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
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.DONATE
Donations tax deductible
to the full extent allowed by law.