19" without informing Plaintiffs. Plaintiffs also allege that "[m]ost if not all independent booksellers are refusing to sell [their book.]" …

To succeed on the merits of their claims, Plaintiffs must show that Defendant Warren's letter acted as an unconstitutional restriction on speech protected by the First Amendment. Plaintiffs argue their claims are likely to succeed under the Supreme Court's Bantam Books v. Sullivan (1963) decision.

In that case, the Rhode Island legislature had created a commission to police obscenity in publications "tending to the corruption of the youth" pursuant to an existing statute prohibiting such obscenity. The commission was empowered "to investigate and recommend the prosecution of all violations of said [statute]." The commission itself did not have the power to prosecute violators. Instead, the commission's practice was to identify books it found objectionable and inform the distributors of those books via a written notice. The notice "thanked [the bookseller], in advance, for his 'cooperation' … usually reminding [him] of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity." Additionally, the commission's list of objectionable publications was "circulated to local police departments, and [the bookseller] was so informed in the notices." This "invariably" led to "police visitations."

The Supreme Court found that the commission's "informal censorship"—using the threat of legal sanctions to coerce booksellers into removing obscene books—was unconstitutional because it effectively bypassed "the safeguards of the criminal process." The Court noted that "[p]eople do not lightly regard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." The force of the commission's threats essentially deemed booksellers' guilty of circulating obscene material without having to prosecute them.

The Court finds that Bantam Books bears little resemblance to the case before it. Unlike Bantam Books, this case involves no regulatory body, no criminal statute, and no threat of police or other enforcement. Plaintiffs will have serious difficulty establishing that a letter from a single United States Senator is akin to a statutorily created system of prior administrative restraints whose "capacity for suppression of constitutionally protected publications is far in excess of that of the typical licensing scheme."

First, the "thinly veiled threats" in Bantam Books were very thinly veiled. The commission's notices were "phrased virtually as orders" and made explicit reference to the attorney general, the police, and the possibility of criminal prosecution. Here, Defendant Warren's alleged threat is derived primarily from her statements that the circulation of The Truth About COVID-19 was "potentially unlawful" and that COVID-19 misinformation has "led to untold illnesses and death." Plaintiffs argue that booksellers could interpret these statements as threatening them with "legal liability for wrongful death or homicide."

Plaintiffs will have difficulty establishing that this is a reasonable or likely interpretation of Defendant Warren's letter. The two noted phrases are not in the same paragraph and, even if they were, equating them to an accusation of homicide requires a vivid imagination. Furthermore, the vast majority of Defendant Warren's letter is dedicated to persuasion—by arguing, for example, that "[o]ther major technology companies have recognized their role in propagating misinformation" and, unlike Amazon, taken steps to address it.

Next, Defendant Warren is far removed from the power to legally punish booksellers for continuing to sell The Truth About COVID-19. Although Plaintiffs are correct that "the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff [or third-party publisher] … is not necessarily dispositive," that does not mean it will not be dispositive in most cases.

In Bantam Books, the Court found that the commission's "want of power to apply formal legal sanctions" was not dispositive because the commission effectively wielded that power (and perhaps even greater power) informally. Here, it is difficult to maintain that Defendant Warren's writing a letter to Amazon is effectively wielding state regulatory power, in part because there is no such power to wield. In Bantam Books, the commission was given an express mandate by the legislature, and its threats were backed up by a statute criminalizing obscenity. In contrast, Defendant Warren does not have any unilateral investigative authority, and there is no immediate statutory basis for her statement that Amazon's practices are "potentially unlawful."

Put another way, the threat of legal sanctions can act as an unlawful restriction on speech, but a threat will only be perceived as such if there is a realistic chance the threatened action can be carried out. Plaintiffs are unlikely to successfully demonstrate that the booksellers reasonably perceived Defendant Warren's letter as a threat.

In summary, the Court finds that Plaintiffs are unlikely to succeed on the merits of their claim that Defendant Warren's letter constitutes a prior restraint on speech.

And the court also stressed that one of the remedies plaintiffs sought—that Warren publicly retract the letter—would be especially inapt for a preliminary injunction:

There is nothing "preliminary" about this remedy. Ordering Defendant Warren to retract her letter would effectively be a permanent injunction, because it cannot be undone. This injunction would not relieve Plaintiffs of irreparable harm, but rather impose it on Defendant Warren. Furthermore, to be entitled to a retraction, Plaintiffs would need to have actually prevailed on the merits—not just shown they are likely to prevail (which they also have not done). Thus, the Court finds that Plaintiffs have failed to establish that, in the absence of preliminary injunction, they will suffer irreparable harm, and the balance of equities disfavors a remedy that would irreparably harm Defendant Warren.

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.