Elizabeth Warren Threatens Amazon For Selling Books Containing Misinformation; Perhaps Forgetting The 1st Amendment

from the kinda-matters dept

We’re going to have to do this again up front because I know how this is going to go over among some: even if you think Amazon is the root of all evil, and Senator Elizabeth Warren truly is the greatest Senator in the last century, that does not mean that she gets to ignore the Constitution. We had this issue earlier this year when Warren threatened to punish Amazon for its constitutionally protected speech, and now she’s going even further. She has sent a letter to new Amazon CEO Andy Jassy to complain about the fact that there are some books on Amazon that have dangerous mis- and disinformation about COVID-19 and various treatments and vaccines. And, yes, I recognize just as well as you do how dangerous that kind of mis- and disinformation can be. But, whether you like it or not, that mis- and disinformation is almost certainly protected by the 1st Amendment. And Warren ignores all that and implies that Amazon hosting this material is potentially “unlawful.” It’s not and threatening Amazon for carrying it is a huge 1st Amendment issue.

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.

I mean, the Bantam Books case from 1963 is still good law, and presents a very similar situation, involving government officials strongly implying to a book distributor that certain books should not be distributed. The Court found that to be unconstitutional (even without a direct threat). In this case, Warren’s letter even suggests illegality, which goes further than what happened in Bantam Books. In Bantam Books, the Court found that even though the government officials had no law enforcement capability, they were still clearly intimidating the distributor:

In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors prior to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case. The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went for beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extra-legal sanctions; they acted as an agency not to advise but to suppress.

That… sounds pretty much like what Warren did here with this letter. From her letter, which even calls out specific books she doesn’t like:

Alarmingly, Amazon?the nation?s leading online retailer?and the company?s search algorithms appear to contribute to the spread of COVID-19 misinformation. During the week of August 22, 2021, my staff conducted sample searches on Amazon.com of pandemic-related terms such as ?COVID-19,? ?COVID,? ?vaccine,? ?COVID 19 vaccine,? and ?pandemic.? The top results consistently included highly-ranked and favorably-tagged books based on falsehoods about COVID-19 vaccines and cures.

When staff searched for terms ?COVID-19? and ?vaccine,? the first result, presented prominently in the top left corner of the screen, was a book by Joseph Mercola and Ronnie Cummins called ?The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal.? Dr. Mercola has been described as ?the most influential spreader of coronavirus misinformation online.?11 Not only was this book the top result when searching either ?COVID-19? or ?vaccine? in the categories of ?All Departments? and ?Books?; it was tagged as a ?Best Seller? by Amazon and the ?#1 Best Seller? in the ?Political Freedom? category.

Even if we think that Dr. Mercola is a dangerous grifter, that does not mean that the US government gets to ban his books. That’s kind of important. And then Warren “demands” that Amazon change its algorithm, raising even more 1st Amendment issues (algorithms are protected speech as well)

Given the seriousness of this issue, I ask that you perform an immediate review of Amazon?s algorithms and, within 14 days, provide both a public report on the extent to which Amazon?s algorithms are directing consumers to books and other products containing COVID19 misinformation and a plan to modify these algorithms so that they no longer do so…

Perhaps even more ridiculous is that Warren relies on WHO claims at one point in the letter:

In February 2020, the World Health Organization declared an ?infodemic? to describe the difficulty of finding reliable information about COVID19 in today?s media environment

That’s true. But in February of 2020 the WHO was also telling people that masks didn’t help and that there wasn’t evidence to support that COVID was transmitted by aerosols. In other words, even if there was an “infodemic,” the WHO itself helped contribute to it with some of its earliest claims. And that’s part of the reason why the 1st Amendment is so important. We can agree that there are grifters, scammers, idiots, and ignorant fools pushing nonsense in books, but it’s not the government’s job to censor such information. And yet that’s what Warren is doing — and doing so by threatening an intermediary is even worse.

This is important not just if you hate Amazon, hate COVID grifters, and love Elizabeth Warren. Because if you think this setup is okay, then you similarly are supporting ignorant fools in Congress who are spreading disinformation themselves (and there are a bunch of them) pressuring Amazon to drop books that present good information about COVID treatments and prevention.

