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Former NY Times reporter and author (check out those five-star reviews), Alex Berenson has taken Twitter to court, after the social media giant banned him from their platform after he suggested that the Covid-19 vaccine was ‘at best – a therapeutic with a limited window of efficacy and terrible side effect profile…”

In a 70-page complaint filed on Monday in the Northern District of California, Berenson accused Twitter of violating his First Amendment rights, and claims that a Twitter executive assured him on multiple occasions that he would be free to express his opinions on the platform without fear of punishment.

Despite the controversy around his statements, a senior Twitter executive repeatedly assured Mr. Berenson that the company backed his right to free expression and that he would continue to enjoy access to the platform,” reads the complaint.

Berenson also argues that Twitter was acting on behalf of the Biden administration by censoring his content, specifically that he has a “a uniquely viable claim that Twitter acted on behalf of the federal government in censoring and barring him from to its platform.”

The ban came just days after Biden administration officials – as well as Biden himself – called for a crackdown on Covid-19 misinformation on social media.

According to the complaint, Twitter is subject to a California law which applies to “common carriers,” a provision which dates back to 1872 and regulates companies that “offer to the public to carry persons, property, or messages.”

His lawyers argue that the “courts have repeatedly applied the 1872 law to telephone companies and other technologies that did not exist at the time it was enacted.”

Responding to Twitter lawyers, Berenson laid out why his suit has legs in a Tuesday blog post:

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So over on Twitter, one of America’s Finest Legal Scholars (TM) is taking time out from his busy practice to rebut the complaint pro malo.

He must have a lot to do because he’s spent most of the last day on this; I wonder which client he’s billing, or if he’s “between clients” at the moment. Anyway, you can tell he’s a serious guy because he throws up memes with every tweet! Just like Brandeis.

What’s fascinating is that despite his endless tweets, he somehow has not managed to grasp one of the core arguments – simple in theory, though complex in its details – that the complaint raises.

For those of you who have neither the time nor the inclination to wade through the argument, it goes like this:

  1. Twitter is indisputably a messenger service. A longstanding California law regulates messenger services as “common carriers.” This means that they must accept all messages they receive. Twitter thus must accept all tweets it receives. It has no First Amendment rights to refuse them on the basis that it does not agree with them.

  1. A federal law commonly called Section 230 “preempts” the California law, giving Twitter the right to reject tweets or ban users. (Whether that right is universal or whether Twitter must act in “good faith” in restricting service is a separate question; whether Twitter acted in “good faith” in this case is still another question. But put those issues aside for the moment.)

  2. Section 230 is what enables Twitter to claim a First Amendment privilege that supersedes the California law and restrict my own First Amendment right to speak; thus federal courts have the right to review 230 on First Amendment grounds. Eugene Volokh, who is a top constitutional scholar, was among the first people to raise this possibility. If you want to know more about about the argument, you can find it here: https://reason.com/volokh/2021/01/23/might-federal-preemption-of-speech…

  3. Defenders of Twitter and other social media behemoths have successfully confused courts and lawmakers about the distinction between Twitter the company and Twitter the platform. Under the First Amendment, Twitter the company is of course free to say whatever it likes – on its platform, in ads, through lobbyists, or anywhere else.

  4. But Twitter the platform should be open to all under California law; and even if the courts find that Section 230’s preemption of California law is consistent with the First Amendment and allows Twitter the company to set rules on who can use the platform, those rules cannot be completely arbitrary or discriminatory.

  5. Twitter itself acknowledges this fact in explaining its rules, and acknowledged it further in creating its “five-strike” policy around Covid-19 “misinformation.” Twitter is legally liable for failing to follow its own rules and contractual obligations in my case.

  6. The complaint has many other factual and legal arguments; I’m not going to go into them here. I am also not going to pull back even further and walk through exactly why the Section 230 as it has been interpreted is so dangerous – that’s an broader argument that belongs in an op-ed for a major newspaper (in the unlikely event they’ll have me). But I hope this helps everyone understand the complaint a little better.


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