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COMPLAINT

JAMES R. LAWRENCE, III (pro hac vice pending)

[email protected]

ANTHONY J. BILLER (pro hac vice pending)

ENVISAGE LAW

2601 Oberlin Road, Suite 100

Raleigh, North Carolina 27608

Phone: 919.755.1317

Facsimile: 919.782.0452

Phone: 626.508.1715

Facsimile: 626.508.1730

Attorneys for Plaintiff Alex Berenson

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

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COMPLAINT

1. Twitter is the world’s preeminent global messenger service and foremost platform

for journalism. According to its own mission statement, “defending and respecting the user’s

voice is one of our core values.” Twitter, Defending and respecting the rights of people using our

services, https://help.twitter.com/en/rules-and-policies/defending-and-respecting-our-users-voice

(last visited Dec. 19, 2021). Unfortunately, despite Twitter’s supposed commitment to freedom

wisdom, most notably about the profound harm to children caused by remote learning and

unnecessary school closures.

3. Mr. Berenson’s audience on Twitter soared as the pandemic continued, and in

August 2021 his tweets were viewed approximately 182 million times. 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. Even after he started critically covering the COVID-19 vaccines, in December 2020

the executive assured Mr. Berenson that his reporting “should not be an issue at all.” In March

2021, the same executive told Mr. Berenson that “your name has never come up in the

discussions around these policies [(i.e., potential censorship of Twitter users who criticized the

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4. Relying on these assurances, and aware of Twitter’s unique size and importance

outlet for journalism, and between May and August 2021, he provided readers thousands of

tweets.

5. Mr. Berenson’s relationship with Twitter changed dramatically over the course of

one week in July 2021. On Sunday, July 11, Dr. Anthony Fauci, President Joe Biden’s Chief

Medical Advisor, called Mr. Berenson’s comments about COVID-19 vaccine hesitancy

“horrifying.” By Friday, President Biden himself piled on, blaming social media companies for

“killing people” on account of their failure to adequately censor content. Hours after President

Biden’s comment, Twitter locked Mr. Berenson out of his account for the first time.

6. On August 28, in the wake of even more calls for censorship from government

officials, Twitter permanently suspended Mr. Berenson from its platform, citing “repeated

7. Twitter and other social media companies have repeatedly fended off lawsuits like

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company, it has even more fundamental rights to decide whether to publish material, rights that

“common carrier.” As the law then explains, “a common carrier must, if able to do so, accept and

carry whatever is offered to him.”

9. Courts have repeatedly applied the 1872 law to telephone companies and other

technologies that did not exist at the time it was enacted. Carrying messages for the public is, of

course, the very core of Twitter’s business. As the company itself explains, “Twitter is a social

broadcast network that enables people and organizations to publicly share brief messages

instantly around the world.” Twitter, About offensive content, https://help.twitter.com/en/safety-

and-security/offensive-tweets-and-content (last visited Dec. 19, 2021).

10. Section 230, which preempts certain state and local laws, does not shield Twitter

from the reach of California’s common carrier statute or the California Constitution. Twitter’s

Twitter to meet its obligations as a messenger service, then the First Amendment itself is at

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11. In fact, the Supreme Court has already signaled its awareness of these issues.

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.

13. Finally, courts have repeatedly held that even section 230 cannot and does not

protect Twitter from Mr. Berenson’s breach of contract and promissory estoppel claims, which

again do not depend merely on Twitter’s overall terms of service or broad promises about

freedom of speech but on specific, repeated representations the company made to Mr. Berenson

14. This case raises significant questions about private power and the state of free

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of users? In February 2021, in response to complaints from the Indian government, Twitter

unnecessary if the company had simply followed its own oft-repeated core principles—as well as

the general rules it created to monitor posts about COVID-19 and the specific promises it made

to Mr. Berenson. Now Twitter, as it has before, will claim that section 230 is a blanket shield

protecting it from any consequences for its behavior. But even section 230 does entirely not

exempt social media companies from the laws that govern everyone else.

