Twitter Can't Shake Journalist's Lawsuit Over Account Ban

In a mixed ruling, a federal judge has dismissed journalist Alex Berenson's claims that Twitter violated his free speech rights by banning him, but said he can proceed with a claim that the company broke a promise to him.

The decision, issued Friday by U.S. District Court Judge William Alsup in the Northern District of California, stems from a lawsuit brought late last year by Berenson.

Berenson, a vaccine skeptic, alleged that Twitter banned him over posts related to the COVID-19 vaccines -- including an August post opining that vaccines don't prevent “infection” or transmission” of the virus, but should be thought of as “therapeutics with a limited efficacy window.”

Among other claims, he contended that Twitter violated his First Amendment right to free speech, and that the company broke its contract with him.

While only the government -- and not private companies -- are bound by the prohibition on censorship, Berenson attempted to argue that Twitter acted as an agent of the government by banning him.

He specifically noted in the complaint that the ban came soon after President Joe Biden criticized social media platforms for spreading incorrect information about vaccines.

Alsup rejected that argument and dismissed Berenson's First Amendment claim, writing that the allegations, even if proven true, wouldn't show that Twitter had conspired with the government.

“The free speech clause only prohibits government abridgement of speech,” Alsup wrote, referring to the portion of the First Amendment dealing with freedom of speech. “Twitter is a private company ... Twitter’s actions here, moreover, do not constitute state action.”

The judge also said that Twitter's decisions about content moderation were protected by Section 230 of the Communications Decency Act, which immunizes companies over decisions to suppress posts.

But Alsup said Berenson could attempt to prove that Twitter broke its contract with him by allegedly violating an explicit promise made in March 2021 by Brandon Borrman, former vice president of global communication.

Borrman's alleged statement to Berenson came on the same day that Twitter revised its COVID-19 policies by instituting a “five-strike” plan -- which involved notifying users about posts that violated the company's policies, suspending them, and ultimately banning them after their fifth strike.

On that day, Borrman allegedly told Berenson his name “has never come up in the discussions around these policies.”

Borrman added, “If it does I will try to ensure you’re given a heads up before an action is taken, but I am not always made aware of them before they’re executed. If something happens, please let me know,” according to the complaint.

Berenson argued that none of his tweets should have been considered strikes under Twitter's policy, and alleged that Borrman never warned him about his account.

Alsup said Berenson could move forward with claims stemming from Borman's alleged statements.

“Here, Twitter allegedly established a specific, detailed five-strike policy regarding COVID-19 misinformation and its vice president gave specific and direct assurances to plaintiff regarding his posts pursuant to that policy,” Alsup wrote.

He added that Twitter's policy and Borrman's alleged statements, taken together, “plausibly qualify as a clear and unambiguous promise that Twitter would correctly apply its misinformation policy and try to give advance notice if it suspended plaintiff’s account.”

1 comment about "Twitter Can't Shake Journalist's Lawsuit Over Account Ban".
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  1. T Bo from Wordpress, May 3, 2022 at 11:57 a.m.

    And the Berenson statement turned out to be true.

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