Thread by @AkivaMCohen

OK, let's talk about this Alex Berenson complaint. It's a chonky boy, clocking in at 228 paragraphs and 70 pages, and I'm actually in quite a bit of pain at the moment (did something to my back) so this will definitely break across a few days. But we'll do our best

https://twitter.com/riScorpian/status/1473095600291860481

So this is a pretty straight up suit, Berenson v. Twitter. California requiring numbered pleading paper (those numbers down the side) is an abomination, but it's always nice to see the causes of action laid out up front. What are they?

Like all good litigators, Berenson's team leads with his strongest argument, which is ... that a private company violated the First Amendment

He follows that up with false advertising (interesting to see where that goes) and ... unfair competition?

Is Alex Berenson running a social media platform I'm unaware of? I mean it's possible, but if so it's going to be hard to make out a claim based on them not letting him on Twitter. Of course,

Then they add in violation of California's common carrier law (would love to see how they get around 230 preemption), breach of contract and promissory estoppel (not going to fly given Twitter's terms of service saying "we can ban you for any reason or none"), violation of the

California constitution (again, by a private actor, should be fun) and unjust enrichment.

Wait, unjust enrichment?

From all the money Twitter made on Alex Berenson? OK.

I guess that's one way to put it.

I mean, I'd describe it more as "prominent source of distorted information for the innumerate" - I still remember his insane thread on Israel's vaccination results - but that's an elegant way to say the same thing

So here's the basis for his promissory estoppel claim, and there are a few problems I can see already. First, "a senior Twitter executive" is not necessarily going to be in a position to bind the company. More fundamentally ...

promises about how someone intends to behave in the future are completely unenforceable. "This is what we currently plan to do" doesn't mean that they can't change their mind tomorrow; this is black letter contract law. We don't expect parties to be able to predict the future

Here, for example, is a 9th Circuit case on this in the employment context

Also, under California law, promissory estoppel requires a "clear and unambiguous" promise that induced some form of reliance. No reading tea leaves. Anything short of "we promise we won't ban you for this nonsense" isn't going to cut it

What's the reliance, btw? Just this

Live look at the basket in which Berenson chose to place all his eggs

Man, I was hoping for better, but we're doing this "twitter censored me for the government" conspiracy nonsense again.

Also, "Twitter misinterpreted its own rules" is just never ever ever going to be a viable argument. It's their rules! They get to decide what they mean!

No, seriously, even Gym Jordan has to be looking at this next bit and shaking his head (in private, anyway)

Oh. Oh, this time is different? Why? Because the particular law that you'd like to apply but Section 230 preempts is 124 years old?

Oh, yeah, makes sense. That's, that's totally relevant.

I'll be honest, I had completely forgotten the "unless the State law is very old" exception to the Constitution's supremacy clause.

Which is sad, because it also makes total logical sense. Federal law trumps state law, unless the state law is old.

Seriously, guys, what the fuck?

Like ... what even is this? THESE state laws can't be preempted because they regulate speech? How could preemption of a state law that grants greater rights than the 1A does ever be a 1A issue?

No, seriously, someone explain this to me. Assume the 1A doesn't protect saying "cats are better than puppies" (it doesn't protect false statements, after all). Then assume some insane state passes a law saying "you can't be liable for claiming cats are better than puppies"

Congress, righteously and justifiably outraged, passes a federal law creating a tort claim for the emotional harm suffered by people who are subjected to this type of erroneous claim.

Again, remember that in our hypothetical world, this is totally allowed by the First Amendment. California went above and beyond the 1A with it's "you can slander dogs" law, and Congress says "no you fucking can't"

Suddenly that's a first amendment problem? How? How?

BRB, just gonna read this Supreme Court case they think makes this all make sense

OK, let's talk Railway v. Hanson. In 1951, Congress wrote a law that allowed unions to enter into "Union Shop" agreements with railroads - meaning the collective bargaining agreement could require every employee to join the union - despite any state laws to the contrary

Some Nebraska-based employees sued under the right-to-work provision of the Nebraska constitution, which was preempted, and argued that the Union Shop law unconstitutionally violated their first amendment rights

There was some argument that they were really suing over the contract requiring them to join the union, and the Court held that because the only way that contract was legal was under the federal law, they had a right to challenge whether the federal law itself could survive.

