Alex Berenson Sues Twitter For Purging Him From The Platform
Complaint: “the company broke its promises, its stated policies, and our laws, including a nearly 150-year-old California law that explicitly sets out its obligations as a company in the business of carrying messages”
Alex Berenson is a former NY Times reporter who went rogue on the lockdowns and mandates and supposed science behind the government reaction to the cornonavirus pandemic. He’s the author of Pandemia: How Coronavirus Hysteria Took Over Our Government, Rights, and Lives
Berenson has been a frequent guest on Tucker Carlson Tonight, but good luck finding those videos on YouTube – I tried and could only find videos of people bashing Berenson. Google searches get pretty much the same result – bashing Berenson.
Berenson has a substack, to which I subscribed after he was deplatformed from Twitter over his coronavirus positions… because I wanted to be able to keep hearing his viewpoint.
That ban from Twitter has given rise to a lawsuit filed on December 20, 2021, against Twitter.
You can read the Complaint.
The Complaint reads more like an argumentative Brief, because Berenson’s lawyers recognize he has some serious legal hurdles to get over. So much of the Complaint is preemptively addressing arguments Twitter certainly will assert in a motion to dismiss. Most interesting to me, is the attempt to invoke an old California statute on the obligations of “common carriers” — I don’t know if it’s a sound legal argument, but it’s interesting. The other interesting aspect is that Berenson attempts to hold Twitter to promises he alleges they made to him — both through their policies and in specific communications to him — and on which he relied to his detriment.
Right in the caption is the list of causes of action asserted:
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
1. VIOLATION OF THE FIRST AMENDMENT
2. FEDERAL FALSE ADVERTISING AND UNFAIR COMPETITION
3. VIOLATION OF CALIFORNIA COMMON CARRIER LAW
4. VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW
5. BREACH OF CONTRACT
6. PROMISSORY ESTOPPEL
7. VIOLATION OF THE
CALIFORNIA CONSTITUTION
8. UNJUST ENRICHMENT
The “Introduction” to the Complaint is almost 6 pages, here are selected excerpts to give you a flavor:
1. Twitter is the world’s preeminent global messenger service and foremost platform for journalism…. Unfortunately, despite Twitter’s supposed commitment to freedom of speech, in the case of independent journalist Alex Berenson, the company broke its promises, its stated policies, and our laws, including a nearly 150-year-old California law that explicitly sets out its obligations as a company in the business of carrying messages.
2. During 2020 and 2021, Mr. Berenson became a prominent critic of the governmental and public health response to the COVID-19 pandemic. Mr. Berenson made many statements on Twitter which, although controversial at the time, have since become conventional wisdom, most notably about the profound harm to children caused by remote learning and unnecessary school closures.
3. Mr. Berenson’s audience on Twitter soared as the pandemic continued, and in August 2021 his tweets were viewed approximately 182 million times. Despite the controversy around his statements, a senior Twitter executive repeatedly assured Mr. Berenson that the company backed his right to free expression and that he would continue to enjoy access to the platform. Even after he started critically covering the COVID-19 vaccines, in December 2020 the executive assured Mr. Berenson that his reporting “should not be an issue at all.” In March 2021, the same executive told Mr. Berenson that “your name has never come up in the discussions around these policies [(i.e., potential censorship of Twitter users who criticized the vaccines and other COVID-19 policies)].”
4. Relying on these assurances, and aware of Twitter’s unique size and importance as a medium for journalism, Mr. Berenson did not seriously attempt to build alternate venues for his reporting before late May 2021….
5. Mr. Berenson’s relationship with Twitter changed dramatically over the course of one week in July 2021. On Sunday, July 11, Dr. Anthony Fauci, President Joe Biden’s Chief Medical Advisor, called Mr. Berenson’s comments about COVID-19 vaccine hesitancy “horrifying.” By Friday, President Biden himself piled on, blaming social media companies for “killing people” on account of their failure to adequately censor content. Hours after President Biden’s comment, Twitter locked Mr. Berenson out of his account for the first time.
6. On August 28, in the wake of even more calls for censorship from government officials, Twitter permanently suspended Mr. Berenson from its platform, citing “repeated violations of our COVID-19 misinformation rules.” Mr. Berenson did not violate those rules. Twitter, on the other hand, broke its promises to Mr. Berenson as well as its policies, and violated his rights as it served the federal government’s censorship demands.
