from the throwing money down the toilet dept
For good reasons, Alex Berenson has been dubbed the “pandemic’s wrongest man.” He played up the fact that he once wrote for the NY Times and turned that into a weird, shady attack on pot, before going all in on medical misinformation. In the early days he played down the threat of COVID, and has since become a leading vaccine disinfo spreader. He had built a large Twitter following for his nonsense, and shortly before his Twitter account was finally shut down, he had warned that if it was shut down he would sue Twitter… for defamation. Then, once he was banned, he (in typical grifter fashion) immediately went into fundraising mode even though the extraordinarily wealthy heir of a frozen food fortune promised to fund such a lawsuit.
It’s unclear whether or not your frozen TV dinners from the 1980s are now funding it, but a Berenson has now filed his long-awaited lawsuit against Twitter. Somewhat amazingly, given the multitude of bad legal theories put forth in the complaint, it doesn’t include a defamation claim. Instead it has eight claims, and they start out laughable and, incredibly, only gets worse from there:
- Violation of the First Amendment
- Federal False Advertising and Unfair Competition
- Violation of California Common Carrier Law
- Violation of California Unfair Competition Law
- Breach of Contract
- Promissory Estoppel
- Violation of the California Constitution
- Unjust Enrichment
I don’t have the time or the stamina to fully break down how truly ridiculous all eight of these claims are, or why they will so obviously fail, but let’s just do the lightning round version (this will skip over some of the nuances, but none of the nuances help Berenson, they only make his case look that much dumber). Suffice it to say, like many similarly situated people — those with huge internet followings but with a tenuous grasp on reality — this lawsuit appears to be extremely performative, rather than serious.
- Violation of the 1st Amendment: The government can violate the 1st Amendment. Twitter is not the government. Twitter cannot violate the 1st Amendment. Like a bunch of other failed lawsuits, Berenson tries to claim that Twitter has become a state actor because the federal government has been encouraging social media to be better about stopping the spread of misinformation, but that’s not how any of this works.
- False advertising: This seems like the replacement claim after Berenson’s lawyers realized defamation claims would even be a step too far. It’s arguing that Twitter’s labeling of some of Berenson’s tweets as misleading is “false advertising” but, again, that’s now how any of this works.
- California’s common carrier law… is easily pre-empted by Section 230. Berenson’s lawyers make a really weird argument that because this California law is so old, somehow that means federal pre-emption doesn’t apply. But, um, again, that’s not how any of this works.
- Unfair competition: Lol, wut? Berenson is not a competitor to Twitter. There’s a lot of nonsense mumbo jumbo and out-of-context cites here, but the only attempt to actually explain how this is unfair competition is this bit of nonsense: “To the extent Twitterâ€™s censorship conferred a
competitive advantage on itself and Mr. Berensonâ€™s journalistic competitors, the company cannot
claim the benefit of section 230 immunity.” Again, that’s not how any of this works.
- Breach of contract: Again, Twitter’s terms say they can remove you for any reason. There’s no breach. The creative lawyering here is to argue that Twitter’s terms are “a contract of adhesion” and then mumble, mumble, Twitter breached its contract. Say it with me: that’s not how any of this works.
- Promissory estoppel: The argument here is that because Twitter’s PR boss had, at an earlier time, made some vague comments to Berenson that his account wasn’t likely being targeted by new misinfo rules, Berenson is claiming that was a promise that he then relied on. Except, even the quotes provided by Berenson from this single Twitter employee undermine this entire argument, as there’s a point where the PR guy admits that it’s others at the company who make these decisions, and he often finds out later. No promises were made, and even if you could somehow construe it as a promise about previous behavior that means fuck all (legally speaking) about future behavior. You know the chorus by now: that’s not how any of this works.
- Violation of the California Constitution: Here, Berenson’s lawyers pull out the Pruneyard card, because every one of these lawsuits has to cite Pruneyard, even though every one of them fails. Pruneyard, of course, was the case about a shopping mall and free speech, but which was (1) narrowly decided, and (2) multiple subsequent cases (all of which Berenson’s lawyers ignore) have narrowed the Pruneyard standard so that today it basically applies to the Pruneyard Shopping Center and… almost no where else. So, yes, once again, that’s not how any of this works.
- Unjust enrichment: Saving the dumbest for last. It’s short and sweet and so dumb I’ll just post the argument here for you to marvel at: “According to Twitter, for at least a certain time period, Mr. Berenson used Twitter in violation of the companyâ€™s policies, and Twitter profited in the process. Any profits traceable to Mr. Berensonâ€™s reporting are a benefit conferred on Twitter that it should not have received.” I mean, bold strategy, but, let’s close this out with a final rendition: this is not how any of this works.
This is a long list of silly, debunked, or occasionally creative attempts to try to get around Section 230. None of them should or will work. The case should be dismissed either because of 230 immunity, or as in the similarly stupid Prager University case, maybe the judge will skip over all the nonsense and throw it out on 1st Amendment grounds entirely. This is not a serious lawsuit and the lawyers who filed it — James Lawrence and Anthony Biller from Envisage Law, and Sean Gates from Charis Lex — should all be embarrassed for handing the court a pile of such utter nonsense.
Twitter has the right to remove people from its platform. It’s Twitter’s platform. It makes the rules. If it feels Berenson violated the rules, game over. This case is nonsense piled upon nonsense.