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Comments on “Elizabeth Warren Threatens Amazon For Selling Books Containing Misinformation; Perhaps Forgetting The 1st Amendment”

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This comment has been deemed insightful by the community.
Thad (profile) says:

I like Warren and I disagreed with you on the significance of the Twitter thing a few months back, but yeah I can’t see anything here that’s defensible. I was hoping her reference to the "sale of inappropriate products" might have been to exploding batteries or some of the other dodgy goods Amazon sells that might indeed be "potentially unlawful", but nope, it’s quite clear in context that she’s talking about books.

Not a good look, Senator.

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Stephen T. Stone (profile) says:

I’ve said it before, and I’ll say it again: I generally like Liz Warren and what she stands for, but this is a boneheaded decision that reeks of the kind of authoritarianism I tend to associate with Republicans. She needs to take a few steps back from this situation and study the First Amendment again so she doesn’t make this mistake again.

solongsowrong says:

Final weapon againt copywrong debunking

Oh, yeah! I can easily foresee from where this statement has been sent to Mrs. Warren (since politicians are only the puppets of lobbysts). It had to be one affiliated to copywrong cartel. Let’s think! Someone writes a book explaining why unauthorized downloads from torrents or filehosting sites do not harm sales? (Many evidences were collected about this). Suddenly it is issued an order to cease to sell this book!

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That One Guy (profile) says:

'That moldy piece of paper, what about it?'

Does anyone knows if she’s ever actually read the first amendment, or is this just another case of ‘it doesn’t apply to things I don’t like’ that so many people seem to operate under?

Yes grifters, liars and fools selling covid lies is something worth being concerned about, and if she’d simply made her concern clear that Amazon is hosting that sort of content that would be one thing but hinting that what they’re doing could be illegal and ‘asking’ them to change their algorithm to keep people from finding that content is a bridge too far, and all she’s doing is laying the groundwork for her political opponents to turn that on her should enough people be crazy enough to put them into office as a majority.

Anonymous Coward says:

The facts, they are a changin'.

A person is smart. People are dumb, panicky dangerous animals and you know it. Fifteen hundred years ago everybody knew the Earth was the center of the universe. Five hundred years ago, everybody knew the Earth was flat, and fifteen minutes ago, you knew that humans were alone on this planet. Imagine what you’ll know tomorrow.
— K

Tanner Andrews (profile) says:

Re: Re: Section 230

Coca Cola company avoids charges of furnishing moonshine bottles by changing their operations. They no longer supply those sturdy re-usable glass bottles. I feel sorry for your shine operation, but sorrier for the rest of us who have to supply disposal services and landfill space for the single-use containers they now use.

Scary Devil Monastery (profile) says:

Re: Section 230

"How does Section 230 not apply, despite the content itself not being digital/online?"

Because in a very weird way Warren is doing something a bit worse than the usual alt-right shitwit trolls trying to attack 230…she’s proposing that literature be banned.

There’s no sliding slope here; Yeah, most people would prefer the book from the OP, Mein Kampf, Hannibal Lecter’s Kitchen tips…weren’t so accessible to asshole fuckwits. Nevertheless the only legal principle which would see those banned as misinformation bearers would similarly see every philosopher banned.

She could have made a great speech polemizing about deplorable ways to make money out of the gullibility of the ignorant and misled. On how willfully tricking people into endangering themselves and others bloodies your hands. She could call for civic responsibility, plead Amazon to at least put a warning label up. That would all be good and the hallmark of a responsible politician.

Instead she grasped for implications she’d like to deploy unconstitutional legislation with the same fervor unscrupulous republican grifters employ in order to cater to their base. Knowing she’ll lose. So my question is; what sort of people is she assuming her base consists of, exactly?

That Anonymous Coward (profile) says:

Ice… floes…

Maybe then we can elect people who don’t care about trying to get headlines & about solving actual problems facing the nation.
Covid Deniers are going to die out, it is in everyone elses interest to stay masked and avoid these dumbasses until they die off.
Wasting any effort trying to protect them from misinformation is pointless and Senator… how about you deal with the misinformation POURING out of Congress before you try and manage anyone elses house.

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Anonymous Coward says:

Re: Re:

Covid Deniers are going to die out, it is in everyone elses interest to stay masked and avoid these dumbasses until they die off.

Covid mortality is nowhere near enough to support that wish. Worse, Covid denial is simply a symptom of a more pernicious malady: lazy thinking. While they may be victimized by qanon and fox news, the truth is that they rely on news sources that are at best mistaken and at worse maliciously wrong.

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restless94110 (profile) says:

Perhaps?

There’s no perhaps about it.

Warren is one of the many school marms (e.g. Susan Wojicki) who have invaded American society.

