Court won't make Elizabeth Warren retract her claims about conspiracy-laden anti-vax books, in particular the one Robert F. Kennedy Jr. wrote a forward for

A federal appeals court has ruled that Sen. Elizabeth Warren has as much of a right to complain about anti-vax books as anybody else and has rejected a bid by Robert F. Kennedy Jr. and two other anti-vaxxers to make her say she's sorry she asked Amazon to stop promoting it.

In its ruling - issued in May but not made official until last week - the US Court of Appeals for the Ninth Circuit concluded that Warren was not infringing on the rights of Kennedy and his fellow writers, a supplement-pushing, homeopathy-supporting Florida doctor and a leader of the organic-consumer movement to push a book alleging Covid-19 was engineered to bring about "a world that is increasingly ruled, not by our democratic systems and institutions, but by public health fiat, carried out by politicians who rule by instilling fear and panic."

In September, 2021, Warren wrote a letter to Amazon asking the company to alter its search algorithm to stop promoting books alleging conspiracies about Covid-19 when patrons search the site - a few months after she wrote another letter to Amazon complaining how bogus N-95 mask vendors were showing up in Amazon search results. She cited the book for which Kennedy wrote the forward as a prime example of the algorithm pushing vaccine conspiracy theories:

When staff searched for terms "COVID-19" and "vaccine," the first result, presented prominently in the top left corner of the screen, was a book by Joseph Mercola and Ronnie Cummins called "The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal." Dr. Mercola has been described as "the most influential spreader of coronavirus misinformation online." Not only was this book the top result when searching either "COVID-19" or "vaccine" in the categories of "All Departments" and "Books"; it was tagged as a "Best Seller" by Amazon and the "#1 Best Seller" in the "Political Freedom" category.

The book perpetuates dangerous conspiracies about COVID-19 and false and misleading information about vaccines. It asserts that vitamin C, vitamin D, and quercetin - supplements sold on Mercola's website - can prevent COVID-19 infection, a claim with such little scientific basis that the FDA sent a letter instructing Mercola to cease selling these supplements for the unapproved and unauthorized treament of COVID-19. And the book contends that vaccines cannot be trusted, when study after study has demonstrated the overwhelming effectiveness and safety of COVID-19 vaccines.

It should come as no surprise that the book is rife with misinformation. One of the authors, Dr. Mercola, is one of the "Disinformation Dozen," a group responsible for 65% of anti-vaccine content on Facebook and Twitter. He has posted over 600 articles on Facebook casting doubt on COVID-19 vaccines and been subject to multiple federal investigations (with one false-advertising investigation leading to a $2.95 million consumer settlement). But Amazon's algorithms promoted "The Truth About COVID-19" as a best seller and top result in response to common pandemic-related search terms.

Not long after, Kennedy, Mercola, Cummins and publisher Chelsea Green Publishing of White River Junction, VT sued Warren in federal court in Washington state, alleging she was using her power as a federal official to stomp on their First Amendment rights and asking a judge to order Warren to stop doing that and to issue a public retraction of her letter to Amazon.

But in its ruling, the appeals court agreed with a lower-court judge that Warren has a right to speak about public issues and that her letter to Amazon was an attempt to "persuade" the company to change its search algorithms, not an attempt to "coerce" it - which is a key difference in cases involving statements by public officials.

The court said that part of the proof of a lack of coercion comes from the facts that Amazon did nothing to block the book or its appearance on a results page when a user searches on particular terms - and that Warren did not then follow up with pestering follow-up demands.

Here, the record contains no evidence that Senator Warren followed up on her letter in any fashion, even though Amazon continued to sell The Truth About COVID-19 on its platform.

The court continued:

The words on the page and the tone of the interaction thus suggest that the letter was intended and received as nothing more than an attempt to persuade.

The court added that, even as a US senator, Warren is only one of a hundred and she is not involved in anything related to directly regulating or bringing any sort of legal action against Amazon.

