Kennedy, Jr. v. Warren

“Reputational harm stemming from an unretracted government action is a sufficiently concrete injury for standing purposes. “ Foretich v. United States, 351 F.3d 1198, 1212-13 (D.C. Cir. 2003). To draw the line between persuasion and coercion, the Second Circuit has formulated a non-exclusive four-factor framework that examines: (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).

Senator Elizabeth Warren wrote Amazon a letter asking them to adjust their algorithms to prevent consumers from being directed to a book she believed provided false and misleading COVID-19 information. She also published the letter online. The book’s authors and publisher appealed the district court's denial of their motion for a preliminary injunction, claiming the letter caused reputational harm and attempted to compel Amazon to suppress their book, thus exerting unlawful censorship and violating their First Amendment rights under Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). 

“Reputational harm stemming from an unretracted government action is a sufficiently concrete injury for standing purposes.” Foretich v. United States, 351 F.3d 1198, 1212-13 (D.C. Cir. 2003).  Because Senator Warren's letter contained denigrating statements, the authors and publisher established standing and demonstrated that the reputational harm caused by Senator Warren was an injury for which an injunction could provide an equitable remedy.  See LA Alliance for Human Rights v. County of Los Angeles, 14 F.4th 947, 956-57 (9th Cir. 2021).  

To draw the line between persuasion and coercion, the Second Circuit formulated a non-exclusive four-factor framework that examines: (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). The Court found that: (1) Senator Warren's word choice and tone were persuasive, not coercive; (2) Senator Warren did not have regulatory authority over Amazon; (3) no evidence indicated Amazon altered its platform algorithms or felt coerced to do so as a consequence of Senator Warren's letter; and (4) because there was no direct mention of negative consequences if Amazon failed to comply, the letter attempted to persuade and mobilize public sentiment on a public health issue, which constituted permissible conduct for a government official.  The Court held that authors and publisher failed to meet their burden to obtain a preliminary injunction.   AFFIRMED.