She thinks she is so right that it’s now cool for her and the other school marms to prevent the rest of us from reading or seeing anything they deem yucky.

Even liberals I know who have had contact with Warren say she is an insufferable bitch.

This book banning, anti Free Speech stuff is all her, baby, all she is about. Forget about Big Brother. It’s really all Big Sister.

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pigpenpal says:

Re: Re: Re:

The 1A protects shouting fire in a crowded theater when there’s a fire. Not to panic the patrons.

If you think masks are useless can shout it all you want. You’re free to share an opinion.

When asked to back up that opinion with facts however, you should be held accountable for lying. If you’re just having an argument in a forum like this, the penalty is a loss of respect and standing. If you make a living sharing the news and commenting on what that news means for a larger audience then you have a much larger responsibility and bad faith, especially a business model built on bad faith, should be penalized.

Today it is rewarded.

bhull242 (profile) says:

Re: Re: Re: Re:

The 1A protects shouting fire in a crowded theater when there’s a fire. Not to panic the patrons.

If you can prove intent or something, possibly.

If you think masks are useless can shout it all you want. You’re free to share an opinion.

Which was all I was saying.

When asked to back up that opinion with facts however, you should be held accountable for lying. If you’re just having an argument in a forum like this, the penalty is a loss of respect and standing.

Agreed.

If you make a living sharing the news and commenting on what that news means for a larger audience then you have a much larger responsibility and bad faith, especially a business model built on bad faith, should be penalized.

That’s not how it works. Opinions based on disclosed facts are protected equally for everyone. The penalty is still based on social consequences.

Today it is rewarded.

Which is a problem with those people doing the rewarding, but it is also penalized by others. We can’t control everyone.

pigpenpal says:

Re: Re: Re:2 Re:

That’s not how it works.

I’m suggesting that this is how it should work.

When there were only three broadcast networks, any pundit or reporter caught spreading obvious falsehoods would have lost their job. Dan Rather lost his for falling for a honey-trap of "evidence" that Bush Jr. had skipped on this National Guard service, and that was a mistake, not something he concocted or disseminated with the knowledge that it was false.

A very few networks/news sources might still dismiss an associate for willfully bad reporting, but the entire right-wing rage machine depends upon spreading falsehoods and when challenged merely repeating them more often and more loudly.

If these entities will not police themselves, do we have any other choice?

I’m proposing that willfully spreading false information, lying as a practice, simply not be considered protected first amendment speech.

bhull242 (profile) says:

Re: Re: Re:3 Re:

I’m proposing that willfully spreading false information, lying as a practice, simply not be considered protected first amendment speech.

And I’m saying that such an absolutist position is unworkable without getting too much in the way of collateral damage.

The best weapon against speech isn’t lawsuits but more speech. Silencing them by force of law will not help at all.

pigpenpal says:

Re: Re: Re:4 Re:

Respectfully, I think you’ve got it backwards. Considering all speech to be protected is the absolutist position.

And why would you think my proposal would lead to less speech? Consider:

Tucker Carleson says on his show that George Floyd died of a drug overdose and that when the "left wing media" claims he was choked to death they are lying.

Today, when we call him a liar and point to the two autopsies which determined that he was choked to death he just keeps on telling the lie. Under my proposal he would be invited to support his assertion with evidence or retract the statement if he wanted to avoid paying the fine.

There would be a public score-keeping with tangible consequences for professional pundits.

And it is not so radical. People can sue for slander and liable. Today these are difficult to sustain because you have to prove malice and it’s hard to prove intent. In cases of fraud, malice is not required. A CEO lies to his shareholders, they don’t care about why he did it, they only care about how much money they lost. They care about HARM, not intent.

Tucker and his friends are doing much, much more harm than financial injury to a handful of shareholders. And, in Tucker’s case, if proven wrong all he’d have to do is retract his erroneous statement and not repeat it. He wouldn’t even have to admit he is a rancid toad who lies for a living, he could simply claim he was mistaken.

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Stephen T. Stone (profile) says:

Re:

Protecting First Amendment-protected rights means protecting them even in “worst case scenarios”⁠—like, say, going to bat for Amazon. The ACLU stood up for actual goddamned Nazis in the Skokie case; someone thinking Amazon should be free from government censorship isn’t that much worse a position to take.

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That One Guy (profile) says:

Re: Re:

If you only care about constitutional rights when they apply to and/or are being used by people that you like then you don’t actually care about constitutional rights and you open the door for your rights to be trampled if the person doing so happens to not like you.

