This week, the Court addresses when and how a government’s communications to a private party regarding its distribution of books allegedly promoting misinformation can violate the First Amendment.

KENNEDY, JR. v. WARREN

The Court holds that Senator Elizabeth Warren’s letter advocating for a retailer to direct consumers away from Plaintiffs’ book was more persuasive than coercive, and thus likely did not violate the First Amendment.

The panel: Judges Watford, Friedland, and Bennett, with Judge Watford writing the opinion and Judge Bennett writing a concurrence.

Key highlight: “[R]eferencing potential legal liability does not morph an effort to persuade into an attempt to coerce … The relevant question remains whether the communication can reasonably be construed as coercive, and not every official’s legal opinion reasonably resembles a threat… For example, it would not be coercive for a government official to point out that a company’s conduct could be the basis of a consumer class action. Nor would it be coercive to warn a company that its practices could spur other government officials to consider legal action. A First Amendment problem arises only if the official intimates that she will use her authority to turn the government’s coercive power against the target if it does not change its ways.”

Background: In September 2021, Senator Elizabeth Warren sent a letter to a large online retailer requesting that the retailer change their algorithm to prevent consumers from being directed to misinformation regarding COVID-19. The letter specifically mentioned a book titled The Truth About COVID-19 and alleged that the book promoted falsehoods about the efficacy of the COVID-19 vaccines.

Plaintiffs, the author and the publisher of the book, brought suit against Senator Warren, alleging her letter violated the First Amendment. Plaintiffs sought a preliminary injunction that would require Senator Warren to remove the letter from her website, publicly retract it, and refrain from sending similar letters in the future. The lower court denied Plaintiffs’ request for a preliminary injunction.

Result: Ninth Circuit affirmed. The Court first held that the plaintiffs had standing to seek a preliminary injunction. Because Plaintiffs suffered reputational harm as a result of Senator Warren’s letter, Plaintiffs had sufficiently claimed a cognizable injury, and the preliminary injunction would redress that reputational harm by removing the stigma associated with Senator Warren’s critical statements.

Next, the Court held that Plaintiffs had failed to show they were likely to succeed on the merits, or even to raise “serious questions” on the merits. As the Court explained, “public officials may criticize practices that they would have no constitutional ability to regulate, so long as there is no actual or threatened imposition of government power or sanction.”  To decide on which side of the line Senator Warren’s letter fell, the court turned to a four-factor test from the Second Circuit, which requires the court to look 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.”  National Rifle Association of America v. Vullo, 49 F.4th 700, 715 (2d Cir. 2022).

First, the Court determined that while Senator Warren used strong rhetoric in her letter, her word choice and tone fell short of coercion. Rejecting Plaintiffs’ argument that the words “potentially unlawful” were coercive, the Court held that “referencing potential legal liability does not morph an effort to persuade into an attempt to coerce.”  Rather, the court noted, “[a] First Amendment problem arises only if the official intimates that she will use her authority to turn the government’s coercive power against the target if it does not change its ways”—something Senator Warren had not done.  Second, the Court concluded that Senator Warren did not have regulatory authority over the conduct at issue. “[A]s one member of a legislature who is removed from the relevant levers of power,” the Court reasoned, “Senator Warren would more naturally be viewed as relying on her persuasive authority rather than on the coercive power of the government.”  Third, the Court determined that there was no evidence that the letter’s recipient “changed its algorithms in response to Senator Warren’s letter, let alone that it felt compelled to do so.”  Fourth and finally, the Court concluded that letter failed to reference any explicit “or else.”  “A vast gap exists,” the Court noted, “between implying that an entity is morally complicit in causing deaths and accusing it of being an accomplice to homicide.”

Judge Bennett wrote a brief concurrence. Although he agreed that the district court had not abused its discretion in concluding that Plaintiffs failed to demonstrate a likelihood of success on the merits, he would not, as had the majority, go so far as to hold that they raised no “serious questions.”

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