With me so far?

OK. Want to guess what the Court held on the 1A issue itself?

All good. There was never a federal right to not have a union shop to begin with, so it wasn't a Constitutional issue for Congress to require states to allow it and preempt contrary state law.

y'all, this is there best case, and it's the one that says "Congress is free to preempt state laws that grant rights beyond what the Constitution requires"

Or, to translate that to practical terms

OK, we're about to segue into bog standard "Clarence Thomas is right on 230!" nonsense and my back is seriously killing me. Gonna pick this up in the AM

Ok, there are a couple of things wrong with this. First, how in the world does Thomas's length of service add anything to your complaint? Second (and this goes for the Railway cite earlier, too), why are you briefing a response to a motion to dismiss here?

Legal argument does not belong in a complaint unless you think you can forestall a motion to dismiss by making such a clear and compelling case for why the claim is justified that it's worth breaking down. That's, uh, obviously not happening here.

Because these folks very obviously haven't read what Thomas actually wrote in his concurrence in Knight.

Here are some key excerpts of Thomas's opinion in Knight.

To recap: (1) He agrees that the court shouldn't take cases alleging Twitter violated the first amendment; (2) reaffirms that Twitter isn't a public forum & has authority to boot whoever it wants to; & (3) EXPRESSLY says

that government officials are free to ask private businesses to eject "pesky patrons" so long as the decision is ultimately in the hands of the private business itself.

Now think about what Berenson is arguing here.

But but but common carrier!

Here's what Thomas has to say. Note the common theme?

The legislature COULD choose to pass laws making Twitter a common carrier or public accommodation, requiring Twitter to host nazis and pedophiles etc. But it hasn't

Don't get me wrong, I think Thomas's concurrence was dangerous and wrong on the law. Companies have first Amendment rights not to want to promote the messages of, say, people advocating for lowering the age of consent to 8 years old, & there's no compelling reason to change that

But what Thomas was doing was laying out a path for a future right wing Congress & President to pass a law prohibiting Twitter from banning neo-nazis and pro-pedophilia advocacy, NOT suggesting the current law requires it

(As a true aside: that description is not hyperbole and it's not a straw man. If you want to regulate Twitter as a common carrier & prohibit it from viewpoint discrimination, you'll need to require it to carry EVERY legal viewpoint. And that includes neo-nazis and MAP advocacy.

A law that tried to limit the subject matter any further than "everything legal" would itself violate the First Amendment by discriminating on the basis of viewpoint. So any time you see a right-winger arguing that Twitter shouldn't be allowed to ban on the basis of viewpoint...

just understand that what they're ACTUALLY advocating for (whether they know it or not) is requiring Twitter to platform literal neo-nazis and literal pedophilia advocacy).

1) LOL, no you don't

2) I can't tell you how shocked I am that Alex-fucking-Berenson can't distinguish between causation and correlation

3) Remember all that stuff Thomas wrote about the government being allowed to ask, just not to threaten?

Yellow highlight: True! Shame you don't have a viable contract type claim, given the terms of, you know, your actual contract with Twitter

Blue highlight: Shirley you can't be serious

Yellow highlight: No, it doesn't.

Green highlight: No. Any other easy-to-answer questions?

Blue highlight: Hey, guys, did you know that before February 2020, there were no claims that Twitter was discriminating on the basis of viewpoint?

OK, gotta take a break to do some client work, but we've finished the intro and when we come back after this intermission, we'll jump ahead to Par. 22 and, I shit you not, "Twitter and the Telegraph"

See?

Not going to quote this entire history of the telegraph and Twitter's market power. But basically "Twitter is big, and also Congress regulated the telegraph"

The point of this section is mainly "so Congress can force Twitter to carry tweets if it wants to" which, number one, there are some fundamentally relevant differences between "Twitter" and "the Telegraph" ...

