Quack tycoon Joseph Mercola and anti-vaccine crank Robert F. Kennedy, Jr., have filed a lawsuit against U.S. Sen. Elizabeth Warren (D-MA) claiming she violated their First Amendment rights when she complained that Amazon was peddling COVID misinformation, citing Mercola’s recent misinformation-filled book on COVID as an example. Anti-GMO and anti-vaccine activist Ronnie Cummins and the book’s publisher are also plaintiffs.

According to a letter sent by Sen. Warren to Amazon last September, Amazon’s search and “Best Seller” algorithms consistently returned “highly-ranked and favorably tagged books based on falsehoods about COVID-19 vaccines and cures” when her staff performed searches for terms like “COVID-19” and “vaccine”. Mercola’s windbag-titled book, The Truth About COVID: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal, which Cummins co-authored and for which Kennedy wrote the introduction, topped the list. Amazon had also tagged the book as a Best Seller and the #1 Best Seller in the “Political Freedom” category.

Mercola, Sen. Warren notes in her letter, has been identified as “the most influential spreader of coronavirus misinformation online” and is apparently using his book to drive sales of supplements, despite the fact the FDA warned him to stop selling these supplements “for the unapproved and unauthorized treatment of COVID-19”. She unfavorably compared Amazon’s lack of effort in combating misinformation to that of fellow internet behemoths Facebook and Twitter, who have more aggressively supervised their content.

Sen. Warren’s letter charged that Amazon had engaged in a “pattern and practice” of spreading falsehoods and selling inappropriate products, conduct she deemed an “unethical, unacceptable, and potentially unlawful course of action”. She asked that Amazon perform “an immediate review” of its algorithms and report on the extent to which they are directing consumers to books and other products containing COVID misinformation.

In response, Amazon basically said that the algorithms worked as described because that’s the way they are set up.

As a retailer, we respect that our customers want access to a wide variety of viewpoints on the matter, which is why we continue to list the books in question.

Or, Sen. Warren characterized the response:

they can eliminate misinformation if they want to do it—but they won’t.

And apparently they didn’t, because Mercola’s book, as of yesterday, has a five-star rating based on over 5,000 reviews, is the #2 Best Seller in the “Political Freedom” category and #1 in both the “Propaganda and Political Psychology” and “Politics of Privacy and Surveillance” categories. Among the tens of millions of titles Amazon sells, it ranks #1,153 in Books. Amazon did, however, notify the publisher that it would no longer run ads for the book, although Amazon did not cite Sen. Warren’s letter as the reason. Barnes & Noble decided not to sell the book, a decision it later reversed. Again, there is no evidence linking the bookseller’s actions to Sen. Warren’s letter to Amazon.

Mercola and Kennedy are well-known to readers of this blog, but here’s a short summary of their nefarious activities.

Mercola is a scofflaw osteopath who built a multi-million-dollar empire selling dietary supplements and various other nostrums, which he promotes by fomenting distrust in “conventional” medicine and regulatory authorities, deceptively presenting his products as the safer, more “natural” alternative. His false claims for these products have gotten him in trouble with the FDA, as Sen. Warren noted. He is also rabidly anti-vaccine and has donated generously to anti-vaccine organizations. He is prolific spreader of misinformation on COVID and well as other health topics, which aids his trafficking in quackery when consumers buy into his rhetoric and his pricey products. This book is, in my view, just another means of profiting off the pandemic.

Kennedy, in my opinion, has probably done more to sow distrust in vaccines, including routine childhood vaccinations that have saved millions of lives, than just about any other person living today. (The despicable Barbara Loe Fisher and Andrew Wakefield are his chief competitors for the all-time record.) The pandemic has presented him a golden opportunity to traffic in lies and distortions about COVID and COVID vaccines, and he’s made the most of it, earning himself a spot (along with Mercola) among the Disinformation Dozen as a major source of COVID misinformation. Just this past Sunday, Kennedy (employing a common anti-vaccine trope) compared vaccine mandates to laws in Hitler’s Germany and invoked the name of Anne Frank. This “moral and intellectual decay” was rightly called out by the Auschwitz Memorial, among many others. Kennedy later “apologized“.

Ronnie Cummins, Mercola’s co-author, is the leader of the Organic Consumers Association, also funded by Mercola, which the Genetic Literacy Project calls “one of them most aggressive of North America’s anti-GMO groups”. The group is also anti-vaccine and republishes misinformation from highly unreliable sources like Mike Adams and Alex Jones.

I have not read Mercola’s book and do not plan to. Fortunately, Jonathan Jarry of McGill University’s Office for Science and Society has, thereby giving us a reliable source as to its contents. So, before we move on to the details of the lawsuit, let’s see what he has to say about The Truth About COVID (etc. etc.).

Summarizing the book is, in effect, summarizing the misinformation surrounding COVID-19. In short, Mercola and Cummins argue that the SARS-CoV-2 coronavirus was engineered in a laboratory in Wuhan, China, and its escape was capitalized on by every cabal, government, and corporation you can think of to scare people into looking away while they stole most of the world’s financial resources for themselves. None of the diagnostic tests, treatments, or public health measures can be trusted; rather, the disease is mild and protection is afforded to smart people who have no health conditions, eat the right food, and load themselves up with the right supplements.

Fact-checking the book’s thousands of erroneous claims would require weeks and, I suspect, the publication of a two-tome book.

