Ninth Circuit sides with Elizabeth Warren in dispute with RFK Jr …
A federal appeals court refused Thursday to order Sen. Elizabeth Warren to withdraw a letter that criticized online giant Amazon for recommending a book by Robert F. Kennedy Jr. and other vaccine deniers that accuses the “global elite” of using the COVID-19 pandemic to seize “unprecedented power.”
Kennedy and his coauthors and publisher accused Warren, D-Mass., of violating their freedom of speech by trying to coerce Amazon into removing computer settings that directed customers to their book. But the Ninth U.S. Circuit Court of Appeals in San Francisco said the senator’s message was one of persuasion, not coercion, and upheld a judge’s denial of an injunction that would require Warren to retract the letter.
The 2021 book, “The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal,” denounces government-approved vaccines as unsafe and ineffective and urges readers to take vitamins and medications rejected by U.S. health officials.
The lead author, Dr. Joseph Mercola, a Florida osteopath, sells some of the products he recommends and was issued a warning letter in 2021 by the U.S. Food and Drug Administration saying he was advertising “unapproved and misbranded products” as established COVID-19 treatments on his website.
The book’s forward was written by Kennedy, son of the late Sen. Robert F. Kennedy, who announced last month that he would challenge President Biden for the Democratic nomination in 2024. His attacks on the vaccines have included a statement in January 2022 that Dr. Anthony Fauci, then Biden’s top health adviser, was promoting “fascism,” a month after Kennedy had posted a video depicting Fauci in a Hitler mustache.
The court case involved a letter Warren sent to Amazon in September 2021, and announced to the public in a press release, saying she was concerned the company “is peddling misinformation about COVID-19 vaccines and treatments” by promoting the book. She cited Amazon’s computer algorithms that directed users to the book, and the company’s listing of “The Truth About COVID-19” as the “#1 Best Seller” in Amazon’s “Political Freedom” category.
Noting her previous complaint to Amazon on another COVID issue, Warren said, “This pattern and practice of misbehavior suggests that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale of inappropriate products.”
Several weeks later, Amazon notified the publisher, Chelsea Green Publishing, that it would not advertise the book — though the court said there was no evidence Amazon had actually advertised it in the past. Chelsea Green, Kennedy and Mercola then sued Warren, accusing her of trying to intimidate Amazon into stifling their free speech.
In denying an injunction against the senator, the appeals court said her letter did not violate the standards the Supreme Court declared in a 1963 ruling. That case involved Rhode Island’s state-created Commission to Encourage Morality that told distributors of allegedly indecent books and magazines that it had reported them to police and they should halt circulation of the publications. The court said such state-sponsored “informal censorship“ violated the First Amendment.
While Warren used some “strong words … our system of government requires that elected officials be able to express their views and rally support for their positions,” Judge Paul Watford wrote in Thursday’s ruling.
The suit cited Warren’s assertion that the book was promoting “potentially unlawful” conduct as an attempt to coerce Amazon by threatening prosecution. That might be the case if the letter came from a prosecutor or executive official, Watford said, but “Elizabeth Warren, as a single Senator, has no unilateral power to penalize Amazon.”
“There is no evidence that Amazon or any other bookseller perceived the letter as a threat,” he wrote.
Judge Michelle Friedland joined Watford’s opinion. The third panel member, Judge Mark Bennett, said he considered some aspects of Warren’s letter to be potentially coercive, but not enough for an injunction that would require her to withdraw it.
Opposing lawyers in the case did not respond to requests for comment.
Reach Bob Egelko: begelko@sfchronicle.com; Twitter: @BobEgelko
