Elizabeth Warren: Missing Context

Senator Elizabeth Warren wants to break up Amazon. She said so during her campaign for the Democratic nomination for President in 2020 when she announced a plan titled “Break Up Big Tech” whose goals included “unwinding up some of the uncompetitive mergers like Amazon, Whole Foods, and Zappos.” In an interview with Pen America on the subject of freedom of expression, she said:

We need to stop this generation of big tech companies from profiting off of lies to the American people. That’s why my administration will make big, structural changes to the tech sector—including breaking up giant tech companies like Amazon, Facebook, and Google—and requiring large tech platforms to be designated as “Platform Utilities” and broken apart from any participant on that platform. My administration will also appoint regulators committed to reversing illegal and anti-competitive tech mergers.

And if she can’t break it up (yet) she wants to prevent future mergers and acquisitions by Amazon. For example, her Pandemic Anti-Monopoly Act would, says Warren, “slow down the trend” of “giant corporations taking advantage of this global crisis to gobble up struggling small businesses and to increase their power through predatory mergers.”

If enacted, the bill would “direct the FTC to engage in rulemaking to establish a legal presumption against mergers and acquisitions that pose a risk to the government’s ability to respond to a national emergency.”

The bill has a long way to go, as do others like it. So Warren is not sitting around waiting for Congress to stymie Amazon’s next possible merger. Like former President Obama, she has a phone and a pen.

On June 30, 2021, Warren sent a letter to Lina Khan, whom she had first met when Khan was a law student at Yale and the author of “Amazon’s Antitrust Paradox.” Back then, according to a 2019 article in The New Yorker, Khan was one among a “handful of legal scholars and journalists… trying to sound the alarm about rising monopolies.” Now Khan is chair of the Federal Trade Commission and in the letter Warren asked her to conduct a “broad and meticulous review” of Amazon’s acquisition of Metro-Goldwyn-Mayer Studios (MGM).

Warren noted that:

[T]he FTC… has a history of holding Amazon accountable for unfair business practices that harm consumers. Earlier this year, Amazon settled for over $61 million with the FTC after Amazon failed to pay Amazon Flex drivers the full amount of tips they received from Amazon customers over a two and a half year period… A few years prior, the FTC sued Amazon for violating the FTC Act “by billing parents and other Amazon account holders for charges incurred by their children without the permission of the parent or other account holder.” Amazon eventually settled for more than $70 million in consumer refunds.

The letter to Lina Khan was not private correspondence. Warren issued a press release about it, and both the press release and the letter are available on Warren’s .gov website. The press release explains how the kind of investigation that the Senator wants the FTC to conduct would differ from the norm:

Senator Warren calls into question the FTC’s typical approach when reviewing vertical transactions: a narrow assessment primarily focusing on price effects in the relevant product or service markets. However, because this deal will affect Amazon Prime, a service tied to a wide range of additional Amazon products and services that affect broad sectors of our economy, this transaction requires meticulous antitrust scrutiny.

The press release also states:

Recently, Senator Warren made a statement calling the Biden administration’s designation of Lina Khan as Chair of the Federal Trade Commission “tremendous news” and “a huge opportunity to make big, structural change by reviving antitrust enforcement and fighting monopolies.”

To summarize: In a public letter, Warren reminds Khan (whose appointment she welcomed, to put it mildly) that typically when the FTC investigates Amazon over particular practices it manages to it shake loose a few million dollars, $61 million here, $70 million there. The next investigation, says Warren, should be atypically broad and meticulous.

Hold that thought.

Kennedy v. Warren

On September 7, 2021, Senator Warren sent another letter, this one to Amazon, the company she wants to see broken up and, in the meantime, subjected to an investigation of the proctological variety. The letter refers to a book titled The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, the sub-title of which is Why We Must Unite in a Global Movement for Health and Freedom.