PARTIES

15. Twitter is a Delaware corporation with a principal place of business located at

1355 Market Street, Suite 900, San Francisco, California 94103.

16. Alex Berenson is a resident of the State of New York.

JURISDICTION

17. Twitter is a citizen of Delaware and California. Mr. Berenson is a citizen of New

York. Twitter and Mr. Berenson have complete diverse citizenship. Mr. Berenson seeks damages

of more than $75,000. This Court has subject matter jurisdiction over this case under 28 U.S.C.

§ 1332.

18. This case presents questions that arise under the First Amendment. As such, this

Court has subject matter jurisdiction over this case under 28 U.S.C. § 1331. This Court has

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19. Twitter’s headquarters are in San Francisco, California. This Court has general

VENUE

20. Venue is proper in this judicial district under 28 U.S.C. § 1391 because Twitter’s

headquarters are in this judicial district. Further, Twitter’s Terms of Service provide that “[a]ll

disputes related to these Terms or the Services will be brought solely in the federal or state courts

located in San Francisco County, California, United States.”

DIVISIONAL ASSIGNMENT

21. Pursuant to Civil L.R. 3-2(c), this case should be assigned to the San Francisco

division because a substantial portion of the events giving rise to this case occurred at Twitter’s

corporate headquarters located in San Francisco.

LEGAL FRAMEWORK

I. Twitter and the Telegraph

928 F.3d 226, 230 (2d Cir. 2019), cert. granted, judgment vacated sub nom. Biden v. Knight

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republish the messages of others (retweeting), or convey approval or acknowledgement of

facts-about-americans-and-twitter/. “In the three months ended December 31, 2020, [Twitter]

had 192 million average [monetizable daily active users or] MDAU,” meaning the number of

“people, organizations, or other accounts who logged in or were otherwise authenticated and

accessed Twitter on any given day.” Twitter, Annual Report (Form 10-K), at 39 (Feb. 17, 2021).

The company leverages this user base to derive billions of dollars in advertising and licensing

revenues. Id. at 43.

24. The ubiquity of the company’s platform gives it significant influence over public

conversation. Among U.S. adult Twitter users, “more than half of those users (55%) get news on

the site regularly.” Mason Walker & Katerina Eva Matsa, News Consumption Across Social

Media in 2021, Pew Res. Ctr., Sept. 20, 2021,

platform for engaging with these fellow citizens.

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2021). Twitter’s market share appears to have increased since 2018, when one report placed the

in the social media messaging market, because Twitter’s platform differs significantly from the

other entities included in the comparable market in the above-cited reports. Platforms such as

Telegram are more like Twitter than Facebook/Meta is. Compared to those entities, Twitter is the

clear market leader.

27. Bolstering its market power, Twitter also boasts a significant patent portfolio,

which it can use to exclude new market entrants and competitors. Twitter Patent Portfolio – A

Little Organic and Mostly Acquired, GreyB, https://www.greyb.com/twitter-patent-portfolio/

(last visited Dec. 19, 2021). The company enjoys other incumbent advantages inherent in having

the economies of scale to comply with an ever-growing number of data security and privacy

regulations. See, e.g., Cal. Civ. Code §§ 1798.100 to 1798.199.100.

that the private entities that controlled this amazing new technology would use that power to

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center’s argument “that a private property owner has a First Amendment right not to be forced by

Pruneyard, 477 U.S. at 87. As noted above, the same is true of Twitter.

44. The Pruneyard Court further explained that “[t]he views expressed by members

of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be

identified with those of the owner.” Id. The shopping center owner “can expressly disavow any

connection with the message by simply posting signs in the area where the speakers or

handbillers stand.” Id.; see also Biden, 141 S. Ct. at 1224 (Thomas, J., concurring) (noting

“regulations that might affect speech are valid if they would have been permissible at the time of

the founding,” and that would be particularly true “where a restriction would not prohibit the

company from speaking or force the company to endorse the speech”). Twitter is of course free

to disavow speech on its platform and often does.

of the enacting State’s authority.’” Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070,

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the harmful properties of fuel” and the standards “do[] not control the production or sale of

headquarters.

