It took a federal court just 12 pages to deny a preliminary injunction against Massachusetts Senator Elizabeth Warren in a First Amendment suit filed last year by authors Joseph Mercola, Ronnie Cummins, Robert F. Kennedy, Jr., and their publisher Chelsea Green.
In their suit, lawyers for Chelsea Green and the authors argue that a letter Warren sent to Amazon voicing concerns about controversial Covid-19 claims in their book runs afoul of a 60-year-old Supreme Court precedent in Bantam Books v. Sullivan, which holds that state officials “violated the First Amendment by sending letters to booksellers warning that the sale of certain named books was potentially unlawful.” The suit seeks an order declaring Warren’s conduct to be unlawful, as well as damages, and a public retraction.
But in her ruling this week, Federal judge Barbara Rothstein eviscerated the plaintiffs' claims that the letter Warren sent to Amazon expressing concern over the e-tailer’s role in spreading Covid-19 misinformation constituted a government attack on the plaintiffs' First Amendment rights, and held that the plaintiffs are unlikely to succeed in establishing Warren’s letter constitutes a prior restraint on speech.
“Here, it is difficult to maintain that Defendant Warren’s writing a letter to Amazon is effectively wielding state regulatory power, in part because there is no such power to wield," the decision states. "In Bantam Books, the commission was given an express mandate by the legislature and its threats were backed up by a statute criminalizing obscenity. In contrast, Defendant Warren does not have any unilateral investigative authority, and there is no immediate statutory basis for her statement that Amazon’s practices are ‘potentially unlawful.’ Put another way, 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. Plaintiffs are unlikely to successfully demonstrate that the booksellers reasonably perceived Defendant Warren’s letter as a threat.”
The suit revolves around controversial claims repeated in the book The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, by Mercola and Cummins, with a foreword by Robert F. Kennedy Jr..
In a September 7 letter to Amazon, Warren complained that the book “perpetuates dangerous conspiracies about COVID-19 and false and misleading information about vaccines.” And yet, Warren observed, the book was among the top products consistently featured on Amazon when her staff searched for “Covid-19” and "vaccine." Warren asked Amazon to explore and report back how the company’s algorithm was preferencing the book in search results, and said the company’s role in allowing “the spread of falsehoods or the sale of inappropriate products” was “unethical, unacceptable, and potentially unlawful.”
In filing their complaint, lawyers for Mercola, Cummins, Kennedy, and Chelsea Green argued that the Supreme Court ruling in Bantam established that state officials “violated the First Amendment” by sending letters to booksellers warning that selling certain books was potentially illegal. “Senator Warren’s letter makes plain that it is calling on Amazon to de-platform the books she deems objectionable by lauding other Big Tech behemoths that, in response to similar governmental pressure, now block, remove, and demote all so-called ‘Covid misinformation,’” the complaint states. The complaint goes on to argue that, even if Warren’s claims of misinformation were correct (which the authors dispute), “it would not alter the book’s constitutional protection.”
The court, however, dispatched with that argument, and found that the plaintiff’s did not satisfy any of the four factors needed to justify a preliminary injunction. Not only were the plaintiffs unlikely to win on their core claim of prior restraint, Rothstein held, they also failed to show that Warren’s letter caused irreparable harm, that the balance of equities tipped in their favor, or that an injunction was in the public interest.
“Ordering Defendant Warren to retract her letter would effectively be a permanent injunction, because it cannot be undone," Rothstein wrote. "This injunction would not relieve Plaintiffs of irreparable harm, but rather impose it on Defendant Warren.”