Above the Law report
Back 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 …