Interessante lite sul diritto della senatrice Elizabeth Warren di chiedere ad Amazon di togliere/oscurare dal suo marketplace un libro negazionista del covid 19 (prefato da Robert Kennedy, notorio no-vax)
Tale richiesta non è coercitiva verso gli aa. del libro , non violando il 1 emendamento (che riguarda condotte pubbliche, anzi dello Stato)
Si tratta dell’appello del 9 circuito 4 maggio 2023, No. 22-3545m, Robert Kennedy , Mercola e altri c. E. Warren.
Il rigetto della domanda di inibitoria (They sought a preliminary injunction requiring Senator Warren to remove the letter from her website, to issue a public retraction, and to refrain from sending similar letters in the future) è confermato in appello.
Era assai improbabile un risultato diverso: è impossibile vedere nella mossa di Warren una coercizione anzichè un mera persuasione vs. Amazon.
Dal Summary iniziale:
Turning to the merits, the panel held that because the plaintiffs did not raise a serious question on the merits of their First Amendment claim, the district court did not abuse its discretion by denying a preliminary injunction. The crux of plaintiffs’ case was that Senator Warren engaged in conduct prohibited under Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), by attempting to coerce Amazon into stifling their protected speech. Following Bantam Books, lower courts have drawn a sharp line wherein a government official’s attempt to persuade is permissible government speech, while an attempt to coerce is unlawful government censorship.
The panel applied a four-factor framework, formulated by the Second Circuit, and agreed with the district court that Senator Warren’s letter did not cross the constitutional line between persuasion and coercion. First, concerning the government official’s word choice and tone, the panel held that Senator Warren’s words on the page and the tone of the interaction suggested that the letter was intended and received as nothing more than an attempt to persuade.
Second, concerning whether the official had regulatory authority over the conduct at issue, the panel held that this factor weighed against finding impermissible coercion. Elizabeth Warren, as a single Senator, had no unilateral power to penalize Amazon for promoting the book. This absence of authority influenced how a reasonable person would read her letter. Third, concerning whether the recipient perceived the message as a threat, the panel held that there was no evidence that Amazon changed its algorithms in response to Senator Warren’s letter, let alone that it felt compelled to do so. Fourth, concerning whether the communication referred to any adverse consequences if the recipient refused to comply, the panel held that Senator Warren’s silence on adverse consequences supported the view that she sought to pressure Amazon by calling attention to an important issue and mobilizing public sentiment, not by leveling threats. Senator Warren never hinted that she would take specific action to investigate or prosecute Amazon.
The panel concluded that the plaintiffs had not raised a serious question as to whether Senator Warren’s letter constituted an unlawful threat in violation of the First Amendment. Accordingly, the panel held that the district court did not abuse its discretion in denying the plaintiffs’ request for a preliminary injunction.
(notizia e link alla sentenza dal blog del prof. Eric Goldman)