7. Twitter and other social media companies have repeatedly fended off lawsuits like this one using section 230 of the Communications Decency Act of 1996 or CDA….
8. This lawsuit is not a rerun of these long-running disputes. For one thing, different laws are at issue, among them a California law that predates the CDA by 124 years and which limits Twitter’s right to discriminate against the speech it carries. Enacted in 1872, the law defines any company that “offers to the public to carry persons, property, or messages” as a “common carrier.” As the law then explains, “a common carrier must, if able to do so, accept and carry whatever is offered to him.”
9. Courts have repeatedly applied the 1872 law to telephone companies and other technologies that did not exist at the time it was enacted. Carrying messages for the public is, of course, the very core of Twitter’s business.
10. Section 230, which preempts certain state and local laws, does not shield Twitter from the reach of California’s common carrier statute or the California Constitution. Twitter’s potential reliance upon section 230 as a defense against Mr. Berenson’s claims asserting California speech-protection laws raises federal First Amendment issues that federal courts must adjudicate….
12. Mr. Berenson also has a uniquely viable claim that Twitter acted on behalf of the federal government in censoring and barring him from to its platform. While courts have generally refused such “state actor” complaints against social media companies, the extraordinarily close nexus between the July 2021 statements by senior executive branch officials—including President Biden himself—calling for censorship by such companies and Twitter’s corresponding immediate actions against Mr. Berenson mean that this issue merits closer scrutiny.
13. Finally, courts have repeatedly held that even section 230 cannot and does not protect Twitter from Mr. Berenson’s breach of contract and promissory estoppel claims, which again do not depend merely on Twitter’s overall terms of service or broad promises about freedom of speech but on specific, repeated representations the company made to Mr. Berenson through a senior Twitter executive over a nearly one-year-period. Nor does section 230 bar Mr. Berenson’s Lanham Act and California Unfair Competition Law claims premised on Twitter’s false and misleading representations concerning his reporting on the platform.
It’s an uphill fight.
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Comments
Good luck Mr. Berenson.
I wish him luck; but Section 230 will squash him flat, no matter what he claims.
It is time to get rid of it.
230 only provides some protection for platform operators for content created by users. IOW, if I were to say something defamatory against you in this post, Legal Insurrection would be largely immune from civil action based on my defamatory statements. As I understand it, it doesn’t do much, if anything, to inoculate their own potentially actionable behavior.
Handling of Section 230 needs to be more nuanced than just getting rid of it. Perhaps a better approach is to breakup these large companies.
Carrying messages for the public is, of course, the very core of Twitter’s business.
No, Twitter is a microblogging platform no different from Legal Insurrection; the only difference is the maximum size of a post. So that one’s dead in the water.
It is time to get rid of it.
Let’s hear your proposed replacement that will ensure that the 1995 Stratton-Oakmont, Inc. v. Prodigy Services Co. decision won’t instantly shut down every web site that allows comments.
Become a Common Carrier.
Get rid of your mods. If it’s legal in the first Amendment; it’s legal here. Make sure to give people vigorous ignore/block ability.
I am fully aware this will create a wild west atmosphere. I do not care.
To wit, this is the same response Twitch and YouTube should have with the RIAA. “Go get a court order. For each time you think your copyright is violated. This is between you and the user. We are not involved. The RIAA recently imposed a copyright strike on Jonathon Young for… violating Jonathon Young’s copyright.
This comes with an I am Not Mistaking This Up disclaimer:
https://www.youtube.com/watch?v=CTrOmjadYGk)
Unfortunately, the comments are controlled by one piece of federal legislation while copyrighted works are regulated by several other pieces of federal legislation to particularly include the DMCA. WAY back in YouTube’s early years, they faced an onslaught of litigation from music rights holders using DMCA. How they now handle copyrighted music (and other) claims is a direct result of settling with those music rights holders. It really has nothing to do with Section 230.
I am fully aware this will create a wild west atmosphere. I do not care.
No, it won’t. It’ll completely kill comments on any and every web site. What you don’t see is the truly massive amounts of porn, Spanish Prisoner scams and ads that inundate every web site’s public comments. It is only the liability shield that allows site operators to nuke these before you see them. Take that liability shield away and you will never see a legitimate comment again for all the spam. Assuming the operators don’t simply disable comments altogether because their host can’t handle the load of a million Indian, Russian and African bot farms all posting spam to their site simultaneously.
