Robert Kennedy, Jr. v. Elizabeth Warren, 66 F.4th 1199

Plaintiffs are the authors and publisher of The Truth About COVID-19; they allege Senator Elizabeth Warren’s September 7, 2021 letter to Amazon’s CEO criticized Amazon’s algorithms for promoting COVID‑19 misinformation and specifically targeted their book.
Warren asked Amazon to review its algorithms and, within 14 days, provide a public report and a plan to modify algorithmic promotion of COVID‑19 misinformation; she posted the letter and issued a press release.
Plaintiffs sued Warren seeking a preliminary injunction ordering removal of the letter from her website, a public retraction, and prohibition on sending similar letters, claiming Warren’s letter unlawfully coerced booksellers and violated the First Amendment.
The district court denied the preliminary injunction, finding plaintiffs failed to raise a serious First Amendment question and equitable factors did not favor relief.
The Ninth Circuit held plaintiffs had standing based on reputational injury from the public letter but affirmed the denial of the preliminary injunction, concluding Warren’s letter was persuasion, not coercion under Bantam Books.
Judge Bennett concurred in the judgment (no abuse of discretion) but would have treated the coercion question as at least a serious issue; he nonetheless agreed the injunction was not warranted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to seek preliminary injunction	Warren’s public letter caused reputational harm, chilling, and bookseller suppression	Letter criticism is political speech and plaintiffs lack a concrete, redressable injury	Plaintiffs have standing: reputational harm from an unretracted government statement is concrete and likely redressable by the requested injunction
Whether Warren’s letter unlawfully coerced intermediaries (Bantam Books line)	Language (e.g., “potentially unlawful”), public posting, and consequences (Barnes & Noble removal/ads decisions) show coercion that chilled distribution of their book	Letter was a request framed as persuasion, lacked a threat, Warren had no unilateral regulatory power, and there is no evidence Amazon perceived it as a threat	Letter was persuasion, not coercion. Applying the four‑factor framework (word/tone; regulatory authority; recipient perception; reference to adverse consequences), plaintiffs did not raise a serious question on the merits
Appropriateness of preliminary injunction / abuse of discretion	Likely to succeed on merits and suffer irreparable harm absent injunction	Plaintiffs unlikely to succeed; equities and public interest do not favor injunction	District court did not abuse its discretion in denying preliminary relief; affirmance (Bennett concurred in result but thought some coercive reading was plausible)

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (government’s informal censorship and thinly veiled threats can violate the First Amendment)
Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003) (distinguishes permissible persuasion from impermissible coercion by officials)
Carlin Commc’ns, Inc. v. Mountain States Tel. & Tel. Co., 827 F.2d 1291 (9th Cir. 1987) (threat of prosecution by a government lawyer was coercive and unconstitutional)
Am. Family Ass’n v. City & County of San Francisco, 277 F.3d 1114 (9th Cir. 2002) (public officials may denounce speech and urge others to act so long as no threatened use of government power)
Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (law‑enforcement letter to payment processors that invoked criminal statutes constituted coercion)
Nat’l Rifle Ass’n of Am. v. Vullo, 49 F.4th 700 (2d Cir. 2022) (articulated non‑exclusive four‑factor test for persuasion vs. coercion)
VDARE Found. v. City of Colorado Springs, 11 F.4th 1151 (10th Cir. 2021) (distinguishes legal opinion from coercion)
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (standard for preliminary injunctions)