Senator Elizabeth Warren won’t be required to retract a public letter asking Amazon to stop “peddling” anti-vaccine books, the Ninth Circuit Court of Appeals said on Friday. Kennedy v. Warren adds to a growing body of case law making it difficult for plaintiffs to demonstrate that government officials violate the First Amendment when they try to pressure private services to take down or leave up certain content — a phenomenon known as “jawboning.” Sen. Warren’s letter was in bad taste, to be sure. But under the exacting standard the Ninth Circuit has now adopted for jawboning cases, the panel is right that she likely did not violate the First Amendment.
Kennedy involves a book called “The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal,” which includes a foreword from Democratic presidential candidate Robert F. Kennedy, Jr. In 2021, Sen. Warren wrote to Amazon to express “concerns” about the book’s “misinformation” and Amazon’s role in promoting it. Her letter used strong rhetoric, calling Amazon’s carriage of the book “an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.” It demanded that Amazon review and “publicly report” on its algorithmic promotion of the book, including answering: “Why do Amazon’s search algorithms prominently list books with COVID-19 misinformation?”
Kennedy sued Sen. Warren in a federal district court, arguing the letter “crossed a constitutional line” between “persuasion,” which is permissible under the First Amendment, and “intimidation,” which the First Amendment may prohibit. He sought a preliminary injunction requiring her to remove the letter from her website, to issue a public retraction and to refrain from sending similar letters in the future.
Like it or not, anti-vaccine content is almost certainly protected by the First Amendment. This means the government may not suppress it, directly or indirectly. Yet the district court denied Kennedy’s motion for a preliminary injunction after finding that Sen. Warren’s letter did not rise to the level of “intimidation” or “coercion” necessary to establish a First Amendment violation.
The facts in Kennedy v. Warren resemble those of another case the Supreme Court heard 60 years ago, Bantam Books v. Sullivan. In Bantam Books, a state commission issued threatening notices to book distributors that certain material they carried was obscene—“objectionable for sale”—and that it was the commission’s “duty to recommend to the Attorney General prosecution of purveyors of obscenity.” The Supreme Court found the commission’s veiled “threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation” against book distributors violated the First Amendment. Like the commission in Bantam Books, Sen. Warren suggests Amazon’s decision to stock and promote the book is “unlawful”—meaning Amazon may be able to be prosecuted for leaving it up—and singles out specific authors and titles to be taken down.
Yet unlike the coercive notices at issue in that case, the Ninth Circuit panel concluded Sen. Warren’s letter did not pose a sufficiently credible threat. This means it was likely a lawful—if ill-advised—“attempt to persuade.”
To distinguish persuasion from coercion, the panel adopted the exacting test from the Second Circuit’s opinion in National Rifle Association of America v. Vullo. The Vullo test considers:
- “The government official’s word choice and tone;
- Whether the official has regulatory authority over the conduct at issue;
- Whether the recipient perceived the message as a threat; and
- Whether the communication refers to any adverse consequences if the recipient refuses to comply.”
Applying the test in Kennedy, the panel concluded:First, because the letter only “asked” Amazon to issue a public report, and “nothing in Senator Warren’s call to action directly suggests that compliance was the only realistic option to avoid government sanction,” the tone of the letter did not weigh in favor of finding impermissible coercion. Additionally, Sen. Warren didn’t follow up on the letter. If she had made serial attempts at “persuasion,” Sen. Warren’s “tone” may have been perceived by the panel as more suspect.
Second, because Sen. Warren was only one of 538 federal legislators, “it would [be] unreasonable here for Amazon to believe that [she, alone] could bring to bear coercive government power against it for promoting books on its platform.” Interestingly, the panel added that the letter could reasonably “be viewed as more threatening if it were penned by an executive,” rather than legislative, “official with unilateral power.”
Third, unlike in Bantam Books, where the book distributors removed the “obscene” books after the commission’s threat, “there was no evidence that Amazon changed its algorithms in response” to a perceived threat in Sen. Warren’s letter, “let alone that it felt compelled to do so.” Indeed, the books are still for sale on Amazon today.
And fourth, Sen. Warren’s letter did not refer to any adverse consequences for Amazon if they disregard the letter’s demands. The panel noted that, in jawboning cases, “an official does not need to say ‘or else’ if a threat is clear from the context,” to violate the First Amendment. However, Sen. Warren “never hinted” about any action she would take. The panel added that her use of the phrase “potentially unlawful” did not “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.” On these grounds, it affirmed the lower court’s denial of Kennedy’s motion for preliminary injunction.
To be sure, the growing trend of government officials using informal means, like open letters, to pressure online services to leave up or take down certain content is a threat to free speech that should be taken seriously. Allowing the government to influence which books Americans may access violates the most basic First Amendment principles. For this reason, as we explained in a similar Sixth Circuit case last year, courts should not impose an unreasonably high bar for plaintiffs to seek relief when the government tries to censor their online speech.
Unfortunately, the panel’s decision to adopt the Vullo factors may now make future meritorious jawboning cases unwinnable in the Ninth Circuit. Many improper public statements by executive officials could be considered insufficiently backed by the “threat of enforcement” to receive judicial scrutiny unless they come directly from law enforcement or someone with decision-making authority in an enforcement agency.
Likewise, Vullo’s “tone and vocabulary” factor may prove unduly deferential to the government: Sen. Warren’s own press release referred to the letter as a “demand,” rather than a request; the letter referred to Amazon’s editorial judgment as “potentially unlawful”; and this was the second letter she sent to Amazon in 2021. Still, the panel concluded the letter’s “tone and vocabulary” counseled in favor of “lawful persuasion.”
Even if Kennedy was correctly decided, the Vullo test could significantly limit who can be enjoined for unconstitutional jawboning in future.
The court’s reasoning in this case is important. It will serve as strong, persuasive authority when the Ninth Circuit hears Trump v. Twitter, another jawboning lawsuit, later this summer, among others. Of course, the facts here and in Trump differ. Whereas Kennedy case was filed against the government coercer (Sen. Warren), Trump is filed against the private service (Twitter). Yet if the Court includes the Vullo test in at least part of its analysis, Trump is likely to face an especially uphill battle.