Government

COVID Truther Alex Berenson Files LOLsuit Against Twitter For Tortious Deplatforming

Hey, California! 'The Pandemic's Wrongest Man' is comin' at ya!

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Vector Emoji yellow smiley crazy faceBack in April, Atlantic writer Derek Thompson branded Alex Berenson “The Pandemic’s Wrongest Man” in an article that quickly went, uh, viral. Berenson, a former reporter, had launched a new career as a lay epidemiologist, promoting spectacularly wrong theories about coronavirus and becoming a Fox news regular along the way.

On August 28, Twitter permanently banned him, at which point he made a beeline for Tucker Carlson’s nightly shriek show where he promised to file a defamation suit against the tech company for slapping a warning label on his tweets. In any event, Berenson did not sue Twitter for defamation. But he did sue them for literally everything else, filing a funhouse mirror issue-spotter of a complaint in the Northern District of California.

Berenson begins, like former president Trump, by arguing that Twitter violated his First Amendment rights. Sure, the First Amendment only protects against government censorship, but what if Twitter is actually the government?

No, no, hear him out! See, the Biden administration said Facebook and Twitter were killing people by allowing their platforms to be used to spread lies about hydroxy horse paste being better than vaccines, and thus Twitter was acting as a government agent when it gave Berenson the boot.

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.

And not only that, but Berenson goes so far as to assert a Bivens claim against Twitter for abridging his First Amendment rights. The family of a kid who gets shot by a border patrol agent can’t recover from the IRL government, but this jackass thinks he’s getting damages from President @Jack.

Sure, Section 230 of the Communications Decency Act expressly allows platforms to moderate content, and multiple courts have affirmed that Twitter can boot anyone it likes, but, uh, California passed this law in 1872, and so …

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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.”

He then goes on to cite Justice Thomas’s concurrence in Biden v. Knight First Amend. Inst. at Columbia Univ. in support of his theory, despite the fact that Thomas encourages legislatures to treat social media platforms as common carriers, while expressly admitting that they do not.

And while we’re on the subject of batshit First Amendment claims:

Twitter deprived Mr. Berenson of the right to speak on its platform. At the same time, Twitter deprived Mr. Berenson of the right to petition the federal government for a redress of grievances by tweeting to and interacting with accounts run and managed by the federal government, including @POTUS.

So far, so crazy.

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But what if Twitter is promissorily estopped from deleting Berenson’s account because some Twitter exec said, “I don’t expect that you will see major change in how we are addressing things going forward, but if you do, please feel free to reach out to me,” and said he’d aim to give Berenson a “heads up” if the company was planning to change its policies in ways that might impact his account?

And what if Berenson assumed he would be able to barf out nonsense forever and spent hours a day on Twitter “at the opportunity cost of investing his time in building a presence on Telegram and Substack, two alternative platforms to Twitter available to him at the time, or writing books and articles for publication elsewhere?”

And what if Twitter unjustly enriched itself by selling ad space to run alongside Berenson’s word vomit?

And what if Twitter engaged in unfair competition because it “competes against Mr. Berenson for an audience regarding COVID19. Twitter also profits from use of its platform by other media outlets, to include outlets and journalists that compete against Mr. Berenson?”

And what if three actual lawyers put their names on a complaint alleging that Twitter violated Berenson’s First Amendment rights, California’s constitution and common carrier law; engaged in false advertising and unfair competition; breached its contract with Berenson, unjustly enriched itself, and is thus promissorily estopped from taking away his God given right as a US citizen to Tweet?

That would be crazy right? And yet, here we are.

Berenson v. Twitter [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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