47. Twenty-five years ago, Congress enacted the Telecommunications Act of 1996,

Pub. L. No. 104-104, 110 Stat. 56 (Feb. 8, 1996). Within that statute lies the Communications

Decency Act of 1996 or CDA. The CDA is Title V of the Telecommunications Act of 1996 with

the heading “Obscenity and Violence.” 110 Stat. at 133. Section 230 of the CDA is in Subtitle A

of Title VII, which Congress captioned “Obscene, Harassing, and Wrongful Utilization of

Telecommunications Facilities,” id., tucked alongside requirements to scramble “sexually

explicit adult programming,” id. at 136. Congress placed section 230 of the CDA in section 509

of the Telecommunications Act of 1996 under the family-first heading “Online Family

see.” 141 Cong. Rec. H8469 (statement by Rep. Cox). Noting that “the existing legal system

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take steps to screen indecency and offensive materials for their customers,” and “keep[]

(statement by Rep. Goodlatte). Critically, Representative Goodlatte stated the law “doesn’t

violate free speech or the right of adults to communicate with each other.” Id.

50. The operative provision of section 230 is subsection (c):

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§ 230(e)(3). But elsewhere in the Telecommunications Act of 1996, Congress provided that

protected speech. That is an odd outcome given Congress’ focus on pornography in the CDA.

Congress even explicitly found that “[t]he Internet and other interactive computer services offer

a forum for a true diversity of political discourse, unique opportunities for cultural development,

and myriad avenues for intellectual activity.” 47 U.S.C. § 230(a)(3). Interposing section 230 to

nullify California’s common carrier statute and the free speech and petition guarantees of the

California Constitution to facilitate censoring speech about matters of public concern undermines

the very free expression Congress said it wanted to encourage, invading the sovereign

prerogatives of the States at the same time.

53. Courts have read section 230 to immunize Internet platforms from liability where

plaintiffs sued them for their publishing decisions. See, e.g., Barnes v. Yahoo!, Inc., 570 F.3d

information content provider”); Fair Housing Council of San Fernando Valley v.

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54. Plaintiffs in those cases did not raise the California common carrier statute, Cal.

carriers or telecommunications carrier.” 110 Stat at 135 (codified at 47 U.S.C. § 223(e)(6)).

California’s common carrier statute is not “in this section,” i.e., the California law is not in 47

U.S.C. § 223. If Congress intended to bar treatment of platforms as common carriers, it could

have explicitly done so, but did not, which is telling considering the history of common carriage

regulation by the States. Lakier, supra, at 2320 (noting that “[d]ozens of states enacted [common

carriage] statutes of this sort between 1848 and the early twentieth century”). If Congress had

wanted to bar the possibility of applying these laws to the Internet, it did not do so with

“exceedingly clear language,” even though an expansive reading of section 230 would

significantly alter the ability of States like California to govern themselves in this area. Cf.

United States Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1849–50 (2020)

55. Moreover, section 230 does not categorically bar breach of contract, promissory

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F.3d 1040, 1054 (9th Cir. 2019), cert. denied, 141 S. Ct. 13, 208 L. Ed. 2d 197 (2020) (holding

petition the government for the redress of grievances could not be vigorously protected from

interference by the State unless a correlative freedom to engage in group effort toward those ends

were not also guaranteed.”). In Railway Employees Department v. Hanson, 351 U.S. 225 (1956),

the Supreme Court considered the interplay between a provision of the Nebraska Constitution

which prohibited employers from “exclud[ing] persons from employment because of

membership in or nonmembership in a labor organization” and a federal statute that empowered

employers to “requir[e] all employees within a stated time to become a member of the labor

organization.” Id. at 228.

57. From the employee’s perspective, the Nebraska Constitution granted associational

freedoms beyond those guaranteed by the First Amendment, namely associational freedoms

which expressly declares that state law is superseded.” Id. at 232. In this regard, the Supreme

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therein,” id. (quoting Hanson v. Union Pac. R. Co., 160 Neb. 669, 698, 71 N.W.2d 526, 547

protection for speech than the First Amendment in the abstract because they grant rights against

private parties. When an “interactive computer service” subject to these state laws censors

speech in violation of those laws, it is “by force of” section 230, “a federal law which expressly

declares that state law is superseded.” Id. Federal law is the source of the private censorship, just

like the federal statute in Hanson was the source of the limits on employee freedom of

association, raising “justiciable questions” under the First Amendment.