Elizabeth Warren, as a single Senator, has no unilateral power to penalize Amazon for promoting The Truth About COVID-19. This absence of authority influences how a reasonable person would read her letter. A similar letter might be inherently coercive if sent by a prosecutor with the power to bring charges against the recipient, see Carlin, 827 F.2d at 1296, or if sent by some other law enforcement officer, see Backpage.com, 807 F.3d at 233 (speculating that a letter sent by someone outside of law enforcement "would be more likely to be discarded or filed away than to be acted on”). The letter could be viewed as more threatening if it were penned by an executive official with unilateral power that could be wielded in an unfair way if the recipient did not acquiesce. See Okwedy, 333 F.3d at 342. But as one member of a legislature who is removed from the relevant levers of power, Senator Warren would more naturally be viewed as relying on her persuasive authority rather than on the coercive power of the government to take action against Amazon. ...

With respect to Amazon, there is no evidence that the company changed its algorithms in response to Senator Warren's letter, let alone that it felt compelled to do so. The plaintiffs point to the fact that, several weeks after receiving the letter, Amazon notified Chelsea Green Publishing that it would not advertise The Truth About COVID-19 even though it had promoted other Chelsea Green books in the past. This fact is unilluminating because no evidence suggests that Amazon ever advertised the plaintiffs' book before receiving the letter. Absent such evidence, it is far more likely that Amazon's decision not to advertise the plaintiffs' book was a response to widespread concerns about the spread of COVID-19 misinformation rather than a response to Senator Warren's letter. See Association of American Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1034–35 (D.C. Cir. 2022). And even if Senator Warren's letter did prompt Amazon's refusal, the decision still more plausibly reflected the company's concern over reputational risks in the court of public opinion rather than fears of liability in a court of law.

The court also rejected the argument that Warren's letter to Amazon convinced Barnes & Noble to remove the book from its database:

Senator Warren sent the letter to Amazon, and the letter criticizes Amazon's algorithms and its use of the "Best Seller" label. We doubt that Barnes & Noble officials would have read these critiques of another company's business practices and felt compelled to respond by pulling a book from its own digital shelves—an action that Senator Warren had not even requested of Amazon. Again, it is more likely that Barnes & Noble reassessed its policies either because it was persuaded by Senator Warren's critique or, alternatively, because it feared the letter might spark a public backlash that would spread beyond Amazon. Either of these effects is consistent with an elected official's permissible attempts to shape public discourse and change market practices.

Finally, the court said proof that Warren was trying to persuade Amazon rather than threaten it - and so infringe on the First Amendment - is that her letter does not contain any statements threatening direct consequences should Amazon refuse to comply:

Senator Warren’s silence on adverse consequences supports the view that she sought to pressure Amazon by calling attention to an important issue and mobilizing public sentiment, not by leveling threats. ...

The plaintiffs argue that Amazon could reasonably have construed the letter as implying that Senator Warren could refer Amazon for criminal prosecution as an accomplice to homicide (or perhaps some lesser crime). We agree with the district court that this interpretation "requires a vivid imagination." A vast gap exists between implying that an entity is morally complicit in causing deaths and accusing it of being an accomplice to homicide. ...

Senator Warren never hinted that she would take specific action to investigate or prosecute Amazon based on a far-fetched legal theory that Amazon’s book sales made it liable for COVID-19 deaths or complicit in some unspecified other offense.

One of the three justices, while agreeing with the overall decision to not make Warren issue a retraction, because the plaintiffs failed to show "the likelihood of success on the merits," did, however, argue that one could read Warren's letter as possibly coercive:

[A]lthough a single Senator lacks unilateral authority to impose direct government sanctions on Amazon or other retailers, it is possible that Senator Warren could have made a criminal referral to the Department of Justice, advocated for Committee hearings and investigative subpoenas targeting Amazon's conduct, or introduced legislation to retaliate against a lack of compliance. Against this backdrop, a reader could interpret the letter as implicitly threatening adverse action if Amazon did not comply with the Senator's request.