Muzzle follow-up: RFK Jr. loses his appeal over Warren’s criticism of his COVID book

Sen. Elizabeth Warren. Photo (cc) 2019 by Gage Skidmore.

A federal appeals court has sided with U.S. Sen. Elizabeth Warren in her battle with Amazon over a book that promoted falsehoods about COVID-19. Presidential candidate and noted conspiracy theorist Robert F. Kennedy Jr., who contributed to the book, sued Warren on First Amendment grounds, but Adam Gaffin of Universal Hub — who keeps an eye on the courts so that I don’t have to — reports that the U.S. Court of Appeals for the Ninth Circuit recently ruled that Warren has the same right to criticize Amazon as anyone else.

🗽The New England Muzzles🗽

Last July, I gave Warren a New England Muzzle Award, arguing that though she did indeed have the right to criticize Amazon, a statement she issued targeting Amazon’s algorithmic promotion of books such as “The Truth about COVID-19,” for which Kennedy wrote the introduction, suggested that she was threatening to use her position as a prominent elected official to seek regulation of Amazon’s business practices. In a press release issued in 2021, Warren criticized a “pattern and practice of misbehavior” that “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.”

Prominent civil rights lawyer Harvey Silverglate told The Boston Globe that Kennedy and his fellow plaintiffs had a strong case, saying, “You’d think that a former Harvard law professor would know better.”

But a federal district court disagreed, and now the appeals court has disagreed as well. From the appeals court’s decision:

Elizabeth Warren, as a single Senator, has no unilateral power to penalize Amazon for promoting “The Truth About COVID-19.” This absence of authority influences how a reasonable person would read her letter. A similar letter might be inherently coercive if sent by a prosecutor with the power to bring charges against the recipient…. The letter could be viewed as more threatening if it were penned by an executive official with unilateral power that could be wielded in an unfair way if the recipient did not acquiesce…. But as one member of a legislature who is removed from the relevant levers of power, Senator Warren would more naturally be viewed as relying on her persuasive authority rather than on the coercive power of the government to take action against Amazon.

Although it was admittedly a stretch to argue that Warren’s statement amounted to a threat rather than mere criticism of Amazon’s business practices, she could have followed up by holding hearings and filing legislation that would, for instance, ban the use of algorithmic promotion of books that indulge in falsehoods. We have enough book-banning going on in the country, thanks to Ron DeSantis and his ilk, without having one of our leading progressive senators taking part. Given that Warren did not actually seek to follow up her words with actions, though, I’ll concede that the courts got it right.