Physician Threatens To Sue Twitter Over Suspension For Tweeting Scientific Article On COVID-19 Vaccine Lowering Sperm Counts (UPDATED)

Physician Threatens To Sue Twitter Over Suspension For Tweeting Scientific Article On COVID-19 Vaccine Lowering Sperm Counts (UPDATED)

Andrew Bostom, M.D., a Rhode Island physician and researcher, wrote at Legal Insurrection about his suspension from Twitter after he tweeted a link to a peer-reviewed article in a prestigious medical journal regarding an Israeli study on the Covid-19 vaccine lowering sperm counts.

[Full article available at https://onlinelibrary.wiley.com/doi/epdf/10.1111/andr.13209]

Until this morning, I had a very active Twitter account with a large following through which I shared scientific information, as well as my personal views….

This morning (6/22/22) I awakened to learn that overnight Twitter had summarily and simultaneously locked, and then suspended my account for this “offending” tweet from Father’s Day, 6/19/22:

As of this writing, my Twitter account is suspended. I have received no response so far to my appeal.

Bostom explained that his tweet was an accurate reflection of the Israeli study as described in the linked scientific article, so Twitter’s claim that he shared “false or misleading information” was itself false and misleading:

Again, quoting their publication, verbatim, based upon what the authors defined, a priori, as the primary statistical analysis (i.e., “ [a] 1) generalized estimated equation model (GEE) was used for repeated measures analysis,” which is indeed the most appropriate method!):

 “sperm concentration was significantly lower due to decrease of -15.4% (confidence interval -25.5%–3.9%) compared to [Time zero/baseline] T0 (p=0.01). Moreover, [total motile count; how sperm moved] TMC percentage change reduction of 22.1% was significantly lower compared to T0 (confidence interval -35% – -6.6%, p=0.007) as well. Although concentration and TMC were reduced also on T3, these values did not reach statistical significance.”

If anything the text of my 6/19/22 tweet understated the evidence of a possible longer term, ~ 5-month follow-up decline, calling it a “rebound” when “concentration and TMC were reduced also on T3, [though] these values did not reach statistical significance.” In other words, the trend was toward a persistent decline, although it did not “reach statistical significance,” but may well have been evident, and “statistically significant,” merely by studying more subjects.

Finally, my offending tweet added the truthful observation that no data were presented on the effects of booster vaccinations, and asked whether boostering might cause another cycle of decline in the sperm counts and functional measures only studied in relation to the initial vaccination.

My suspension is yet another example of Twitter’s arbitrary, Lysenkoist breaches of informed public discourse on covid-19. The suspension must be reversed, and my account restored fully intact, immediately.

Bostom remains suspended as of this writing:

Bostom’s case is reminiscent of Twitter’s suspension of Alex Berenson, someone who questioned the prevailing dogma about Covid-19 lockdowns and politicized scientific claims. Berenson sued, survived Twitter’s attempts to get the case thrown out, and ultimately Twitter settled before Berenson got a chance to perform a legal colonoscopy on Twitter’s internal suspension functions. While most of the details of the settlement are not known, Berenson was reinstated to Twitter.

Berenson has taken up Bostom’s cause, spreading the word and also tweeting the same article and daring Twitter to suspend Berenson over it.

2/ Hey, I’ve got an idea! Imma tweet it myself and see what happens to meeeee…

— Alex Berenson (@AlexBerenson) July 13, 2022

Oops I tweeted it again.

Wait, if it doesn’t get flagged when I tweet, how come it’s a strike for someone else? This is sooooo confusing. https://t.co/A8BAcPb4qm

— Alex Berenson (@AlexBerenson) July 14, 2022

Bostom has retained the lawyer Berenson used to sue Twitter, James R. Lawrence III, who has sent Twitter a demand letter (pdf.) seeking Bostom’s restoration to Twitter and threatening suit if that doesn’t happen. The letter asserts that Twitter is violating the terms of use it contractually agreed to:

We represent Andrew G. Bostom, M.D., M.S. We write to demand that Twitter, Inc. immediately reinstate Dr. Bostom’s account, @andrewbostom, which your company suspended on June 22, 2022 in violation of its own COVID-19 misinformation policy….

Dr. Bostom did not violate Twitter’s policy. At a minimum, nothing in our client’s tweet was “demonstrably false or misleading,” nor was it “likely to impact public safety or cause serious harm.” Again, Dr. Bostom tweeted findings from a peer-reviewed study, and he summarized its content within the 280 character limit Twitter’s platform allows. Dr. Bostom’s questions about further research regarding the study are not only responsive to the authors themselves, but are also expressly protected by Twitter’s own policy, which embraces “public debate . . . about the advance of COVID-19 science and research.” Our client did not violate Twitter’s stated five-strikes rule.

What is more, Twitter suspended our client for nearly a month, and apparently permanently, without following its own progressive discipline policy. Again, Twitter failed to follow its own rules. Further, Dr. Bostom’s tweets do not come close to satisfying the standard for an immediate suspension. Nothing Dr. Bostom tweeted provides a basis for Twitter to maintain that he “repeatedly violate[d] the COVID-19 misinformation policy over a 30-day time period.” Even if it wanted to, Twitter cannot retrofit what our client said into Twitter’s narrow immediate suspension framework.

By violating its own COVID-19 misinformation policy, Twitter breached its contract with Dr. Bostom, blocking access to his following and causing damage in the process. It is no answer to Dr. Bostom’s concerns that Twitter’s Terms of Service provide that your company can terminate accounts “for any or no reason.” The court in Berenson v. Twitter, Inc., 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022), rejected that argument, holding that the plaintiff in that case had, among other things, “plausibly aver[ed] that Twitter’s conduct here modified its contract with plaintiff and then breached that contract by failing its own five-strike policy.” Id. at *2. That is what happened here. To be sure, Berenson also involved direct assurances from a Twitter executive regarding the company’s purported commitment to debate and speech around COVID19, but the breach of contract issue remains. Moreover, section 230 of the Communications Decency Act provides no refuge for Twitter here, since under a breach of contract theory, Dr. Bostom “does not seek to hold Twitter liable as a publisher or speaker of third-party content, but rather as the counter-party to a contract, as a promisor who has breached.” Id. (internal quotation marks omitted).

Dr. Bostom is interested in pursuing his scientific and research interests, and in engaging in the very public conversation your company says it wants regarding COVID-19. He asks that Twitter immediately reinstate his account with zero strikes, its entire pre-suspension history, and following. We ask for the account to be reinstated by 5 PM PT on July 21, 2022.

While our client trusts that litigation will be unnecessary in this case, he is prepared to sue Twitter if necessary. If your company forces Dr. Bostom into that situation, he will seek to invalidate Twitter’s one-sided waiver of consequential damages and the company’s $100 cap on liability under Cal. Civ. Code § 2175. We trust that our client will not have to resort to the courts, and that Twitter will reinstate his account as requested.

Twitter has not responded to my request for comment, as of this writing.

(UPDATE 11 pm)

His account is now restored.

Donations tax deductible
to the full extent allowed by law.