Or as the play A Man for All Seasons put it…

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

― Robert Bolt, A Man for All Seasons

bhull242 (profile) says:

Re: Re:

I don’t have to like the person or company in order to agree that their rights should absolutely be protected just like anyone else’s. I would defend the free speech rights of Amazon or Donald Trump or Michelle Malkin just as vehemently as I would the free speech rights of, say, that kind old lady down the street or Bernie Sanders or anyone else. My opinion on the speaker or the speech is irrelevant.

pigpenpal says:

Larger Issue

I think there is a larger discussion to be had, tangential to the specific issues in this case but far more critical, about whether or not the willful distribution of disinformation should be protected speech under the first amendment. The suggestion is fraught, the implementation would be difficult, but I do not see how a democracy can survive an onslaught of weaponized bullshit.

Consider: Lying in court is perjury and is not tolerated. Lying in many business contexts is considered fraud, and is punishable as such. The kind of methodical, organized, agenda-driven fear-mongering that drives our politics today is enormously corrosive to democracy and fuels the radical campaign to overthrow democracy.

That characterization of our current predicament would sound like hyperbole if we were not seeing it every day. It would sound hysterical if it were not the essential tactic used by every fascist overthrow of a democratic government in the 20th century.

That One Guy (profile) says:

Re: Larger Issue

I can explain why that’s a very dangerous idea in two words: ‘Fake news’.

Liars on an individual and organized level can absolutely do some serious damage but if you make lying a crime outside of very narrow circumstances and go after it on those grounds then should those fascist ever be in a position of power you can be damn sure that they will use it to keep that power by shutting down anything that challenges them.

When it comes to ideas and solutions it’s always handy to ask yourself, ‘Would I trust my absolute worst enemy with this power and feel safe should they have it?’ If the answer is no it’s probably not a good idea.

pigpenpal says:

Re: Re: Larger Issue

And yet…
It is almost always possible to determine what is true and what is not, what is fact and what is speculation and what is groundless nonsense. It’s very often possible to examine the sources, judge the authorities and determine what’s true and what’s not.

The election was NOT stolen. Vaccine’s are NOT a scheme to install tracking chips in citizens. Hydroxycloroquin, bleach, lysol and UV light are NOT treatments or prophylactics for Covid 19. The veracity of these statements is discernible, AND demostrable to a very high degree of certainty.

Your example of giving your worst enemy power over you is an interesting one. It’s exactly the power we’ve given the far right. To disrupt and undermine democracy to the point of paralysis. To label anti-fascist and anti-police brutality protesters as terrorists. To cripple the rollout of the only effective measures to fight a deadly pandemic. All this done through the willful spread of disinformation, all with utter impunity.

That One Guy (profile) says:

Re: Re: Re: Larger Issue

Your example of giving your worst enemy power over you is an interesting one. It’s exactly the power we’ve given the far right. To disrupt and undermine democracy to the point of paralysis. To label anti-fascist and anti-police brutality protesters as terrorists. To cripple the rollout of the only effective measures to fight a deadly pandemic. All this done through the willful spread of disinformation, all with utter impunity.

Not so, they’ve done that damage with but a sliver of the power your idea would grant them, as as bad as what they have done is imagine what they could have done had they been able to bring legal charges against those they claimed were spreading ‘fake news’ and ‘attacking the country’ instead of just throwing out labels and accusations.

Your idea might have some merit if you assumed good faith on the part of everyone involved but it falls apart when you factor in that the ones determining what is and is not ‘true’ might not be doing so in good faith, and/or might decide to weaponize the system to go after their opponents.

By all means push for applying non-legal consequences to liars in the form of stuff like boycotts, refusal to platform a person or constant reminders that they’re a demonstrable liar, along with supporting the merits of [Citation Needed] being the default response to a claim but mixing in the legal system is likely to cause more harm than it prevents.

pigpenpal says:

Re: Re: Re:2 Larger Issue

Well, once all public institutions become corrupt, all bets are off no matter what laws are on the books. If the entire communications channel is flooded with nonsense (an express tactic of the right) and all the courts are packed with wingnuts the game is over. We’re not far from it now.

I’m not at all insensible to your concerns and I share them. And I’m not proposing criminal proceedings against serial liars; civil penalties only. But we need to remove First Amendment protections from established disinformation… and this is critical… as promoted by professionals, not civilian citizens. If you make a living sharing news, you have to be held to a professional standard.

