Lawyers argued Wednesday over whether a 1963 Supreme Court case involving Rhode Island booksellers had any relevance to a White River Junction book publisher’s lawsuit against U.S. Senator Elizabeth Warren, D-Mass.
The hearing in the Western Washington District Court in Seattle was the first in Chelsea Green Publishing’s lawsuit against the senator, alleging she violated the First Amendment by stifling free speech when she wrote a public letter to Amazon condemning the bookseller’s sale of Chelsea Green’s book, “The Truth About Covid-19.
The plaintiffs include Chelsea Green; Joseph Mercola, the author of the book; co-author Ronald Cummins; and anti-vaccine figurehead Robert Kennedy Jr., who wrote a foreword for the book.
They are seeking unspecified damages following Warren’s September 2021 letter, which they say caused Barnes & Noble to stop selling the book, among other effects.
Margo Baldwin, president and publisher of Chelsea Green, has been widely criticized for her publishing house‘s sale of books promoting Covid-19 misinformation, including those by Mercola.
“This case is simple,” said Jed Rubenfeld, plaintiffs’ attorney. “We are treading First Amendment land here.”
Chelsea Green’s argument rests primarily on Bantam Books v. Sullivana 1963 Supreme Court case in which a Rhode Island state commission threatened booksellers who sold books deemed “objectionable” by the state.
The Supreme Court has ruled that Rhode Island restricts legal speech through the threat of litigation in a form of censorship known as “prior restriction.” Warren’s actions, according to the plaintiffs, constitute a prior restraint.
Rubenfeld also took issue with Warren calling Chelsea Green’s book “misinformation”.
“I wasn’t going to get into that,” he said, but “Senator Warren is not presenting a single false statement of fact from the book.”
Ben Stafford, an attorney for Warren, pointed out that unlike Bantam v. Sullivan, the senator did not charge Chelsea Green or Mercola with any crime or threaten Amazon with legal action.
Instead, Warren asked Amazon for more information about its promotion of “The Truth About Covid-19,” as well as its policies regarding Covid-19 misinformation.
“Government officials also have the right to speak,” Stafford said. “They have the right to criticize, the right to cajole.”
Stafford also pointed to a similar lawsuit against U.S. Representative Adam Schiff, D-California, brought by the conservative American Association of Physicians and Surgeons after Schiff wrote a letter to Amazon expressing dismay at his promotion of misinformation about vaccines in 2019.
That lawsuit was dismissed, Stafford said, and he asked Judge Barbara Rothstein to do the same in Warren’s case.
While Warren’s defense team asked for the case to be dismissed, the plaintiffs asked Warren to publicly retract his letter.
The judge declined to make a decision on the bench and said both sides would hear from him “soon”.
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