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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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