Robert F. Kennedy Jr. and other vaccine critics have sued Senator Elizabeth Warren for allegedly violating the First Amendment by urging Amazon to stop promoting the book The Truth About COVID-19.
The lawsuit, filed Sunday in federal district court in Seattle, stems from Warren's September 7 letter to Amazon chief Andy Jassy, which accused the company of contributing to the spread of false claims about the virus by algorithmically promoting the book.
Warren, a Democrat from Massachusetts, said in her letter that the top search result on Amazon for the terms “COVID-19” and “vaccine” was the book The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, which she said “perpetuates dangerous conspiracies about COVID-19 and false and misleading information about vaccines.”
“Given the seriousness of this issue, I ask that you perform an immediate review of Amazon’s algorithms and, within 14 days, provide both a public report on the extent to which Amazon’s algorithms are directing consumers to books and other products containing COVID-19 misinformation and a plan to modify these algorithms so that they no longer do so,” she wrote.
Book authors Robert Mercola and Ronnie Cummins, along with Kennedy (who wrote a forward to the book), and Chelsea Green Publishing (which published the book), now allege that Warren violated the First Amendment with the letter.
“There can be no doubt that The Truth About COVID-19 is constitutionally protected speech,” they allege. “Senator Warren’s letter calls for the suppression of protected speech.”
They add that the book, which criticizes the U.S. government, “expresses views on a host of COVID-related topics -- for example, the origins of the disease, the safety and efficacy of the COVID vaccines, and the suppression of alternative treatments that could have saved lives -- with which many may disagree."
They allege Warren's letter harmed sales, asserting that Amazon isn't listing the book “in its proper category as a medical work,” and that the company effectively demoted the book “by not advertising it to users whose past book purchases would (under Amazon’s standard algorithms) indicate their interest in the book.”
Kennedy and the others are seeking an order requiring Warren to publicly retract her letter, as well as monetary damages.
Their complaint draws on Backpage.com's successful First Amendment lawsuit against Cook County Sheriff Tom Dart, who had attempted to pressure Visa and Mastercard from providing services to the (now defunct) online classifieds site, due to its thiny veiled prostitution ads.
Six years ago, a federal appellate panel in Illinois issued an injunction prohibiting Dart from attempting to influence the financial companies' dealings with Backpage.com.
"In his public capacity as a sheriff of a major county ... Sheriff Dart is not permitted to issue and publicize dire threats against credit card companies that process payments made through Backpage’s website,” Circuit Judge Richard Posner Posner wrote in that matter.
"Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers ... but ads for all these things can be found in non adult sections of Backpage and it would be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening credit card companies or other suppliers of payment services," Posner wrote.
But legal experts say Backpage's First Amendment claims against Dart appear stronger the claims in the lawsuit against Amazon -- mainly because Dart, unlike Warren, was a law enforcement officer.
“Senator Warren's not a law enforcement officer, and doesn't have law enforcement responsibilities,” Venkat Balasubramani, a Seattle based attorney with expertise in First Amendment issues, says.
Balasubramani adds that Kennedy and the others will likely face a challenging battle, especially given that Warren can argue that she has the right to make requests of a private company on behalf of her constituents.
Eric Goldman, a law professor at Santa Clara University, adds that Rep. Adam Schiff (D-California) prevailed earlier this year in a somewhat similar lawsuit brought by the Association of American Physicians and Surgeons.
An organization founded by Kennedy, Children's Health Defense, is separately attempting to revive a lawsuit accusing Facebook of violating the First Amendment by suppressing the group's vaccine-related posts.
In that case, the group argues that Facebook was acting “as a censorship instrument and agent of the United States government” when it suppressed the organization's posts.
A trial judge threw out the lawsuit earlier this year. The Children's Health Defense recently urged the 9th Circuit Court of Appeals to reinstate the case.