Another Jawboning Case Fails in the Ninth Circuit–Kennedy v. Warren

May 7, 2023 · by · in Content Regulation, E-Commerce

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 panel summarizes the legacy of the Bantam Books ruling: “an attempt to persuade is permissible government speech, while an attempt to coerce is unlawful government censorship.” To navigate the talismanic distinction between “persuade” and “coerce,” the panel adopts the Second Circuit’s approach, which looks at “(1) the government official’s word choice and tone; (2) whether the official has regulatory authority over the conduct at issue; (3) whether the recipient perceived the message as a threat; and (4) whether the communication refers to any adverse consequences if the recipient refuses to comply.” Applying those elements to this case:

  • word choice/tone. The court says it’s OK Sen. Warren used “strong rhetoric” and tried to publicly pressure Amazon. 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 fact the letter characterized Amazon’s general practices as “potentially unlawful” didn’t specifically target the book; plus, “not every official’s legal opinion reasonably resembles a threat.” Also, Sen. Warren didn’t follow up on the letter (which the court treats as a point against jawboning, but to me it’s also an indicator that the letter was a political stunt).
    • The panel distinguishes Backpage v. Dart because the sheriff’s letter in that case “threatened criminal sanctions if the credit card companies did not sever ties with the website,” which Sen. Warren’s letter did not do.
  • Regulatory authority. “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….it would have been unreasonable here for Amazon to believe that a single member of Congress could bring to bear coercive government power against it for promoting books on its platform.”
  • Recipient perception. After the letter, Amazon said it would not advertise the book. However, it’s unclear if Amazon had done any advertising before the letter, plus Amazon may have made the decision in light of the book’s reputational risks. Barnes & Noble dropped the book the day after Sen. Warren’s letter, but it wasn’t targeted by the letter and so its decision was not coerced.
  • Non-compliance consequences. The letter was silent about consequences for disregarding it. The panel acknowledges: “To be sure, an official does not need to say ‘or else’ if a threat is clear from the context.” However, Sen. Warren “never hinted” about any action she would take.

The panel summarizes:

We conclude that the plaintiffs have not raised a serious question as to whether Senator Warren’s letter constituted an unlawful threat in violation of the First Amendment. Her letter requested, but did not demand, that Amazon reevaluate its business practices regarding COVID-19 misinformation and report back any changes. The absence of a specific demand is unsurprising given that Senator Warren lacks direct regulatory authority over Amazon in this matter. There is no evidence that Amazon or any other bookseller perceived the letter as a threat, and the “potentially unlawful” language does not fundamentally 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.

Judge Bennett concurred separately because “plaintiffs have plausibly alleged that some portions of the letter could be read as coercive,” but that wasn’t enough to satisfy the burdens of a preliminary injunction.

Implications

Most Jawboning Cases Are DOA. The Second Circuit factors, now adopted by the Ninth Circuit, make most jawboning cases unwinnable. At minimum, most legislators’ public statements can never constitute jawboning, even if they are coupled with the explicit or implied threat that the legislator will introduce punitive legislation if they don’t get their way. Similarly, many executive branch public statements won’t be sufficiently backed by the threat of enforcement–unless they come from law enforcement (like Sheriff Dart’s Backpage letter) or someone with decision-making authority in an enforcement agency. The Ninth Circuit has already rejected several jawboning cases before adopting the Second Circuit test, and it’s clear from this ruling that few (if any) of the other cases percolating through the court system have a chance.

Everyone Sucks Here. No one looks good here.

  • I have no time or patience for pseudo-science that can literally kill people, so I sure hope many book retailers decide that material in that genre isn’t appropriate for their audiences. And whining to the courts about a bookseller’s editorial decisions carries a tinge of “sore loser.”
    • On that front, I’m horrified to see the polls where some Democratic voters are treating RFK Jr. as a serious presidential candidate. Are you kidding me???
  • Even if it wasn’t coercive, I’m uncomfortable with Sen. Warren’s approach to cajoling Amazon. Sen. Warren absolutely sent the message that she will use the power of her office to make Amazon’s life difficult if she doesn’t get what she wants–not an idle threat, either, as evidenced by her repeated targeting of Amazon. It is helpful for government officials to identify and remediate public health threats, but the book is also likely constitutionally protected speech. Sen. Warren could have advanced her public safety aim in a variety of less threatening–and less censorship-minded–ways. Instead, she chose the political stunt route.
    • On that front, the court is surely right that a single member of Congress can’t push through punitive legislation. However, the same is not true for individual state-level government officials, where the governance mechanisms lack the checks-and-balances that gridlock Congress. Thus, the Florida governor and legislator can keep passing blatantly retaliatory laws punishing Disney for its constitutionally protected public statements; and entrepreneurial state legislators (e.g., Utah Sen. Urquhart in the 2000s and California Assemblymember Buffy Wicks today) can single-handedly push through a string of punitive and poorly theorized bills targeting specific Internet companies.
  • Amazon gets points for rethinking the exposure it gave to the book, but it starts in a major points deficit for not proactively questioning whether it should disseminate the book in the first place and instead apparently only reacting after getting embarrassed by Sen. Warren’s spotlight. The sad reality is that harmful pseudo-science sells, but Amazon has the prerogative and perhaps moral obligation to decide that it won’t take that money.

Case citation: Kennedy v. Warren, No. 22-35457 (9th Cir. May 4, 2023)

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