Jarry does take a stab at pointing out some of the book’s factual errors and exaggerations. For instance, the book insists that pandemic restrictions will be “permanent” even as those restrictions are being lifted. It touts a supplement (quercetin, which Mercola conveniently sells) based on a computer simulation, not an actual in-vivo study, that is a preprint and not peer-reviewed to boot. Mercola’s fevered conspiracy mindset sees a pandemic preparedness simulation as evidence that the whole thing was planned.

So, in sum, people who have spent years profiting off misinformation with little consequence have filed a lawsuit claiming their freedom to speak out has been impaired. With that, let’s turn to some of the particulars.

The complaint, filed in the U.S. District Court for the Western District of Washington (because that is where Amazon is) incorrectly styles Mercola an “M.D.” (he’s a D.O.) and describes him as a “board-certified and licensed physician”, itself a sad commentary on the unwillingness of medical organizations and boards to sanction egregious conduct harmful to the public’s health. Kennedy is described as “prominent lawyer and professor and the founder and CEO of Children’s Health Defense Fund”, the innocuously-titled but vociferously anti-vaccine organization

The complaint quibbles with Sen. Warren’s characterization of the book as containing “false and misleading” information, including content disparaging COVID vaccines, which they defend as merely asserting that the vaccines’ effectiveness “has been wildly exaggerated and major safety questions have gone unanswered”. They attempt to support this by claiming

many renowned scientists have questioned the safety and efficacy of the COVID vaccines and thousands of physicians have asked for more openness to alternative COVID treatments.

The “renowned scientists” they cite are physician and anti-vaccine conspiracy theorist Robert Malone and former Trump advisor Peter Navarro, an economist, writing in a Washington Times op-ed. The “thousands of physicians” are signatories to a Great Barrington Declaration-type online manifesto that anyone can sign. To give you an idea of where that is coming from, Robert Malone himself and yet another anti-vaccine MD, Peter McCollough, have signed on.

In any event, the plaintiffs contend, it doesn’t matter whether what they say is truthful or not, their book is protected by the First Amendment and Sen. Warren’s implication that Amazon’s conduct might be unlawful, as well as her previous threats bust up Amazon on anti-trust grounds (unrelated to this incident), could cause Amazon to take behind-the-scenes action to suppress their views. Suing her in both her official capacity as a U.S. Senator and individually, they seek a declaration that Sen. Warren has violated their constitutional rights, a preliminary and permanent injunction against her doing so in the future, and damages.

The U.S. Attorney for the Western District of Washington, representing her in her official capacity, filed opposition to the motion for preliminary injunction, a Motion to Dismiss (which basically says that, even if everything the plaintiffs allege in their complaint is true, they still don’t have a viable claim) and a Motion for Summary Judgment (which says that, based on all the undisputed facts, she wins).

She is represented in her individual capacity by election law expert and Democratic operative Marc Elias, who joined in the U.S. Attorney’s arguments.

The trouble with the plaintiffs’ claims, the U.S. Attorney points out, is that the plaintiffs don’t allege, nor have they presented, any evidence that Amazon or anyone else has taken any action against anyone because of Sen. Warren’s letter. In response, the plaintiffs say they don’t need any such evidence, that what they characterize as her “threat” to Amazon alone is sufficient as a matter of law.

Other defenses are raised as well, such as sovereign immunity and the Speech or Debate Clause of the Constitution, but we won’t get that much into the weeds, except to note a recent interesting case she cites, Association of American Physicians & Surgeons v. Schiff.

The Association of American Physicians & Surgeons (AAPS) sued Rep. Adam Schiff (D-CA ) after he, similarly to Sen. Warren, sent letters to Amazon, Google, and Facebook, encouraging them to use their platforms to prevent inaccurate information on vaccines and requesting information about what the companies were doing to prevent misinformation. He also, in an unrelated Congressional hearing, questioned certain legal privileges these companies enjoyed. At no time did he mention the AAPS.

SBM’s Dr. David Gorski called out the AAPS way back in 2008 as an organization that

tries to represent itself as a legitimate medical professional society, but in reality it promotes antivaccine views, HIV/AIDS denialism, and an Ayn Randian view of the world in which doctors are supermen, Medicare is unconstitutional, and the government should never interfere with physicians’ prerogatives.

It is unsurprising, then, the AAPS has been promoting dubious COVID information. In the lawsuit, the AAPS complained that, among other things, “Amazon removed from its platform for streaming videos the popular videos Vaxxed and Shoot ‘Em Up: The Truth About Vaccines“, both rank anti-vaccine propaganda.

When Amazon and other companies took action, resulting in the diminished ability of AAPS and others to spread misinformation, the AAPS took umbrage and sued Rep. Schiff although they, like Mercola et al., had no evidence that their downfall had anything to do with him.

In a February, 2021, decision, the court granted Rep. Schiff’s Motion to Dismiss the complaint based, in part, on the alternate grounds (1) that the plaintiffs had failed to allege anything but an “implied” connection between Rep. Schiff’s actions and that of the tech companies and (2) his immunity under the Speech or Debate Clause, which provides that

for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.

The clause protects Members of Congress and Senators from lawsuits arising from their conduct during official legislative functions, such as hearings, as well as when they engage in other activities in service to their elected office, such investigations and gathering information.

Whether or not she prevails on the Speech or Debate Clause defense, as pointed out in Sen. Warren’s argument in support of her motions, government officials are free to try to convince private parties to remove content protected by the First Amendment that they find dangerous to the public’s health, but they are not free to coerce that removal through threat of legal action or government sanction. In her view, and mine, Sen. Warren’s letter falls far short of “coercion”. We’ll see if the court agrees, if it reaches this question at all, and otherwise how the case is decided. Stay tuned.

Author

  • Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.    

Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.