• by Wendy Davis  @wendyndavis, April 7, 2022

Twitter is urging a federal judge to throw out a lawsuit by journalist and author Alex Berenson, who says the company violated his free-speech rights by throwing him off the platform over his posts about COVID-19 vaccines.

Berenson's complaint “seeks to force Twitter to publish content that violates its policies,” the company writes in papers filed Wednesday with U.S. District Court Judge William Alsup in San Francisco.

Twitter adds that the lawsuit has “numerous dispositive and incurable defects,” and should be dismissed with prejudice -- which would prevent Berenson from reformulating his complaint and bringing it again.

Berenson, who once worked for The New York Times, had garnered around 345,000 followers before Twitter kicked him off the platform last August. Twitter did so soon after Berenson posted that vaccines don't prevent “infection” or transmission” of COVID-19, and instead should be thought of as “therapeutics with a limited efficacy window.”

In a complaint filed late last year, Berenson alleged that Twitter violated his free-speech rights by banning him, among other claims.

The First Amendment prohibits the government, but not private companies, from censoring speech based on viewpoint.

But Berenson alleged that Twitter was a “state actor” -- meaning equivalent to the government -- on the theory that it acted in concert with government officials when it banned him.

Twitter in February urged Alsup to dismiss the case at an early stage. Among other arguments, Twitter said that as a private company, it has a First Amendment right to decide what material to allow on its platform. Twitter added that even if Berenson's allegations were true, they wouldn't establish that the company acted in concert with the government.

Last month, Berenson asked Alsup to reject Twitter's arguments and allow his lawsuit to proceed.

He argued that he raised a “plausible” claim that Twitter acted jointly with the government, noting that the ban occurred soon after President Joe Biden and other officials criticized social-media platforms for spreading false information about vaccines.

But Twitter counters in its filing this week that Berenson's allegations, even if true, wouldn't establish that the company carried out the ban in concert with the government.

Berenson “points to an assortment of generalized statements from federal officials to support his First Amendment claim but cannot overcome established law that the publicly expressed views of government officials are not themselves state action,” Twitter writes.

The company adds that Berenson “fails to allege a promise or any statement plausibly supporting the inference that Twitter’s decision was not its own.”

Alsup is expected to hold a hearing in the matter on April 28.