In sending that letter, did Senator Elizabeth Warren use her official position to try to suppress sales of the book in violation of the First Amendment to the Constitution of the United States? That is the allegation of the book’s authors, the writer of the foreword, and publishers. They have a lawsuit pending in the U.S. District Court for the Western District of Washington, Seattle, namely the case of Robert F. Kennedy, Jr.; Joseph Mercola, MD; Ronald Cummins; and Chelsea Green Publishing, Inc. v. U.S. Senator Elizabeth Warren, docket no. C21-150BJR.

In trying to get the case dismissed Senator Warren relies on several legal arguments, two of which are particularly noteworthy: (1) sovereign immunity; and (2) the U.S. Constitution’s Speech or Debate Clause. Before discussing the two legal arguments, let us examine the circumstances that led to their deployment.

The Letter to Amazon

The parties to the lawsuit do not agree on whether Senator Warren violated the plaintiffs’ speech rights. But three sets of facts are not in dispute:

First, Elizabeth Warren is the senior United States Senator from Massachusetts, who sits on the Senate Finance Committee and its subcommittees on: (1) Fiscal Responsibility and Economic Growth, which she chairs; (2) Health Care; and (3) Taxation and IRS Oversight. She also sits on the Senate Committee on Banking, Housing and Urban Affairs and its subcommittees on: (1) Economic Policy, which she chairs; (2) Financial Institutions and Consumer Protection; and (3) Securities, Insurance, and Investment.

A short aside: As readers may know, Senate committees have the authority to subpoena witnesses and documents, and refusal to comply can lead to criminal contempt proceedings. Plus, Senators can—and do—urge executives agencies, such as the Federal Trade Commission, to launch investigations that can lead to multi-million dollar payouts.

Second, on September 7, 2021, Senator Elizabeth Warren wrote a letter to Andy Jassy, Chief Executive Officer of Amazon which includes a complaint about the fact that searches for the terms “COVID-19” and “vaccine” yielded, at top of the list of results, a book titled The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal.

Or, rather, as you will observe if you follow the link, she wrote to “Andy Jassy, Chef Executive Officer,” as opposed to “Chief.” Now who among us, even those of us in the legal profession, has not made such a typographical error right at the very outset of a piece of writing? All have so sinned, no doubt, and I count myself chef of sinners (cheap gag, sorry). So shame on those who would apply a higher standard to someone just because she happens to be not only the Leo Gottlieb Professor of Law, Emerita, at Harvard Law School, but also a Fellow of the American Academy of Arts and Sciences.

Anyway, Senator Warren’s letter to Mr. Jassy concludes in this way:

Given the seriousness of this issue, I ask that you perform an immediate review of Amazon’s algorithms and, within 14 days, provide both a public report on the extent to which Amazon’s algorithms are directing consumers to books and other products containing COVID-19 misinformation and a plan to modify these algorithms so that they no longer do so. In order to fully understand Amazon’s role in facilitating misinformation about COVID-19 and its actions to address the issue, I also request responses to the following questions by September 22, 2021:

  1. What are Amazon’s existing policies regarding the listing, promotion, and sale of books and other products containing COVID-19 misinformation on its platform?
  2. What specific actions has Amazon taken to address the spread of COVID-19 misinformation via search results or other uses of its platform?
  3. Why do Amazon’s search algorithims [sic] prominently list books with COVID-19 misinformation?
  4. Why do books with COVID-19 misinformation receive “Best Seller” tags from Amazon? What criteria does Amazon use to award these tags, and what steps does Amazon take to highlight products containing the tag?

Yes, in question number 3 she mis-spelled the word “algorithms,” which is not quite as amusing as her writing “chef” instead of “chief” but still worth a smile. And I feel in need of a smile when pondering an attempt at content-based regulation of speech on the part of a Harvard law professor who also represents my home state in the United States Senate.

Third in the list of facts that are not in dispute are the following: Joseph Mercola and Ronald Cummins are the authors of the book titled The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, the sub-title of which is Why We Must Unite in a Global Movement for Health and Freedom. Robert F. Kennedy, Jr. wrote the foreword, and Chelsea Green Publishing, Inc. published it.

