In early September 2021, U.S. Sen. Elizabeth Warren sent a letter to Andy Jassy, chief executive officer of Amazon.com, demanding an “immediate review” of Amazon’s algorithms to weed out books peddling “COVID misinformation,” stressing that Amazon’s sale of such books was “potentially unlawful”
Warren specifically singled out my book, “The Truth About COVID-19,” co-written with Ronnie Cummins, founder and director of the Organic Consumers Association (OCA), as a prime example of “highly-ranked and favorably-tagged books based on falsehoods about COVID-19 vaccines and cures” that she wants banned
As a government official, it is illegal for Warren to violate the U.S. Constitution, and pressuring private businesses to do it for her is not a legal workaround
Cummins and I, along with our publisher, Chelsea Green Publishing, and Robert F. Kennedy Jr., who wrote our foreword, are now suing Warren, both in her official and personal capacities, for violating our First Amendment rights and scaring book sellers into pulling and/or suppressing sales of our book
Ironically, Warren’s claims of misinformation are themselves misinformation that puts lives at risk
In early September 2021, U.S. Sen. Elizabeth Warren sent a letter1 to Andy Jassy, chief executive officer of Amazon.com, demanding an “immediate review” of Amazon’s algorithms to weed out books peddling “COVID misinformation,” stressing that Amazon’s sale of such books was “potentially unlawful.”2,3,4
Warren specifically singled out my book, “The Truth About COVID-19,” co-written with Ronnie Cummins, founder and director of the Organic Consumers Association (OCA), as a prime example of “highly-ranked and favorably-tagged books based on falsehoods about COVID-19 vaccines and cures” that she wanted banned.
“Dr. Mercola has been described as ‘the most influential spreader of coronavirus misinformation online,” Warren wrote,5 adding: “Not only was this book the top result when searching either ‘COVID-19’ or ‘vaccine’ in the categories of ‘All Departments’ and ‘Books’; it was tagged as a ‘Best Seller’ by Amazon and the ‘#1 Best Seller’ in the ‘Political Freedom’ category.
The book perpetuates dangerous conspiracies about COVID-19 and false and misleading information about vaccines. It asserts that vitamin C, vitamin D and quercetin … can prevent COVID-19 infection … And the book contends that vaccines cannot be trusted …”
Warren Fancies Herself Above the Law
Warren should know that as a government official, it is illegal for her violate the U.S. Constitution, and pressuring private businesses to do it for her is not a legal workaround.
Since she willfully ignores the law, Cummins and I, along with our publisher, Chelsea Green Publishing, and Robert F. Kennedy Jr., who wrote our foreword, are suing Warren, both in her official and personal capacities, for violating our First Amendment rights. The federal lawsuit, in which Warren is listed as the sole defendant, was filed in the state of Washington. As noted in our complaint:
“Once upon a time, the First Amendment was understood to guarantee that books challenging governmental orthodoxy could be sold without fear of governmental intimidation or reprisal.
Almost sixty years ago, in Bantam Books v. Sullivan, 372 U.S. 58 (1963), the Supreme Court held that state officials violated the First Amendment by sending letters to booksellers warning that the sale of certain named books was potentially unlawful.
The ‘vice’ in such letters and in the ‘veiled threat’ of legal repercussions they communicated, explained the Court, is that they allow government to achieve censorship while doing an end-run around the judiciary, ‘provid[ing] no safeguards whatever against the suppression of … constitutionally protected’ speech, thus effecting an unconstitutional ‘prior restraint.’
It made no difference that the officials who sent the letter lacked the ‘power to apply formal legal sanctions’ — i.e., that the officials did not themselves have the power to sanction or prosecute the booksellers in any way. Indeed this fact made the unconstitutionality more apparent.
The officials ‘are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice … [T]hey acted … not to advise but to suppress.’
It also made no difference, the Court expressly found, that the letters were framed as mere ‘exhort[ation]’ or that the booksellers were in theory ‘free’ to ignore the letters, because the officials had ‘deliberately set about to achieve the suppression of publications deemed ‘objectionable’,’ and ‘people do not lightly disregard public officers’ veiled threats.’
Today, certain members of the United States Congress have apparently forgotten, or think they are above, the law set forth in Bantam Books.”
Warren’s Attack on Constitutionally Protected Speech
There’s no doubt our book, “The Truth About COVID-19,” is constitutionally protected speech, and that Warren’s letter is calling on Amazon to suppress protected speech.
In our book, we share viewpoints, ideas, opinions, verifiable facts and factual hypotheses that our federal government just so happens to disfavor, as it counters their chosen narrative that SARS-CoV-2 emerged naturally, cannot be prevented by any means other than experimental gene therapy, and cannot be treated by any other means than certain experimental and exorbitantly costly drugs.
Since the start of the pandemic, government has systematically sought to suppress the kind of information shared in our book, using the same tactic as Warren used against us here — warning Internet-based companies that if they don’t censor these views, the full weight of the government’s wrath will be turned against them. As explained in our complaint:
“The term ‘vaccine misinformation’ as Warren uses it is propagandistic and false. As she uses it, ‘vaccine misinformation’ refers to any speech challenging the safety and efficacy of the COVID vaccines, even when that speech consists of factually accurate information or protected opinion …
On September 10, 2021, as a direct result of Warren’s letter, a major national bookseller chain, Barnes and Noble, notified the publisher of The Truth About COVID-19 by email that it would no longer sell the work as an e-book. Barnes and Noble has — for now — reversed that decision.