I realize neo-Luddite soi-disant conservatives who logged on to the Internet for the first time last Tuesday think they have all the answers, but a lot of technical and legal experts have been wargaming these scenarios for multiple decades. There are no simple answers.
Exactly. Twitter has never held itself out to the public as a company that will unconditionally carry whatever people want to send; it has always reserved the right to refuse any message it doesn’t like. I don’t think the CA law overrides that reservation.
But if it’s true that Twitter made specific promises directly to this person, on which he relied to his detriment, that starts to look like a serious case. Had Prof J made such promises to someone, specifically giving him free license to post on LI, and then suddenly reneged on them without any explanation, I would think that would be actionable; so why wouldn’t the same apply to Twitter? And if he’d done so directly at the White House’s behest, the first amendment would be implicated.
But that should make it a *Publisher* and thus subject to *a lawsuit*. It is exercising editorial control. And that’s where S230 protections need to *go away*.
I did an extremely shallow dive into the text of 230 some months back (and didn’t read any of the authorities flowing from i.e. case law
Isn’t there words to the effect of ‘acting in good faith?’
the majority of big tech has acted as publishers and not platforms.
Yes, they must act in good faith, but like any distributor they are entitled to censor any content they find objectionable. Bookstores routinely drop books the owner thinks objectionable. This doesn’t make them publishers and doesn’t make them liable for content they don’t drop, and don’t know to be illegal.
No, Twitter and Legal Insurrection are not publishers, because they do not choose what goes up on their platforms. That is the essential feature of a publisher, and it is the reason why publishers are liable for everything that they publish. Nothing goes in a newspaper or a book without the publisher consciously choosing to put it there.
What they are is distributors. They never even glance at the vast majority of the content they carry, and have no idea what’s in it, and therefore cannot possibly be responsible for it. But they do reserve the right to refuse to carry content they happen to have seen and decided is objectionable. The classic distributor is a book store. Twitter and Legal Insurrection both act exactly like a book store, carrying most content sight unseen, but dropping that small portion of content that they have read and don’t like. And the legal status of bookstores is firmly established; they are protected by the first amendment, and it is unconstitutional to hold them liable for carrying illegal content that they were unaware of. Tell me how you think Twitter or LI are different.
But if it’s true that Twitter made specific promises directly to this person, on which he relied to his detriment, that starts to look like a serious case.
This is now getting into EULA and Terms of Service law; Berenson has no idea the giant he’s awakened. Most EULAs are absolutely ridiculous in the powers they grant the licensor; for instance, Microsoft can call you up at any time for any or no reason and say “we’re revoking your license to any and all Microsoft software. You have to stop using it, all of it, right now”. This has never been tested in court; they only times they’ve ever used this power is in conjunction with massive software piracy criminal suits where it’s so trivial compared to the billions of dollars on the table it doesn’t matter.
Every tech company has a vested interest in ensuring that EULA/Terms of Service contracts retain these ridiculous powers and the best way to ensure that is to keep these suits out of a courtroom. This is going to be very interesting.
Yeah, but if he was directly made specific promises, those would override the EULA, which is a general document aimed at the whole world.
In less than two years, the US Government has turned a significant number of American people into hypercondriac.
Is it fair to say a society that’s fanatically obsessed with a virus and disease is certainly not health? Testing yourself constantly for coronavirus when you have no symptoms is a form of mental illness.
Berenson is a true charlatan. He has been demonstrably wrong so many times in regards tp covid , and even when his errors are pointed out to him, he insists that he’s right, He has no training in biostatistics and repeatedly cherry picks whatever stat he thinks may bolster his argument,, but in every case garbles the data so badly that he actually sabotages his own claim. Good riddance to him as he will inevitably fade into obscurity.
First they came for…
You do realize that the very tweet Twitter banned Berenson over has now been proven FACTUAL ACCURATE right? His last tweet included this sentence (speaking about the vaccines): ‘”…with a limited window of efficacy and terrible side effect profile.”
Today, for people to be considered ‘fully vaccinated,’ you must have had THREE shots and Fauci himself has opened the possibility that ‘boosters’ could become necessary with every passing year, potentially multiple boosters every year. Also, even the CDC now admits in their literature that the vaccines have the potential for serious adverse side-effects.