Senator Warren states that “the book perpetuates dangerous conspiracies about COVID-19 and false and misleading information about vaccines. It asserts that vitamin C, vitamin D, and quercetin—supplements sold on Mercola’s website—can prevent COVID-19 infection,” and “contends that vaccines cannot be trusted, when study after study has demonstrated the overwhelming effectiveness and safety of COVID-19 vaccines.”

To be fair, regarding the part about the “overwhelming effectiveness” of COVID-19 vaccines, she did write the letter in back in September 2021, which was before most of the people catching COVID-19 and ending up in hospital were people who had already been fully vaccinated against COVID-19. That said, it was after the revelation that some six months following injection, the efficacy of Johnson & Johnson’s Janssen vaccine waned to 13% (not by 13%, please note, but to 13%).

In any event, a fifth fact that seems beyond dispute is that Senator Warren does not like the book. In her letter she does not claim to have read it. Nor have I, by the way. I only learned of it from a news item about the lawsuit that popped up on my Android phone, because Google offers me suggestions as to what to read and Google knows best. Now I have ordered the book, and did so, sardonically, via Amazon.

The Reason for the Letter

Why did Senator Warren write the letter? Because she wants Amazon to “take aggressive action to stamp out COVID-19 misinformation.” At least, that is what it says in the press release on her website.

But according to her lawyers, all she asked of Amazon was that the company:

“conduct a review of the manner in which it[s] search algorithms serve to unduly promote vaccine misinformation in response to relatively generic searches for information concerning COVID-19, develop a plan to modify these algorithms so that they no longer do so, and publicly respond to her enumerated inquiries so that Amazon’s role in facilitating misinformation about COVID-19 and its actions to address the issue can be fully understood.”

That was a quote from the document Senator Warren’s lawyers filed in support of her motion to dismiss. Describing it merely as a memorandum of law would hardly do it justice, so I set forth its full title: “Notice of motion and consolidated memorandum of points and authorities in opposition to motion for preliminary injunction and in support of cross-motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment.” This is why lay-people can’t help suspecting that lawyers really do get paid by the word.

Question: What was the purpose of the letter?

Answer 1: For Amazon to take aggressive action to stamp out COVID-19 misinformation, says the press release.

Answer 2: For Amazon to conduct a review, develop a plan, and help the Senator understand Amazon’s role in facilitating misinformation about COVID-19 and its actions to address the issue, says the legal memorandum.

The aim of this brief catechetical exercise is not to imply an inconsistency between the press release and the legal memorandum. Far from it. The one does not contradict the other, so far as I can tell. Indeed, were I in Andy Jassy’s shoes, a request from Senator Warren (who chairs the Senate Subcommittee on Economic Policy, sits on the Senate Subcommittee on Taxation and IRS Oversight, and who urges the FTC to investigate my company, which she regularly calls to be broken up) asking that I publicly explain my role in facilitating misinformation about COVID-19 and my actions to address the issue would certainly nudge me into taking aggressive action. I would consider taking aggressive action against whatever poor soul the Senator wanted to be aggressively acted upon.

But Andy Jassy is made of sterner stuff than I, which is why I was able to go on Amazon and purchase The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, a book I would probably not have heard about but for the Senator’s letter and the ensuing lawsuit of Kennedy, et al v. Warren.

Sovereign Immunity

Among the several arguments that Warren relies on in attempting to have the lawsuit dismissed is the doctrine of sovereign immunity.

“Insofar as Plaintiffs are attempting to assert claims against Defendant Warren in her official capacity, they are in effect bring[ing] suit against the Federal Government.” Memorandum, p. 16.

To claim that a suit against you is a suit against the government itself does sound a tad overweening, up there with “L’etat, c’est moi,” as Louis XIV may have said, and “Attacks on me, quite frankly, are attacks on science,” as Anthony Fauci really did say.