~ Statements of opinion would be exempt. Only the supporting "facts" would be considered and if one chose not to supply facts in support then their opinion would have to bear that disclaimer. "Unsupported opinion."

~ Anyone could put up a bond, say $500, to challenge Hannity or Maddow or Jen Psaki on a statement (limits on how many challenges per year per person and penalties for abuse of the system). If the challenge is groundless, the bond is forfeit. If the challenge is sustained, the liar pays $500 for the first offense, or publicly retract the statement and never repeat it. If they do the penalty goes up by a factor of ten for each repetition.

~ Not for private disputes, personal grudges, etc. Solely for public policy issues under public discussion in the professional media. What is professional media? Anyone who profits from sharing or commenting on the news.

~ For challenges where the issue remains unresolved, no penalty to either party.

Messy? You bet.

But in very short order the media would become very careful about what it says and how it characterizes it’s reporting. We can tolerate the mess or give up public discourse to a right wing mob.

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Tanner Andrews (profile) says:

Re: Larger Issue

I do not see how a democracy can survive an onslaught of weaponized bullshit

Who should decide? The same people who decreed that the use of saccharine was safer than cyclamates? The bishops who prosecuted Galileo? The engineers who approved the Pinto gas tank design? The executives who said that the corn sweetener formula Coke was as good as the sugar formula? The experts telling us of the weapons of mass destruction in Iraq?

All of these people had strong motives to promote their views. The results, in hindsight, do not make the views look good. But at the time, they were the ones who got to decide.

Scary Devil Monastery (profile) says:

Re: Larger Issue

"The suggestion is fraught, the implementation would be difficult, but I do not see how a democracy can survive an onslaught of weaponized bullshit. "

It can’t. Karl Popper’s "Paradox of Tolerance" is real;

The paradox of tolerance states that if a society is tolerant without limit, its ability to be tolerant is eventually seized or destroyed by the intolerant.

However, there are ways to incentivize resistance to bigotry and willful ignorance which doesn’t rely on injunction and law, and those methods should surely be applied first. The problem the US has is that it has no tools which aren’t totalitarian in nature and has largely given up on even trying to educate it’s children to grow up critical thinkers.

pigpenpal says:

"Who should decide? The same people who decreed that the use of saccharine was safer than cyclamates? The bishops who prosecuted Galileo? The engineers who approved the Pinto gas tank design? The executives who said that the corn sweetener formula Coke was as good as the sugar formula? The experts telling us of the weapons of mass destruction in Iraq?"

Excellent observation.

The public discussion of what’s true and what’s not has to happen out in the open, in the light of day. Not in closed session, not in a star chamber, not sequestered from examination or challenge. Transparency is the key.

We already know the truth of most of what’s under discussion today. For instance:

The election was NOT rigged. Any public speaker, any professional news person, politician, government official or corporate flack who says otherwise should have to qualify the utterance as their own opinion and say explicitly that they have no credible evidence to support it.

If they claim to have evidence and it is shown that they were lying about that too, they should be subject to heavy fines and any public appearance should include the introduction, "known liar and disgraced spokesperson John Doe…" unless they publicly and prominently retract their claims.

In all the cases you cite above, the facts were available. These liars could have been challenged. If they had been and their reputations damaged and their pocketbooks bruised, they might not have made the claims they did.

Anonymous Coward says:

There is a very slender limb growing in the direction that Warren has jumped in this one. Namely, a company could be blamed if it warrants a product as providing expert medical advice if it is in fact balderdash. And to be sure, yes, we have seen overbearing medical lobbyists hanging far off that limb, threatening people on every Q-and-A forum on the internet if they dare so much as answer a biology question without clutching their Grifter Rosary and reciting a pledge of obsequience to those Doctors who alone can tell you basic information about what is wrong with you, if you have cash in hand.

Nonetheless, threatening Amazon in an effort to make it decide who is right and wrong – in other words, justifying its tendency to turn a monopoly on publishing into a monopoly on truth – well, that is a vast step in the wrong direction. Her criticism of vitamin supplements runs counter to the popular MATH+ protocol. Her criticism of ivermectin runs counter to what some areas of India have actually done, given that they live in an imperfect world where sufficient vaccine for the entire human population may never be made. Instead of having an open discussion of scholars seeking the truth, why not have a fiat imposed based on the prejudices of those in positions of corporate power before the research is done?

Where there is censorship, there will be death. This is not a bad thing, but reflects the primordial humanity of the universe to those in need of mercy.

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