It is impossible for Plaintiffs to know with certainty whether, as a result of Warren’s letter, Amazon is now covertly demoting, downgrading, or otherwise suppressing The Truth About COVID-19 in numerous ways that would be hidden from view, but Plaintiffs believe that Amazon is in fact covertly taking such action.
Even if no bookseller in the country had yielded to Warren’s threats, her letter would still be actionable as a clear violation of the First Amendment.
In Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (Posner, J.), relying on Bantam Books, the Court held that a governmental official ‘violates a plaintiff’s First Amendment rights’ if by ‘threat’ or ‘intimidation’ the official attempts to induce ‘a third party’ to stop ‘publishing or otherwise disseminating the plaintiff’s message,’ and emphasized that ‘such a threat is actionable and thus can be enjoined even if it turns out to be empty — the victim ignores it, and the threatener folds his tent.’
Such threats go ‘by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.’ Accordingly, Plaintiffs ask this Court to vindicate clearly established law, to vindicate Plaintiffs’ constitutional rights, to vindicate the First Amendment itself, by declaring Warren’s conduct unconstitutional and by enjoining her from repeating such conduct in future.”
Warren Calls Out ‘Misinformation’ With Misinformation
In our complaint, we also emphasize the fact that Warren’s claims of misinformation are themselves misinformation. For example, Warren claims our book falsely “asserts that … vitamin D … can prevent COVID-19 infection.” According to Warren, this claim has no scientific basis. This is clearly and verifiably false as there are many studies, published in 2020 and 2021, supporting this claim.
A recent systematic review of the literature concluded that ‘blood vitamin D status can determine the risk of being infected with COVID-19, seriousness of COVID-19, and mortality from COVID-19. Therefore, maintaining appropriate levels of Vitamin D through supplementation or natural methods … is recommended for the public to be able to cope with the pandemic.’
For example, in May 2021, the National Institutes of Health’s website, PubMed.gov, published a Journal of Medical Virology article titled “Vitamin D Deficiency Is Associated With COVID-19 Positivity and Severity of the Disease.”6 Many other scientific articles have also linked vitamin D deficiency with a higher risk of COVID infection, more severe outcomes and increased rates of death.
Indeed, a recent systematic review7 of the literature, posted on the U.S. National Library of Medicine, which is another National Institutes of Health website, concluded that “blood vitamin D status can determine the risk of being infected with COVID-19, seriousness of COVID-19, and mortality from COVID-19.
Therefore, maintaining appropriate levels of Vitamin D through supplementation or natural methods … is recommended for the public to be able to cope with the pandemic.” As noted in our complaint:
“Thus while Warren professes to champion true COVID information to save lives, she is purveying false information that could lead to COVID deaths. Warren is telling people that vitamin D levels don’t matter for COVID, when in fact — as readers would learn from The Truth About COVID-19 — correcting vitamin D deficiencies could save their lives.
By her own logic and according to her own demands, every major social media platform should have banned Warren’s letter as ‘COVID misinformation.’ But officials like Warren only denounce ‘COVID misinformation,’ demand its censorship, and threaten legal repercussions when the statements in question challenge the COVID narrative they support — not when they themselves are misrepresenting the truth about COVID-19.
Warren’s letter further accuses The Truth About COVID-19 of disseminating ‘false and misleading information about vaccines,’ including by (in Warren’s words) ‘contend[ing] that vaccines cannot be trusted.’
The book’s stated thesis about the COVID vaccines is that their effectiveness ‘has been wildly exaggerated and major safety questions have gone unanswered.’ This statement is accurate and well within the bounds of constitutionally protected opinion …
Warren’s letter further cites a June, 2021, review of The Truth About COVID-19 that purports to list examples of the book’s ‘misinformation,’ the first of which is the following: ‘the authors argue that the SARS-CoV-2 coronavirus was engineered in a laboratory in Wuhan, China.’ It is true that The Truth About COVID-19 argues that that ‘the preponderance of evidence’ supports the lab-leak theory of the origins of the COVID virus.
But the claim that this position is ‘misinformation’ is, once again, itself misinformation. The lab-leak theory — long denounced as a ‘conspiracy theory’ by federal actors and suppressed on social media — is in fact supported by substantial and growing evidence. See, e.g., Wall St. Journal, ‘Science Closes In on Covid’s Origins: Four studies — including two from WHO — provide powerful evidence favoring the lab-leak theory,’ Oct. 5, 2021.8
The review’s next example of the supposed ‘misinformation’ in the The Truth About COVID-19 is this: the book ‘insists multiple times that the public health measures and restrictions will be permanent. Not true.
The CDC announced that fully vaccinated Americans could resume activities without wearing masks or physically distancing, resume domestic travel, and refrain from quarantine even when following a known exposure to the virus if they remain symptom-free.’
This CDC announcement obviously proved to be false, while the prediction made in The Truth About COVID-19 that health restrictions would continue after vaccination has proved more accurate.
Moreover, it is not the case that the Truth About COVID-19 ‘insists’ that these restrictions will be permanent — it says that certain restrictions on our liberty, beginning in the pandemic, will ‘probably’ be permanent, reflecting a humility about the certainty of one’s assertions that Warren might have profited from.”