Preliminary Injunction Sought by Kennedy Jr. Properly Denied
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Ninth Circuit:
Preliminary Injunction Sought by Kennedy Jr. Properly Denied
By
a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed
the denial by a District Court judge of a preliminary injunction sought by
Robert F. Kennedy Jr. and others to force U.S. Sen. Elizabeth Warren.
D-Massachusetts, to remove from her website a letter she sent to Amazon’s chief
executive urging that a stop to sales of a book she alleges spews
misinformation about COVID-19.
Kennedy, nephew of President John F. Kennedy and son of U.S.
Sen. Robert F. Kennedy, wrote the foreword to the book, “The Truth About
COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New
Normal.” The author is a Florida osteopath Dr. Joseph Mercola.
Yesterday’s opinion is by Ninth Circuit Judge Paul Watford,
who is slated to retire at the end of the month. He noted that the plaintiffs
contend that Warren “crossed a constitutional line dividing persuasion from
intimidation when she sent a letter to Amazon requesting that the online
retailer modify its algorithms so that they would no longer direct consumers to
the plaintiffs’ book.”
Persuasion, Not Coercion
Watford declared:
“We conclude that Senator Warren’s letter falls safely on the
persuasion side of the line and accordingly hold that the district court did
not abuse its discretion by denying the plaintiffs’ request for a preliminary
injunction.”
Warren’s letter began:
“I write regarding concerns that Amazon is peddling
misinformation about COVID-19 vaccines and treatments through its search and
‘Best Seller’ algorithms. This is the second time in six months that I have
identified Amazon practices that mislead consumers about COVID-19 prevention or
treatment: earlier this year. I wrote regarding concerns that the company is
providing consumers with false and misleading information about FDA-authorized
KN95 masks. 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—an unethical,
unacceptable, and potentially unlawful course of action from one of the
nation’s largest retailers.”
No ‘Serious Question’
Watford was joined by Ninth Circuit Judge Michelle T.
Friedland in saying:
“We conclude that the plaintiffs have not raised a serious
question as to whether Senator Warren’s letter constituted an unlawful threat
in violation of the First Amendment. Her letter requested, but did not demand,
that Amazon reevaluate its business practices regarding COVID-19 misinformation
and report back any changes. The absence of a specific demand is unsurprising
given that Senator Warren lacks direct regulatory authority over Amazon in this
matter.”
They continued:
“There is no evidence that Amazon or any other bookseller
perceived the letter as a threat, and the ‘potentially unlawful’ language does
not fundamentally alter the analysis because Senator Warren never stated or
otherwise implied that there would be any adverse consequences if Amazon failed
to comply with her request. As a result, we hold that the district court did
not abuse its discretion in denying the plaintiffs’ request for a preliminary
injunction.”
Concurring Opinion
Ninth Circuit Judge Mark J. Bennett said in a concurring
opinion:
“The question before us is narrow: whether the district court
abused its discretion in denying a preliminary injunction. I concur in the
judgment because the district court did not misapply the law, clearly
misconstrue the record, or otherwise abuse its discretion in determination that
plaintiffs are unlikely to succeed on the merits of then* First Amendment
claim….But the majority proceeds to hold that plaintiffs failed even to raise a
‘serious question’ going to the merits regarding Senator Warren’s letter….I
write separately to express my view that some aspects of the letter could be
interpreted as coercive by a reasonable reader.”
He went on to say:
“[A]lthough I agree with the majority that Senator Warren’s
choice of the phrase ‘potentially unlawful’ is ambiguous in context, it could
plausibly be read as referring to a broader ‘pattern and practice of
misbehavior’ that the Senator identified….[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.”
The case is Kennedy
Jr. v. Warren, 22-35457.
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2023, Metropolitan News Company
