UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ROBERT F. KENNEDY, Jr., a citizen No. 22-35457 of New York; JOSEPH MERCOLA, MD, a citizen of Florida; RONALD D.C. No. CUMMINS, a citizen of Minnesota; 2:21-cv-01508- CHELSEA GREEN PUBLISHING, BJR INC., a Vermont corporation, Plaintiffs-Appellants, OPINION v. ELIZABETH WARREN, Senator, United States of America, in official and in personal capacity, Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted January 9, 2023 Pasadena, California

Filed May 4, 2023 Before: Paul J. Watford, Michelle T. Friedland, and Mark J. Bennett, Circuit Judges. 2 KENNEDY, JR. V. WARREN

Opinion by Judge Watford; Concurrence by Judge Bennett

SUMMARY *

Standing / Preliminary Injunction / First Amendment

The panel affirmed the district court’s order denying plaintiffs’ request for a preliminary injunction that challenged a letter sent by Senator Elizabeth Warren to Amazon’s Chief Executive Officer requesting that the online retailer modify its algorithms so that they would no longer direct consumers to plaintiffs’ book titled The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal. Plaintiffs sued Senator Warren, alleging that her letter violated their First Amendment rights by attempting to intimidate Amazon and other booksellers into suppressing their publication. 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. The district court concluded that plaintiffs failed to raise a serious First Amendment question and that the equitable considerations did not weigh in their favor. The panel first considered whether the plaintiffs had standing to seek a preliminary injunction. The panel held

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. KENNEDY, JR. V. WARREN 3

that the alleged reputational harm to plaintiffs provided a sufficient basis for standing. Senator Warren’s letter disparaged the book by claiming that the book perpetuated dangerous falsehoods that have led to countless deaths. It also directly impugned the professional integrity of one of the authors. The plaintiffs have shown that these remarks, which Senator Warren broadcast to the public by posting the letter on her website, damaged their reputations. Reputational harm stemming from an unretracted government action is a sufficiently concrete injury for standing purposes. In addition, the panel held that the requested preliminary injunction would likely redress the plaintiffs’ reputational injuries. 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