59. For independent journalist and best-selling author Alex Berenson, all this was

largely academic until July 2021. As detailed below, during Mr. Berenson’s decade-plus on

Twitter the company largely lived up to its stated commitments to free speech, furnishing him a

platform to report on numerous issues, including the COVID-19 pandemic. But then, this past

account. A month later, it permanently suspended him. How did it come to this?

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sign it was “authentic, notable, and active.” Twitter, About Verified Accounts,

https://help.twitter.com/en/managing-your-account/about-twitter-verified-accounts (last visited

Dec. 19, 2021). As of January 2020, Mr. Berenson had approximately 7,000 Twitter followers,

many of whom were drawn to his previous books and reporting.

61. In January 2020, Mr. Berenson tweeted for the first time about COVID-19. In that

tweet, he shared an article about SARS-CoV-2, the coronavirus that causes COVID-19, by New

York Times columnist Nicholas Kristof. The tweet attracted one “like.” At the time, much of the

press did not appreciate that the COVID-19 pandemic would become, as NBC’s Lester Holt put

it later, “the story of my lifetime.” Ted Johnson, NBC News’ Lester Holt On Reporting On The

Coronavirus: “We’ve All Covered The Burning House, But This Time We’re In The House” –

important news stories. Beginning in March 2020, his attention increasingly turned to COVID-

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63. In late March 2020, Mr. Berenson reported on revised epidemiology models

entrepreneur Elon Musk, among other prominent figures, retweeted Mr. Berenson’s post. The

thread’s initial tweet, which is shown below, drew 7,468 likes, 3,743 retweets, and more than 4.6

million impressions. Twitter did not label this tweet false or misleading.

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175 million impressions. As of the start of May, Mr. Berenson had increased his Twitter

II. Twitter’s Evolving Approach to Medical Misinformation During the Early Days of

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As Mr. Borrman put it, Twitter is “leading with labeling here, rather than simply deciding

Mr. Berenson’s reporting. Instead, he advised Mr. Berenson there was no “major change”

coming. While Mr. Berenson certainly criticized the laws Twitter’s executive referred to in the e-

mail, and reported on the underlying evidentiary basis for them, at no relevant time did he

encourage individuals to break those laws.

86. As a sophisticated commercial entity, Twitter employs counsel and Mr. Borrman

had ample time and opportunity to seek out legal counsel to vet the statements and assurances the

company made to Mr. Berenson. Upon information and belief, Mr. Borrman sought such counsel

and made the statements in the May 12 e-mail message with the benefit of that counsel.

87. Consistent with Mr. Borrman’s assurances, Twitter’s treatment of Mr. Berenson

stayed the same. Aside from corresponding with Mr. Borrman regarding a “dox” threat, Mr.

practices were upcoming, Mr. Berenson continued to build his Twitter following, spending hours

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Telegram and Substack, two alternative platforms to Twitter available to him at the time, or

up.” Todd Haselton, Elon Musk calls for Amazon breakup after Covid-19 skeptic claims it

censored his book, CNBC (June 4, 2020), https://www.cnbc.com/2020/06/04/elon-musk-calls-

for-amazon-split-after-alex-berenson-claims-censorship.html. Ultimately, because of this

pressure, Amazon reversed course and let Mr. Berenson sell the pamphlets on its platform.

90. Upon information and belief, Twitter was fully aware of Mr. Berenson’s conflict

with Amazon. The company was also aware of the content of Mr. Berenson’s pamphlets, which

presented data and analysis undermining the case for government lockdown measures. Mr.

Berenson sold more than 300,000 copies of his “Unreported Truths” pamphlets, and he used to

Twitter to generate much of the awareness of those works.

91. Meanwhile, back on Twitter, Mr. Berenson continued to criticize government

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This tweet received more than 1,250 likes and retweeted more than 350 times.

safety data” is needed, “this is legitimately good news,” arguing that the emergence of a COVID-

19 vaccine might offer a pathway out of the pandemic once and for all.