But as a general rule, the doctrine of sovereign immunity does bar claims against officials who were acting in their official capacity. Warren has a legitimate legal basis for seeking to hide behind sovereign immunity. However, the doctrine has exceptions, called the Larson exceptions after the Supreme Court decision in Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 (1949). One of the exceptions is called the Larson-Dugan exception, the Dugan part of the moniker coming from another Supreme Court decision, Dugan v. Rank, 372 U.S. 609 (1963). The Larson-Dugan exception comes into play where the plaintiffs allege that the government officer acted in an unconstitutional manner.

The question of whether to apply the Larson-Dugan exception came up a few years ago in a case where the plaintiffs alleged that an elected federal officer had acted in excess of his authority under the U.S. Constitution and had violated the separation of powers. Because of this allegation of unconstitutional conduct, the U.S. District Court applied the Larson-Dugan exception thereby allowing the case against the defendant to go forward. The lead plaintiff in that case was the League of Conservation Voters and the defendant was President Donald J. Trump. League of Conservation Voters v. Trump, 303 F. Supp. 3d 985 (D. Alaska 2018).

As in the League of Conservation Voters case against Donald Trump, the basis of the case against Elizabeth Warren is the allegation that in the course of performing her official role she acted in an unconstitutional manner, i.e. she used her official position to violate the First Amendment. Perhaps Warren will fare better than Trump. Even if she does not, she has another argument, one that is more noteworthy than sovereign immunity.

Speech or Debate Clause

If Warren is not immune because she is the sovereign (or at least a bit of it) she should be immune, say her lawyers, because of the Speech or Debate Clause found in clause 1 of section 6 of article 1 of the Constitution of the United States. This constitutional protection covers not only actual speech and debate that legislators engage in within Congress, the courts have held, but also “collecting information in furtherance of legislative activities.” And that, the argument goes, is all Warren was doing, merely gathering information.

“Here, Defendant Warren’s letter to Amazon… was part of Defendant Warren’s information-gathering and fact-finding responsibilities as a U.S. Senator. The letter sought responses to specific questions concerning a matter on which the Senator actively legislates, votes, and engages in her other official responsibilities.” p. 21

It is certainly fair to say that Amazon is a matter on which the Senator actively legislates, votes, and engages in her other official responsibilities, e.g. urging the FTC to investigate it until the cows come home. But in her letter she sought more than answers to her questions. She also asked Amazon to “perform an immediate review of Amazon’s algorithms and, within 14 days, provide both a public report on the extent to which Amazon’s algorithms are directing consumers to books and other products containing COVID-19 misinformation and a plan to modify these algorithms so that they no longer do so.”

She asked Amazon to perform a review and come up with a plan to change its algorithms so that those algorithms no longer direct consumers to “books and other products containing COVID-19 misinformation.” Asking for a particular course of conduct is doing more than simply asking for answers to questions.

The memorandum continues:

Defendant Warren has no statutory or regulatory authority nor is she specifically authorized by law to refer matters for prosecution to any law enforcement body. p. 23

Again, true enough. There are no statutes or regulations that authorize Senators to sic the cops on their opponents.

She is but a single member of a deliberative legislative body composed of 100 members. p. 23

Correct, there are 100 senators, and Elizabeth Warren is only one of them. She is not two of them, or three of them, or any number greater than that. She is only one. Or, to put the same fact another way, she is one of only 100 members of the United States Senate. Plus, she happens to be a member of the Democratic Party, which is the majority party in both the Senate and the House and the party of the current President.

The memorandum continues:

Specifically… Defendant Warren’s letter did not threaten that any consequence would befall Amazon regardless of any action on its part in response to the letter. p. 24.

Fair enough. I cannot identify any statement in the letter describing or even hinting at what Senator Warren will do if Amazon either complies or fails to comply. She does not say.

Defendant Warren’s letter does not expressly or impliedly threaten Amazon with any government sanction. p. 24

Wait, not even impliedly? Is there nothing in the letter that constitutes an implicit threat toward Amazon? No, nothing.

But context, as they say, is everything.

Elizabeth Warren’s letter does not have to threaten Amazon. Threatening Amazon is what Elizabeth Warren does all the time.

