As COVID-19 conducted its killing rampage across the globe, Robert F. Kennedy Jr. became an anti-vaxxer who co-authored a book titled The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal. The New York Times called Kennedy the “face of the vaccine resistance movement.” Instead of using his formidable legacy to help save lives, he did just the opposite.

But those who opposed his message did not sit by quietly. One of them, Senator Elizabeth Warren (D-MA) wrote to Amazon in September 2021, asking the company’s Chief Executive Officer to change its algorithm so potential customers would not be directed to Kennedy’s book. Warren then posted her letter to Amazon on her website. Kennedy tried to make her take it down. The Ninth Circuit has affirmed her constitutional right to leave it up.

A unanimous three-justice panel of the United States Court of Appeals for the Ninth Circuit affirmed the ruling of District Judge Barbara Jacobs Rothstein of the U.S. District Court for the Western District of Washington on May 4. She ruled that Warren has a constitutional right to post her letter, and Presiding Justice Paul J. Watford, and Circuit Judges Michelle T. Friedland and Mark J. Bennett agreed, with a separate concurrence by Bennett.

Justice Watford was not persuaded by Kennedy’s argument that “Warren crossed a constitutional line dividing persuasion from intimidation” when she wrote her letter to Amazon. The Justice wrote, “Senator Warren’s letter falls safely on the persuasion side of the line,” as he ruled that Rothstein did not abuse her discretion when she denied plaintiffs’ request for a preliminary injunction. In addition to Kennedy, other plaintiffs are his co-authors Joseph Mercola and Ronald Cummins and their publisher Chelsea Green Publishing.

Warren’s letter to Amazon expressed her concerns about how Amazon was promoting a book that “contained false or misleading information about COVID-19 vaccines and treatments through its search and “Best Seller” algorithms.” She pointed out that Amazon had made similar decisions in the past, and wrote, “This pattern and practice of misbehavior suggest that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale or inappropriate products –an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.”

She went on to say that Kennedy’s book “perpetuates dangerous conspiracies about COVID-19” by disputing the safety and efficacy of vaccines while promoting alternative treatments with limited

scientific basis.” She told Amazon that the Food and Drug Administration (FDA) had already ordered co-author Mercola to stop selling his “alternative treatments with limited scientific basis” on his website.

The day after Warren sent her letter to Amazon, she posted a copy on her website. Two months later, plaintiffs sued her for violating their First Amendment rights. They sought an injunction, asked for a public retraction, and wanted to prevent her from sending future letters. The district court denied plaintiffs’ motion because it “failed to raise a serious First Amendment question.”

Watford then agreed that plaintiffs had standing to bring their lawsuit but opined they could not demonstrate they were likely to prevail, an element that is necessary for a preliminary injunction. The opinion relied on the U.S. Supreme Court’s four-part test from Bantam Books v. Sullivan that drew the line between coercion by government officials and protected speech. The Circuit Court then reviewed Warren’s word choice and tone; determined whether Warren had regulatory authority over the issue; decided whether Amazon “perceived the message as a threat”; and established whether any adverse consequences were cited.

The opinion found that “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.” In addition, Warren had no regulatory authority over Amazon, stating it would be “unreasonable here for Amazon to believe that a single member of Congress could bring to bear coercive government power against it for promoting books on its platform.” In addition, Amazon did not alter its algorithms, again demonstrating that Warren made only a “permissible attempt to shape public discourse and change market practices.” Finally, she was totally “silent” about adverse consequences. There was no “or else” in her correspondence.

Watford concluded that “plaintiffs have not raised a serious question as to whether Senator Warren’s letter constituted an unlawful threat in violation of the First Amendment.” She requested but did not demand a “reevaluation” of Amazon’s business practices. There was no threat. There were no mentions of potential adverse consequences.

Robert F. Kennedy Jr. remains free to peddle his misinformation. Amazon remains free to use its algorithms to link consumer requests to misinformation. And Senator Warren remains free to call them both out for doing so. That’s the First Amendment in action.