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95. One week later, on November 16, Moderna released results about its vaccine

and into early December 2020 continued to be other COVID-19 issues, and not vaccines. On

December 11, Mr. Berenson tweeted about alleged political pressure related to FDA’s

authorization of the Pfizer-BioNTech COVID-19 vaccine. Three days later, on December 14,

Mr. Berenson tweeted about an article published in The New England Journal of Medicine

regarding the rate of occurrence of “severe adverse events” in a Pfizer-BioNTech vaccine trial.

97. Two days later, Twitter announced a new policy regarding misleading COVID-19

vaccine information. Twitter Safety, COVID-19: Our approach to misleading vaccine

information, Twitter (Dec. 16, 2020),

https://blog.twitter.com/en_us/topics/company/2020/covid19-vaccine. The company announced

it would start to “remove Tweets which advance harmful or misleading narratives about COVID-

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Id. Twitter also stated “we may label or place a warning on Tweets that advance unsubstantiated

policy “it must” do the following: (1) “advance a claim of fact, expressed in definitive terms; (2)

“be demonstrably false or misleading, based on widely available, authoritative sources”; and (3)

“be likely to impact public safety or cause serious harm.” Id.

99. The policy set forth five categories of misleading information. The company said

it “will label or remove false or misleading about,” among other things, “official regulations,

restrictions, or exemptions pertaining to health advisories,” regarding “[p]ersonal protective

equipment (PPE) such as claims about the efficacy and safety of face masks to reduce viral

spread.” Id.

100. At the same time, Twitter said “[w]e seek to protect robust, public debate about

the response to COVID-19, and recognize that the state of scientific knowledge about certain

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time, Twitter continued to profit from Mr. Berenson’s coverage of COVID-19 by monetizing his

and the long-term efficacy of the shots. Mr. Berenson often linked to primary and secondary

source materials from which he was drawing these conclusions.

106. Twitter did not label any of this reporting false or misleading. Nor did the

company take any of the posts down. Given Twitter’s personal assurances to him, Mr. Berenson

had no reason to believe the company would take action against his account or keep him from

reporting on Twitter.

V. Twitter introduces its new five-strike policy, reassures Mr. Berenson, and declines

to “strike” any of his subsequent tweets.

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that “[i]ndividuals will be notified directly when a label or required Tweet removal results in

109. The day after Twitter announced the five-strike policy, Mr. Berenson again

contacted the company, seeking assurances he could continue reporting on COVID-19 using the

platform:

analysis that people are generally not seeing elsewhere and I respect that you do

not want conspiracy theories, etc, on the site. If your fact-checkers do have

questions about something I’ve written, I hope you will let me know and give me a

chance to respond to it before taking any action.

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.”

111. With Twitter’s express encouragement, and reasonably believing he had no

reason to fear censorship, Mr. Berenson kept building his Twitter following at the opportunity

cost of time he could have spent on other platforms and activities. He also kept up his relentless,

daily coverage of COVID-19 after Twitter’s launch of the misleading information and five-strike

policy, including the following:

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stupid?”; and

112. Twitter did not label any of these tweets. And since there was no label, the

company did not count any of these tweets as a “strike” against Mr. Berenson’s account under

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113. Nevertheless, Twitter did label some of Mr. Berenson’s other tweets as

tweets regarded Chinese-made COVID-19 vaccines. Another presented analysis of COVID-19

data from France and the United Kingdom. The fourth tweet dealt with a spike in COVID-19

deaths following a first vaccine dose. Finally, on July 8, Mr. Berenson tweeted a link to an article

about issues related to transplanting organs from deceased patients “with vaccine-induced

thrombosis and thrombocytopenia” which Twitter labeled “misleading.”

115. Mr. Berenson complained to Mr. Borrman about his company’s labeling of the

March 15 and May 30 tweets. Mr. Borrman stated he would look into the matter, but he did not

respond further. Given Mr. Borrman’s prior assurances and Twitter’s subsequent silence, Mr.

Berenson believed the labeling could have been attributable to the company’s use of algorithms,

which Twitter was still honing.

up before an action is taken.” Importantly, none of Mr. Berenson’s tweets up until that point had

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have no bearing on this dispute.

