Spencer Osborne

Alex Berenson is an author and journalist. As its title suggests, criticism abounds for his newest book, Pandemia: How Coronavirus Hysteria Took Over Our Government, Rights, and Lives.^[1] To others, Berenson is a hero—a “free speech” martyr in the putative war against “big tech.”

On Twitter, Berenson questioned the ability of mRNA vaccines to stop the virus’ transmission or infection, promulgated the Wuhan “lab leak” theory, and communicated his distrust of mortality data. Some of those views might be considered more defensible now than they once were. Nevertheless, his widely shared tweets came at a time when the federal government and social media platforms were hypervigilant in their attempts to quell “misinformation.”^[2]

In March 2021, Twitter announced its five-strike “COVID-19 misleading information policy.” Shortly thereafter, Twitter’s VP of Global Communications gave Berenson assurances that the company: (1) had no plans to restrict his account; and (2) would notify him if that were to change. On August 28, 2021, however, Twitter permanently suspended Berenson’s account without notice. Now, Berenson is back on the platform as perhaps the first person to ever return from one of Twitter’s famously “permanent” bans.^[3]

Berenson sued Twitter in federal court.^[4] His claims included violation of the First Amendment, breach of contract, and promissory estoppel.^[5] The litigation ultimately settled.^[6] Some conservative news outlets view this result, and Berenson’s digital resurrection, as a rebuke of tech censorship.^[7]Berenson appeared on a popular podcast to tout his alleged victory^[8], and wrote a piece for The Wall Street Journal claiming his case “could become a watershed in holding social-media companies accountable for censorship.” But a review of the court’s order suggests that Berenson’s celebration is misguided.^[9]

While his complaint was not dismissed outright, two legal barriers defeated Berenson’s censorship and speech-related claims.^[10] First, Section 230 of the Communications Decency Act of 1996 enables online providers to moderate objectionable user content “in good faith,” without fear of civil liability, even if that content is constitutionally protected. ^[11] Accordingly, “[w]ith the exception of the claims for breach of contract and promissory estoppel, all claims in [the] action [were] barred by 47 U.S.C. Section 230(c)(2)(A).”^[12] Berenson argued that the Twitter executive’s assurances established that Twitter failed to moderate in good faith, but the court did not find “sufficient factual underpinning” for that conclusion.^[13]

Second, the “state action” doctrine provides that—by and large—only government actors are capable of violating one’s constitutional rights. Thus, Berenson “fail[ed] to even state a First Amendment claim” even if Section 230 were not applicable.^[14] That is, “the shift in Twitter’s enforcement position” combined with “general cajoling from various federal officials” was insufficient to plausibly allege that the private company was a “willful participant in government action.”^[15]  

An earlier Ninth Circuit case, however, held that some claims could survive a 12(b)(6) motion despite Section 230 barring others.^[16] Because Berenson was seeking to hold Twitter liable not as a “publisher or speaker of third-party content, but rather as the counter-party to a contract,” Section 230 would not bar his claims sounding in contract.^[17] Twitter’s Terms of Service allow it to terminate user accounts “at any time for any or no reason.”^[18] However, “the course of performance may supplement or qualify the terms of such an express contract.^[19] Berenson’s theory was that the March 2021 policy, taken with Twitter’s assurances, represented Twitter’s modification and breach of its Terms of Service. Thus, the court allowed his contract and promissory estoppel claims to proceed. 

Although Berenson is back on Twitter, the proposition that Berenson beat Twitter on speech grounds is a dubious one. 

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^[1] Substack page, Alex Berenson, https://substack.com/profile/12729762-alex-berenson (last visited Sep. 3, 2022). 

^[2] See, e.g., Press Briefing by Press Secretary Jen Psaki, The White House (Jul. 16, 2021) https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021 (stating that the Biden Administration was “in regular touch with social media platforms” regarding “the number of people who are dying around the country because they’re getting misinformation”). 

^[3] See Alina Selyukh, What Does It Take To Get Permanently Banned From Twitter?, NPR (Jul. 20, 2016) https://www.npr.org/sections/alltechconsidered/2016/07/20/486738705/what-does-it-take-to-get-permanently-banned-from-twitter (discussing the permanent nature of these bans and identifying other public figures who have been subject to them). 

^[4] Complaint for Damages and Injunctive Relief at *1, Alex BERENSON, Plaintiff, v. TWITTER, INC., Defendant., 2021 WL 6058255 (N.D. Cal. Dec. 20, 2021).

^[5] Id.

^[6] Susannah Luthi, Twitter loses bid to toss Alex Berenson lawsuit, Politico (Apr. 30, 2022) https://www.politico.com/news/2022/04/30/twitter-loses-bid-to-toss-alex-berenson-lawsuit-00029131; see also Berenson v. Twitter, Inc., 3:21CV09818 (filed 7/11/2022) (NOTICE of Voluntary Dismissal (Joint) With Prejudice by Alex Berenson). 

^[7] See, e.g., Tom Fitton (@TomFitton), Twitter (Jul. 7, 2022, 11:16 AM), https://twitter.com/TomFitton (Tweeting that “[t]he restoration of @AlexBerenson ‘s account by @Twitter is a significant development in the fight to protect free speech online”). 

^[8] The Joe Rogan Experience, #1864 – Alex Berenson, Spotify, at 00:25 (Aug. 26, 2022) https://open.spotify.com/episode/5xCeuH6zui8r27ImExB6K6. 

^[9] Berenson v. Twitter, Inc., No. C 21-09818 WHA, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022). 

^[10] Id. at *2-3. 

^[11] 47 U.S.C. § 230(c)(2)(A). For more on Section 230, see generally Jeff Kosseff, The Twenty-Six Words That Created the Internet (Cornell University Press, 2019).

^[12] Berenson, 2022 WL 1289049 at *2. 

^[13] Id.

^[14] Id. at *3.

^[15] Id.

^[16] See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).

^[17] Berenson, 2022 WL 1289049 at *2 (quoting Barnes, 570 F.3d at 1107).

^[18] Twitter Terms of Service, https://twitter.com/en/tos (updated June 10, 2022).

^[19] Berenson, 2022 WL 1289049 at *2  (internal citation omitted).