Ugene is off his meds again
I don’t even know who this guy is. Perhaps you can enlighten us with some actual examples of what he got wrong and why you think he got it wrong.
This is suppression of free speech at its worst Fauci should not be suppressing any dissenting views
Fauci should be fired and indicted for perjury. It is important to remember that Fauci spent millions of taxpayers dollars on a nonexistent cause for AIDS other than HIV contracted thru deviant sex and sharing of intravenous hypodermic needles and, contrary to his sworn testimony in Congress, approved the grants to the Wuhan lab that led to the development and release of the pandemic. Fauci, Bix and Redfield were all highly skeptical of the efficacy of vaccines as having any benefit and could only and still only think of a worst case scenario reaction to the pandemic that ruined the economy , caused adverse mental health reactions, and set back the educational performance of children. The same CDC thought that it had the power to eviscerate property rights and to engage in virtue signaling by calling “systemic racism” a public health hazard. Fauci should go, and the performance of CD throughout the pandemic from its onset warrants Congressional inquiry .
^ 1 million up votes.
This argument over Twitter rights as a private company, ( publisher VS platform?), continues to befuddle legal minds. Most of the laws re: liability were written with mainly newspaper and TV in mind once upon a time, but here we are with the likes of social media, which to my mind, is a wholly different creature. It’s sort of an Everyman gathering place where both the sage and the fool get to argue their points, the wicked and the good get to espouse their philosophies.
Twitter is, #1, a private company, and this, should have the right to whatever the heck it wants in curating comments.
The only remedy to that that I can see is for the aggrieved to go somewhere else, if they are “cancelled”.
The my understanding the only way to stop a company from providing a “faulty product”, ( barring it causes physical injury or death) is the law of attrition: people will just stop using the product & shop somewhere else.
here we are with the likes of social media, which to my mind, is a wholly different creature.
It’s not different from Usenet or the various dialup BBSes or Prodigy’s online information service, which is where S.230 of the CDA came from.
The Internet is not just four web sites.
Uphill battle it may be, but I suspect the reason for the lawsuit is not so much an expectation of winning but rather it’s publicity value and for him to be perceived as fighting the good fight. I never look at Facebook or Twitter. This lawsuit is the first I have ever heard of this guy.
Twitter and Facebook both have some interesting “community standards.” Twitter tolerated a page called TruthAboutJews (which also used a racial slur for Black people) for a long time until the issue went public on the Internet. Facebook hosted similarly a page called Jewish Ritual Murder and told people it did not violate community standards, until widespread online outcry finally got it removed. There were, when I last checked, pages on FB that, among other things, promote 9/11 conspiracy theories including claims that “the Zionists” did it. This includes a picture of Netanyahu pointing to the Twin Towers and saying “Mossad put the explosives here.” Another says the CIA and Mossad did it. This does not apparently violate what Facebook calls its community standards.
You can, by the way, use AdBlock Plus to keep clutter off your Twitter feed, and FB Purity to keep clutter out of your feed. I believe you can set the latter to allow the non-invasive Marketplace ads that show up on the side of the page, which is my own preference.
Yes, their standards are perverse, but the point is they have the right to decide those standards, and to be as arbitrary as they like, so long as they have no contractual obligation to carry anyone’s content. This Berenson person seems to have a good case because he claims to have been made specific promises, on which he relied, and were then broken. Most people have never received any such promises, and are therefore at the tender mercies of these awful companies. The answer is to stop doing business with them.
he claims to have been made specific promises, on which he relied, and were then broken.
Steven Crowder has successfully sued Facebook multiple times because he paid for ad placement and they subsequently suppressed his ads. I wonder if Berenson is alleging something similar.
It is apparent that any writer who dissents from the left can find refuge at Substack. The more interesting argument would be whether a dissident writer being limited to Substack and its rules of either free or paid for articles prevents your message from being disseminated to as broad a readership as possible when Big Tech allows overtly anti Semitic ,terrorist supporting, and other patently objectionable links is legally permissible
Of course it’s legally permissible. These are their platforms, they are entitled to use them however they like, and to make completely arbitrary and offensive rules for them. The answer is to stop doing business with them. Delete your account, don’t look at their site, certainly don’t advertise with them.