Affronta in via sommaria il tema il Western District of Washington at Seattle, 9 maggio 2022, Case No. 2:21-cv-01508-BJR, giudice Barbara Rothstein, Kennedy e altri c. Elizabeth Warren (in proprio e nella funzione) (v. qui la pagina sul caso in CourtListener)
Il libro inibito era <<The Truth About COVID-19>>.
EW scrisse ad Amazon lamentando che favoriva la misinformation in tema di covid.-19 .
Concludeva la lettera by “ask[ing] [Amazon to] perform an immediate review of [its] algorithms and, within 14 days, provide both a public report . . . and a plan to modify these algorithms.” Id. at 5. The letter also asked Amazon to respond to four questions about its search algorithms and “Best Seller” labels, so that Sen. Warren could “fully understand Amazon’s role in facilitating misinformation about COVID-19 and its actions to address the issue.” Id. at 5-6.
Il libro era stato messo in vendita su Amazon e Barnes§Noble , che -dopo la pubblicità data alla lettera- lo esclusero dalle vendite oppure in modo opaco ne diminuirono la visibilità (overtly demoting, downgrading, or otherwise suppressing The Truth About COVID-19” without informing Plaintiffs. )
Essi citano allora EW per farle ritirare la lettera e inibirle simili condotte in futuro.
La Corte -prevedibilmente- rigetta. A nulla serve il precedente Bantham Books del 1963 invocato dagli attori, ove la censura era stata assai chiara, e analizzato dalla Corte. p. 7-8
First, the “thinly veiled threats” in Bantam Books were very thinly veiled. The commission’s notices were “phrased virtually as orders” and made explicit reference to the attorney general, the police, and the possibility of criminal prosecution. Id. at 67-68. Here, Defendant Warren’s alleged threat is derived primarily from her statements that the circulation of The Truth About COVID-19 was “potentially unlawful” and that COVID-19 misinformation has “led to untold illnesses and death.” Dkt. 8, Exh. A, at 1- 2; see Dkt. 7 at 10-17. Plaintiffs argue that booksellers could interpret these statements as threatening them with “legal liability for wrongful death or homicide.” Plaintiffs will have difficulty establishing that this is a reasonable or likely interpretation of Defendant Warren’s letter. The two noted phrases are not in the same paragraph and, even if they were, equating them to an accusation of homicide requires a vivid imagination. Furthermore, the vast majority of Defendant Warren’s letter is dedicated to persuasion—by arguing, for example, that “[o]ther major technology companies have recognized their role in propagating misinformation” and, unlike Amazon, taken steps to address it. Dk.8, Exh. A, at 5.
Next, Defendant Warren is far removed from the power to legally punish booksellers for continuing to sell The Truth About COVID-19. Although Plaintiffs are correct that “the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff [or third-party publisher] . . . is not necessarily dispositive,” that does not mean it will not be dispositive in most cases. Dkt. 7 at 11 (citing Backpage.com, 807 F.3d at 230).
(…) Put another way, the threat of legal sanctions can act as an unlawful restriction on speech, but a threat will only be perceived as such if there is a realistic chance the threatened action can be carried out. Plaintiffs are unlikely to successfully demonstrate that the booksellers reasonably perceived Defendant Warren’s letter as a threat. Cf. id. at 68 (“The Commission’s notices [were]
phrased virtually as orders [and] reasonably understood to be such by the distributor . . . .”).
In summary, the Court finds that Plaintiffs are unlikely to succeed on the merits of their claim that Defendant Warren’s letter constitutes a prior restraint on speech.
Il fumus boni iuris dunque non viene ravvisato: condivisibilmente , direi.