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that Twitter’s permanent suspension of his account was not based on any violation of the Terms.

136. Twitter’s COVID-19 misinformation rules provide a definite, objective standard.

The operative medical information policy provides that “for content related to COVID-19 to be

labeled or removed under this policy,” which is also the predicate for an account incurring a

“strike,” the content “must” do the following: (1) “advance a claim of fact, expressed in

definitive terms; (2) “be demonstrably false or misleading, based on widely available,

authoritative sources”; and (3) “be likely to impact public safety or cause serious harm.” The

five-strike system itself uses the phrase “we will” to describe the policy. The policy contains no

reservation of rights to permanently suspend an account or bar a user from the platform for “any

or no reason” as the Terms purport to do. Further, the policy was issued after the operative

Terms governing Mr. Berenson and Twitter’s relationship. To suspend Mr. Berenson from the

strike, which coincided with President Biden’s charge that social media companies were “killing

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In the tweet, Mr. Berenson linked to another user’s analysis of COVID-19 case counts in

countries with high vaccination rates

138. The tweet did not violate Twitter’s policy, for at least five reasons. First, Twitter

never labeled the underlying, linked-to tweet as “misleading,” the only factual content in Mr.

Berenson’s tweet.

Berenson tweeted his opinion that “the vaccines are failing,” which was based on data that “[t]he

Twitter (July 16, 2021, 6:59 AM),

https://twitter.com/holmenkollin/status/1415989536933490688.

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139. On July 27, Twitter locked Mr. Berenson’s account for twelve hours again, his

141. This tweet was true, and not false or misleading. Mr. Berenson cited a pre-print,

non-peer-reviewed review of six month safety efficacy data for the Pfizer-BioNTech COVID-19

vaccine. Stephen J. Thomas et al., Six Month Safety and Efficacy of the BNT162b2 mRNA

COVID-19 Vaccine, July 28, 2021,

https://www.medrxiv.org/content/10.1101/2021.07.28.21261159v1.full.pdf. The report noted

that “[d]uring the blinded, controlled period, 15 BNT162b2 and 14 placebo recipients died.” Id.

difference in overall mortality between patients who received the Pfizer-BioNTech COVID-19

vaccine and the placebo. To be clear, his comment was not about whether the vaccine studied

prevented patients from contracting COVID-19 or whether patients who took the vaccine had

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less severe cases of the disease. It was an evidence-based interpretation of overall mortality data

This is what Mr. Berenson meant when he tweeted that the “trial blind is broken now.”

143. Critiquing or otherwise questioning clinical trial design, particularly the

circumstances around breaking trial blinds, could hardly be considered controversial or

damaging to the public. In a 1998 guidance document, FDA noted that “[b]reaking the blind (for

a single subject) should be considered only when knowledge of the treatment assignment is

deemed essential by the subject’s physician for the subject’s care.” FDA, Guidance for Industry,

E9 Statistical Principles for Clinical Trials, at 12 1998), available at

https://www.fda.gov/media/71336/download.

144. A month later, during the evening of August 28, Twitter issued its fifth strike

against Mr. Berenson, permanently suspending his account. The company did not cite the

///

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infected, that they are generally without symptoms or minimally symptomatic, however it is

clear that they are capable of transmitting the infection to uninfected individuals.” Dr. Fauci on

COVID-19 Spread, Yahoo Finance, July 31, 2021, https://youtu.be/mP9iHyj1uiU.

146. Dr. Fauci’s July 30 observation remains true today. In a December 2021 editorial

in The New England Journal of Medicine, Dr. Fauci and two other medical doctors explained

that “[a]s important as [the COVID-19 vaccines] are, however, their protective efficacy wanes

over time, necessitating booster doses,” and that “[v]accination has also been unable to prevent

‘breakthrough’ infections, allowing subsequent transmission to other people even when the

vaccine prevents severe and fatal disease.” David M. Morens, Jeffery K. Taubenberger, M.D.,

Ph.D., and Anthony S. Fauci, Universal Coronavirus Vaccines—An Urgent Need, New Engl. J.

