Court Dumps Lawsuit Alleging The Government Forced Amazon To Stop Promoting An Anti-vaxxer’s Book

Legal Issues

from the sorry-your-book-sold-well-or-that-happened-to-you dept

The internet has revolutionized communications, sales, and information distribution, and has enabled historic levels of porn consumption. These are all unequivocally good things. (Fight me.) What it has also done is revolutionize court precedent.

Prior to internet ubiquity, courts were sometimes more receptive to plaintiffs attempting to hold third parties responsible for content generated by their users. The Communications Decency Act somehow managed to prevent the internet from becoming a litigation playground for bad faith operators. The internet was still in its infancy, but certain legislators and justices recognized the harm posed by the addition of direct liability for sites that did nothing else but give users a place to congregate and converse.

For years, this wasn’t a problem. Lately though, it appears certain legislators believe the best thing to do is introduce platform liability, if only because their hideous, bigoted supporters keep getting themselves booted off of popular social media services.

For now, sanity (mostly) prevails. Outside of corrupt outliers like the shady-as-fuck Supreme Court justice Clarence Thomas, higher courts seem mostly unwilling to start holding tech companies directly responsible for content created by their users.

And, for the most part, courts are unwilling to entertain outlandish conspiracy theories that suggest any government official merely referencing unwanted content is the same thing as the federal government demanding (under the full force of law) said content be removed from these services.

Lawsuit after lawsuit after lawsuit alleging government interference in online interactions has failed. Most of them have been brought in the Trump era — a four-year period where anti-vaxxers, conspiracy theorists, and extremely hateful people found themselves unexpectedly supported (and echoed) by the most powerful political leader in the world.

Fortunately, the court system generally doesn’t care who’s in office. The person with the finger on The Button doesn’t matter. The law does. So people who thought a president that unexpectedly embraced their extreme views would lead to courtroom wins are being informed none of that rhetoric matters when it comes to matters of established law.

The losses continue to mount. We can hope people are getting smarter after all this time. But I guarantee you that’s not the case. We’ll be seeing lawsuits like this forever, especially when the most extreme outliers of the Republican party are allowed to say extremely stupid shit without fear of being corrected, much less censured (which is not censored, btw) by fellow party members.

Lose all you want. We’ll make more. That’s the credo of the dumbasses that keep lobbing lawsuits into federal court without any apparent knowledge of how the law works.

This long intro brings us to yet another dismissal of a lawsuit claiming the federal government illegally prevented some MD-wielding hack/huckster from being guaranteed an audience on Amazon. Here’s Eric Goldman with a summary of the facts leading to this doomed-from-the-beginning lawsuit:

This case 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 Robert F. Kennedy Jr. Sen. Warren wrote a letter to Amazon expressing “concerns” about the book and Amazon’s role in promoting the book through its algorithms. The letter asked Amazon to review and publicly report on its algorithms. The book authors sued Sen. Warren for violating their First Amendment rights. The Ninth Circuit affirms the denial of a preliminary injunction.

The Ninth Circuit boots these claims to the curb, affirming the lower court’s ruling. It says Warren’s (apparently performative) letter to Amazon is not government interference in the author’s free speech rights. (The fact that Warren never followed up on her demand for a report on Amazon’s algorithms strongly suggests this was sent to score political points, rather than actually secure information on Amazon’s book-sorting methods.)

While the Ninth Circuit panel agrees [PDF] that Warren’s words in the letter and statement published on her site had the ability to cause reputational damage to the book’s author, it also recognizes that strong (even damaging) language is protected speech, even when used by politicians.

The plaintiffs (which include extremely ridiculous person Robert Kennedy Jr.) rely on two words from Warren’s letter to make their case. It doesn’t work.

We must read the phrase “potentially unlawful” in context, not in isolation. Senator Warren’s letter began by noting that this was the second time she had written to Amazon in recent months. Her prior correspondence, she explained, expressed concern that the company was providing consumers with false or misleading information about unauthorized KN95 masks. In the next sentence, she wrote that “[t]his 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.” (Emphasis added.) Placed in proper perspective, the phrase “potentially unlawful” most likely refers to the “sale of inappropriate products,” such as the unauthorized KN95 masks. Such a business practice could potentially constitute unlawful consumer fraud. By contrast, the letter does not explain which law Amazon might be violating by selling The Truth About COVID-19 or any other book.

Even if we accept the plaintiffs’ reading of the letter, however, referencing potential legal liability does not morph an effort to persuade into an attempt to coerce.

On top of that, if this was government coercion, it was the most ineffectual coercion ever.

Finally, a full review requires us to analyze not only the tone of the letter but also the tenor of the overall interaction between Senator Warren and Amazon. An interaction will tend to be more threatening if the official refuses to take “no” for an answer and pesters the recipient until it succumbs. In Bantam Books, for instance, the Commission sent repeated notices and followed up with police visits. Here, the record contains no evidence that Senator Warren followed up on her letter in any fashion, even though Amazon continued to sell The Truth About COVID-19 on its platform.

The court goes on to point out that Senator Warren was completely incapable of directly punishing Amazon for carrying the book, something that would have required unified Congressional effort and perhaps even a change of law. This was just one Senator saying things about one book Amazon carried. And nothing on the record suggests it went any further than Warren’s original playing-to-the-base letter she sent to Amazon’s execs.

The requested injunction (which would be of limited usefulness this far past the heyday of the COVID pandemic) is denied. The lower court’s refusal to grant credence to these far-fetched legal arguments is affirmed. And, since it’s a published opinion, the denial carries precedential weight. Of course, legal precedent rarely deters idiotic litigators. But it does make it much, much easier to dismiss their bogus claims long before they start costing innocent parties actual money.

Filed Under: 1st amendment, coercion, elizabeth warren, free speech, jawboning, persuasion, robert f. kennedy jr.
Companies: amazon