From Judge Barbara Rothstein's opinion yesterday in Kennedy v. Warren (W.D. Wash.), which strikes me as consistent with the precedents:
Plaintiffs Robert F. Kennedy, Jr., Joseph Mercola, Ronald Cummins, and Chelsea Green Publishing, Inc. ("Chelsea Green") brought a motion seeking a preliminary injunction against Defendant Senator Elizabeth Warren, in both her individual and official capacity, claiming that Defendant Warren violated Plaintiffs' First Amendment rights when she wrote a letter to Amazon criticizing a book Plaintiffs had published….
On May 16, 2021, Chelsea Green published The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, a book co-authored by plaintiffs Mercola and Cummins, and featuring a foreword by plaintiff Kennedy. The book was or is sold by Amazon, Barnes & Noble, and other unspecified booksellers. According to Plaintiffs, the book was at one point classified as a bestseller by USA Today and the Wall Street Journal. Plaintiffs describe the book as "sharply condemn[ing] government COVID policies, including lockdowns and vaccine mandates" and "cit[ing] scientific studies and highly credible news sources for the facts it reports."
On September 7, 2021, Defendant Warren wrote a letter to Amazon that described The Truth About COVID-19 as containing "misinformation about COIVD-19 vaccines and treatments." The letter criticized Amazon for selling and effectively promoting the book via the algorithms that govern its website's search engine and "Best Seller" rankings. For example, searches on Amazon.com for generic terms like "COVID-19" and "vaccine" often yielded Plaintiffs' book as the first result. Additionally, the book was labeled a "Best Seller" on the site and ranked as the "#1 Best Seller" in the "Political Freedom" subcategory of books. Defendant Warren's letter also identified several similar books, not authored by Plaintiffs, that were labeled as bestsellers and that also appeared near the top of COVID-19- or vaccine-related search results.