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Med., Dec. 15, 2021, https://www.nejm.org/doi/full/10.1056/NEJMp2118468. If anything, this

https://web.archive.org/web/20211210152757/https://help.twitter.com/en/rules-and-

policies/medical-misinformation-policy. That change, made more than three months after Mr.

Berenson’s August 28 tweet, would have arguably brought his prior statement within the scope

of the policy. But then Twitter reversed course. On December 16, the day after The New England

of Journal Medicine article was published, Twitter revised its policy to say it would label claims

that “people who have received the vaccine can spread or shed the vaccine (or symptoms, or

immunity)” as opposed to the virus. Twitter, COVID-19 misleading information policy, Dec. 16,

2021, https://web.archive.org/web/20211216085837/https://help.twitter.com/en/rules-and-

policies/medical-misinformation-policy. What that means is that, even today, Mr. Berenson’s

allegedly ban-worthy claim that the COVID-19 vaccines do not stop infection or transmission

corrected on Dec. 16, and did not reflect the true policy anyway.” Dan MacGuill, Did Twitter

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be consulted. In a glossary on its website, the CDC defines the term in relevant part as a

“suspension of live (usually attenuated) or inactivated microorganisms (e.g. bacteria or viruses)

or fractions thereof administered to induce immunity and prevent infectious diseases and their

sequelae.” CDC, Vaccines & Immunizations, Glossary,

https://www.cdc.gov/vaccines/terms/glossary.html (last updated July 30, 2020) (emphasis

the disease.” FDA, Vaccine Development – 101, Dec. 14, 2020, https://www.fda.gov/vaccines-

blood-biologics/development-approval-process-cber/vaccine-development-101 (emphasis

added). Courts have similarly defined the term. See, e.g., Dean v. Sec’y of Health & Hum. Servs.,

No. 16-1245V, 2018 WL 3104388, at *9 (Fed. Cl. May 29, 2018) (defining “vaccine” to be “any

substance designed to be administered to a human being for the prevention of 1 or more

diseases”) (quoting 26 U.S.C. § 4132(a)(2)). Finally, California’s Sherman Food, Drug, and

Cosmetic Law contains two references to the term “vaccine,” with the one relevant reference

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relating the term to preventing infection. See Cal. Health & Safety Code § 111605 (defining

side effect profile of the vaccines were at very least protected opinions under the terms of

Twitter’s policy as were his critiques of vaccine mandates.

151. Twitter gave no notice to Mr. Berenson prior to issuing its fifth strike and

permanent suspension from the platform. Again, this was contrary to the prior representations

made to him by a company executive. The company also denied Mr. Berenson’s appeal to be

reinstated to the platform. Further, the tweets that precipitated his suspension from Twitter, the

five strikes, were all substantially similar in content and tone to tweets he made in the past with

Twitter’s knowledge, consent, and apparent approval. Again, Twitter executive Brandon

Borrman assured Mr. Berenson, even after he started to tweet about the vaccines, that “your

name has never come up in the discussions around these policies.”

belief, Twitter has no direct evidence that any of the purported five strikes against Mr.

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Amendment, because the company would not be required to broadcast messages with which it

respectively, while his Twitter profile was viewed 19.5 and 25 million times during the same

time period. Upon information and belief, at all relevant times, to include during July and August

2021, Twitter profited from Mr. Berenson’s reporting on the platform.

155. Twitter itself competes against Mr. Berenson for an audience regarding COVID-

19. Twitter also profits from use of its platform by other media outlets, to include outlets and

journalists that compete against Mr. Berenson. With respect to COVID-19, the company

acknowledges that “[m]ore people than ever are coming to Twitter to learn about COVID-19.”

To capitalize on this audience, Twitter explained it is rolling out “experimental settings [to] give

newsrooms and journalists over the conversations they start.” Twitter, COVID-19 news coverage

on Twitter, https://media.twitter.com/en/articles/best-practice/2020/covid-19-news-coverage-on-

the company’s complete censorship of his speech provides itself and media outlets the company

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193. To the extent section 230 applies to the UCL, a federal statute “is the source of

195. Using section 230, a federal statute, to nullify the UCL to facilitate private

censorship of Mr. Berenson’s speech violates the First Amendment.

