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Robert F. Kennedy Jr. sues Elizabeth Warren over COVID-19 book complaint

Attorney Robert F. Kennedy, Jr. spoke against proposed Democratic bills that would add new doses of vaccines to attend school during a protest rally.Hans Pennink/Associated Press

Is the legal duel between anti-vaccine activist Robert F. Kennedy Jr. and Massachusetts Democratic Senator Elizabeth Warren a crucial First Amendment showdown, or is it much ado about nothing? It depends on which lawyers you ask.

Kennedy, along with authors Joseph Mercola and Ronald Cummings, and Chelsea Green Publishing, Inc. of White River Junction, Vt., filed a federal lawsuit against Warren in early November. The plaintiffs allege that Warren violated the US Constitution by urging online retailer Amazon to halt sales of their book as well as several others promoting unorthodox opinions about COVID-19. The suit was filed in Amazon’s headquarters city of Seattle, although Amazon is not a participant in the case.

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“She is saying that Amazon is complicit in homicide as a result of selling this book,” said Nathan Arnold, the attorney representing the authors and publisher of “The Truth About COVID-19,” written by Mercola and Cummins, with a foreword written by Kennedy. The book, which is highly skeptical of mainstream medical research about the disease and the vaccines created to combat it, has been denounced for spreading misinformation about the disease.

In September, Warren sent a letter to online retailer Amazon that criticized the company for selling the Mercola book and others that contained alleged misinformation about COVID-19. “The company’s search algorithms appear to contribute to the spread of COVID-19 misinformation,” Warren wrote. She said that “conspiracy theories about COVID-19 ... have led to untold illnesses and deaths.”

Warren called on Amazon to produce a report on whether its search algorithms encourage consumers to buy books containing false COVID information, and asked the company to present “a plan to modify these algorithms so that they no longer do so.” Warren did not ask Amazon to halt sales of the book, but to change its search program so that someone looking for books about COVID would not be directed to Kennedy’s book.

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The suit claims that Warren’s letter was an attempt to intimidate Amazon and other booksellers into dropping the book. “A reasonable interpretation of Senator Warren’s letter is that booksellers that promote or sell ‘The Truth About COVID-19′ are engaged in ‘potentially unlawful” conduct,” the lawsuit says. “A reasonable reader could understand Senator Warren’s letter to be warning Amazon that the continued sale of ‘The Truth About COVID-19′ may result in Amazon being legally responsible for wrongful death and homicide.”

The plaintiffs say Warren’s letter has chilled sales. They claim that Barnes & Noble briefly halted sales of the book online after Warren issued a press release publicizing her letter, but later resumed selling the book. In addition, the plaintiffs say that while Amazon still sells the book, it no longer lists it as a medical book, leading to reduced sales. The suit also says that Amazon no longer allows the publisher to advertise the book on its site, leading to still more lost sales.

Warren, Amazon, and Barnes & Noble did not respond to repeated requests for comment.

First Amendment lawyer David Keating, president of the Institute for Free Speech in Washington, D.C., called the lawsuit “really weak”, adding that he “would be shocked” if Kennedy and his allies prevail.

Keating agreed that “there are a lot of legislators making threats to various tech companies and social media platforms that they should be censoring more, and that’s really troubling.” But he said that Warren’s letter didn’t rise to the level of an actual threat to take action against Amazon if it kept selling the book. Instead, Keating regards it as little more than a request for information.

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But Boston civil liberties attorney Harvey Silverglate, co-founder of the Foundation for Individual Rights in Education, believes that Warren went too far.

“You’d think that a former Harvard Law professor would know better,” said Silverglate in an e-mail. “The fact is that Senator Warren seems to be improperly, if not unconstitutionally, using her position of high authority to pressure Amazon not to carry a book of which she personally disapproves.”

Silverglate added, “I not only believe that Kennedy will likely win the lawsuit, but that he should.”


Hiawatha Bray can be reached at hiawatha.bray@globe.com. Follow him on Twitter @GlobeTechLab.