Even if Mr. Jassy had completely forgotten that Warren has spent years campaigning for the break-up of his company and wanted to learn more about this mysterious new correspondent, he need only go to Warren’s website, click the magnifying-glass icon, and enter the word “Amazon.” Up will pop a lot of press releases and blog posts about the company, none of them laudatory, including one from July 2021 in which Warren calls for not just one but two federal agencies to investigate Amazon for selling masks that are not approved by the FDA.

As CEO of Amazon, Andy Jassy has a legal duty to act in the best interests of his shareholders. He knows that Warren wants to see his company broken up, he knows that the FTC is reviewing his company’s proposed merger with MGM, and he knows that Warren is urging the FTC to make that review an excruciating one. These are facts that Warren does not need to spell out in a letter. They are common knowledge and provide the context for all her interactions with the company.

Warren argues that the Speech or Debate Clause immunizes her from suit because she wrote the letter to Amazon in order to obtain information. But the information she sought to obtain was, in a nutshell, the company’s plan to stop directing consumers to the books about COVID-19 that Warren does not approve of, books that she would like Amazon to aggressively “stamp out” in her words.

That is a form of information gathering, I suppose. But then so is the question, “When are you going to open the register and hand over the cash?”

All this is not to say that the court should necessarily deny Warren the immunity that the Speech or Debate Clause confers on members of the House and Senate. That is a matter for the judge. It is simply to point out what Warren leaves unsaid in her memorandum. She does not state why it is that she might expect Amazon to respond to her request, why—in the absence of any repercussions for noncompliance—she would bother making such requests.

In her memorandum Warren focuses only on her lack of power to inflict harm on Amazon. If the company should fail to comply with her information-gathering, what could she do? She is but one of 100 senators, after all. So why on earth would Mr. Jassy (unless he struggles with approval addiction) choose to comply?

Because in real life, as a prominent U.S. Senator with the ear of the chair of the FTC, Elizabeth Warren has real power over Amazon. Sure, she does not have the power to unilaterally enact her Pandemic Anti-Monopoly Act or undo Amazon’s mergers and acquisitions. But she has influence. She has influence over the agency that can stymie Amazon’s plans and she has influence in the committees and subcommittees that can subpoena Amazon’s executives on pain of contempt and subject them to public hectoring and to leading, loaded questions of the sort that lawyers could not get away with in court.

Warren’s influence is power, and she used that power to urge Amazon to take steps that would reduce the sale of a book that she does not want people to read because she does not approve of the content.

Perhaps The Truth About COVID-19 does contain untruths and perhaps some people will believe them. Similarly, some people may read Warren’s statement that “study after study has demonstrated the overwhelming effectiveness and safety of COVID-19 vaccines” and believe her. Yes, many studies have demonstrated the “overwhelming effectiveness” of COVID-19 vaccines, but many other studies—and the everyday experience of millions of people across the world over the past few months—have demonstrated that the effectiveness is not, in fact, overwhelming. Like her argument in court that she did not even implicitly threaten Amazon and has no power to punish the company, the claim in Warren’s letter lacks context.

And the context is important. Failing to mention context is the sort of thing that earns you a badge of shame on Facebook for spreading misinformation about COVID-19, as the British Medical Journal, among many others, can attest.

Conclusion

Elizabeth Warren made use of her position as a Senator to try to persuade Amazon to suppress sales of a book. Whether that amounts to an unconstitutional abuse of her position is for the U.S. District Court in Seattle to decide. But it is also a matter for the rest of us to think about. Members of Congress have power over the entities that serve as the conduit for speech, our speech. If their position as Senators and Representatives grants them immunity and impunity to use those entities to stamp out our speech, one obvious question is how do we persuade them to stop?

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Peter Vickery

Peter Vickery is an attorney who practices in Amherst, Massachusetts. He is a graduate of Oxford University, Boston University School of Law, and UMass Amherst, and he served one term on the Massachusetts Governor's Council, the elected 8-member body that reviews the Governor's choice of judges.

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