196. Moreover, “immunity under [section 230] does not extend to anticompetitive

conduct.” Enigma Software, 946 F.3d at 1054. To the extent Twitter’s censorship conferred a

competitive advantage on itself and Mr. Berenson’s journalistic competitors, the company cannot

claim the benefit of section 230 immunity.

197. Further, though section 230(e)(2), which provides that “[n]othing in this section

shall be construed to limit or expand any law pertaining to intellectual property,” has been read

to apply only to limited federal intellectual property claims in the Ninth Circuit, Perfect 10, Inc.

v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007), the Third Circuit recently held that the provision

entitled to its benefits.”), and should be applied here to find Mr. Berenson’s UCL outside the

COUNT V

198. Mr. Berenson re-alleges the preceding paragraphs herein.

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199. The Terms and Twitter’s rules, to include the COVID-19 medical information

202. Twitter amended its Terms by promulgating its COVID-19 five-strike policy.

203. Twitter’s rules committed the company to a specific five-strike policy under

which content must meet certain defined, objective criteria to be deemed violative. The company

is bound to apply that policy objectively and rationally under California’s duty of good faith and

fair dealing which requires, among other things, “each contracting party to refrain from doing

anything to injure the right of the other to receive the benefits of the agreement.” Egan v. Mut. of

Omaha Ins. Co., 24 Cal. 3d 809, 818, 620 P.2d 141 (1979).

204. As set forth above, the content Mr. Berenson published did not violate any of

Twitter’s rules, as defined.

205. Twitter breached its contract with Mr. Berenson by permanently suspending his

208. Since Twitter is a common carrier and its actions against Mr. Berenson were at

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from liability for the gross negligence, fraud, or willful wrong of himself or his servants.” Cal.

COVID-19;

through the emotion”;

addressing things going forward”;

and around December 2020 “should not be an issue at all”;

discussions around these policies”; and

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FSB, 183 Cal. App. 4th 1031, 1045–46, 107 Cal. Rptr. 3d 683, 696 (2010) (surveying cases

where courts found various statements to be sufficiently definite, including a “promise to use

‘best efforts to acquire land sufficient to support promissory estoppel” and “borrowers promise

that ‘if’ he obtained earthquake insurance, lender would be loss payee”).

212. Further, Twitter had specific knowledge of Mr. Berenson’s tweets, and did not

object to them. Instead, the company enticed Mr. Berenson to continue using its service.

213. Mr. Berenson relied on Twitter’s promises and assurances by continuing to use

the platform.

214. Mr. Berenson’s reliance was reasonable and foreseeable.

215. Mr. Berenson was injured by his reliance by continuing to build his following on

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217. The California Supreme Court has interpreted “sections 2 and 3 of article I of the

and communication about issues.

219. The rule in Pruneyard has not yet been extended to social media companies, but

the logic of the case warrants application to Twitter.

220. Under Pruneyard, and if extended, Twitter’s censorship of Mr. Berenson’s speech

violates the California State Constitution.

221. To the extent section 230 applies to the California Constitution, a federal statute

“is the source of the power and authority by which any private rights are lost or sacrificed.”

Hanson, 351 U.S. at 232.

222. Section 230 is then “the governmental action on which the Constitution operates,

though it takes a private agreement,” or in the case of social media companies, private actions,

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226. According to Twitter, for at least a certain time period, Mr. Berenson used Twitter

WHEREFORE, Mr. Berenson respectfully prays that this Court:

A. Enter an injunction requiring Twitter to comply with California’s common carrier

statute, the UCL, its contractual obligations, and the promises the company made to Mr.

Berenson by requiring Twitter to carry Mr. Berenson’s messages as it does other members of the

public;

B. Enjoin Twitter from violating Mr. Berenson’s rights under the federal Lanham

Act and the California and U.S. Constitutions;

C. Award Mr. Berenson damages under the federal Lanham Act, the California

common carrier law, and the UCL;

D. Award Mr. Berenson damages for breach of contract;

G. Award any other relief to Mr. Berenson which this Court deems necessary and

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Respectfully submitted, this 20th day of December 2021.

ENVISAGE LAW

By: /s/ James R. Lawrence, III

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