• by Wendy Davis , Staff Writer @wendyndavis, July 7, 2022

Anti-vaxxers led by Democratic scion Robert F. Kennedy, Jr. this week continued their battle with Democratic Senator Elizabeth Warren over the book The Truth About COVID-19.

Specifically, Kennedy and the others on Wednesday asked a federal appellate court to order the Massachusetts lawmaker to retract a scathing letter she sent to Amazon about the book. A trial judge denied that request in May.

“Every day that her letter remains public, outstanding, and unretracted, that letter violates and chills not only plaintiffs’ First Amendment freedoms, but those of every author and publisher who would dare to challenge the prevailing orthodoxy on COVID policy and the COVID vaccines,” lawyers for Kennedy and the others argue in papers filed this week with the 9th Circuit Court of Appeals.

The legal battle dates to late last year, when the book's authors, its publisher and Kennedy (who wrote a forward) sued Warren for allegedly violating the First Amendment by complaining about the book to Amazon chief Andy Jassy.

In a letter to Jassy dated September 7, Warren accused Amazon of contributing to the spread of false information about the virus by promoting the book which, she said “perpetuates dangerous conspiracies about COVID-19 and false and misleading information about vaccines.”

She noted that the top search result on Amazon for the terms “COVID-19” and “vaccine” was The Truth About COVID-19 andurged Jassy to review Amazon's algorithms, report on whether they recommended books with incorrect information about COVID-19 and, if so, develop a plan to modify them.

Kennedy and the others argued that Warren, in her role as a government official, attempted to suppress speech, and that her letter implicitly threatened Amazon with legal consequences for continuing to sell the work.

U.S. District Court Judge Barbara Rothstein in Seattle rejected the anti-vaxxers' argument, noting that Warren -- unlike a law enforcement officer -- isn't able to unilaterally act against Amazon.

“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,” Rothstein wrote in an opinion issued in May.

Kennedy and the others are now asking the 9th Circuit to reverse Rothstein's ruling and order Warren to both retract the letter and remove it from her website.

The anti-vaxxers draw heavily on Backpage.com's successful First Amendment case against Sheriff Tom Dart of Cook County, Illinois.

Dart tried to pressure Visa and Mastercard from providing services to Backpage.com (now defunct), due to its thinly veiled prostitution ads. Backpage sued and a federal appellate panel issued an order prohibiting Dart from trying to influence financial companies' dealings with Backpage.com.

But some legal experts have said Backpage's case against Dart is stronger than the anti-vaxxers' case against Warren given that Dart, unlike Warren, is a law enforcement officer.

Warren is expected to respond to the anti-vaxxers' latest argument by August 3.