... among them that "the telegraph" was a thing, not an entity and also how messages are conveyed by telegraph and hosted by twitter are completely different, but more fundamentally,

I mean until Congress gets around to forcing Twitter to carry pro-pedophilia advocacy like you want them to, this is all academic. They regulated the telegraph. They haven't done the same for twitter. Case closed.

come the fuck on

Not even gonna go after the typo here. Red Lion has nothing to do with anything. Good God, people!

The entire rationale for upholding the fairness doctrine was that since the government *had* to be the one to license the limited broadcast spectrum, it could condition that

license on terms that might otherwise infringe the First Amendment

Note the "this isn't comparable to the right to speak, write, or publish" part.

Literally nothing about Red Lion has any conceivable application to Twitter (or Fox News, people)

As for the reference to the Associated Press case, it is, if anything, even dumber

In the AP case, the AP challenged the application of antitrust laws to an AP bylaw that allowed existing AP members to essentially veto any local competitor from also joining the AP and getting access to AP reports. Pretty straightforward, right?

Well, the AP argued that it had a first amendment right to engage in monopolistic behavior - after all, it was in the business of distributing news, so the government couldn't tell them how to go about doing that

To which SCOTUS responded

The First Amendment stops Congress from impeding the flow of information. It doesn't stop Congress from prohibiting a monopoly from doing the same thing. Stop it.

To take THAT quote, from THAT case, and use it as support for the argument that Congress can force a private entity to display messages it doesn't want to display takes a pan-galactic level of shamelessness

OK, moving on. They then repeat the Clarence Thomas stuff and go "aha! California says Twitter is a common carrier"

Guys, if you know market power is irrelevant why did you spend so long talking about it?

Gimme a minute to read the cases they cited in their brie- complaint, this is a complaint - and I'll be back. Because my gut is screaming

You'll all be surprised to hear that the argument that Twitter is a common carrier under California law appears to have been made with Berenson's usual intellectual rigor (i.e. none unless you count "mortis")

Let's be crystal clear about this. Whatever California law says is irrelevant, because Congress passed a federal law that says Twitter gets to moderate content, which means that any contrary state law can't apply. But even if that weren't true, they're just flat wrong

Here's the relevant California law. The argument fails at the first gate; Twitter doesn't "convey messages from one place to another"; it stores them and allows people to view them from wherever they are.

But it also fails at the second gate, because Twitter doesn't ...

"offer to the public" that it will convey messages, at least not in the sense that California's statute means.

Here's the California Supreme Court explaining, in 1956, what it means to be a "common carrier". Can you see the problem for our Berenstain Bears reject?

Twitter very specifically *doesn't* offer to "carry" for all comers, "indifferently"; you need to sign up for an account, when you do you need to agree to a contract, and that contract says they can kick you out if they don't like the content of your messages or for any reason

So (and setting aside the part where they don't get paid, either, and assuming they "carry" at all), they aren't a common carrier; they're a "private carrier" who takes on a large number of contracts. Either that, or the relevant "goods" are "those messages Twitter is ok with"...

in which case you've got no claim anyway.

LOL, now they're citing a case that holds that roller coasters are common carriers in California, because of course they are.

Seriously, this doesn't add anything to your case. Yes, roller coasters, in a park people pay to attend so they can ride them, are "carrying people for hire" in California. Now apply that here?

Do people pay Twitter for their service? No.
Do messages on Twitter go from one place to another? No.
Does Twitter make its service available to anyone willing to pay, regardless of content? No.

How does this help you?

Here's their argument. It just ignores that Twitter doesn't charge a fee, and completely leaps over the point that Twitter does not allow anyone to use their services without agreeing to TOS that allow Twitter to boot them for any reason

Also, check out the "conditions" Uber was referencing: "only people with the app can use us"

As the court explained in that case, "who cares?"

BRB

Back. This is what "begging the question" means. The fact that Twitter expressly reserves for itself the right to refuse service to anyone at any time for any reason, and has you agree to that by contract, means it's not a common carrier even under Cali law.

And oh no, Pruneyard

Fine, let's talk about Pruneyard.

Pruneyard is, without a doubt, the most over-relied on and wrongly understood case of the right wing freezepeach movement, the one that thinks that private companies can't stop you from neo-nazi recruitment on their platforms but ALSO that government can ban drag queen story hour

Pruneyard came up in the context of the California state constitution, which has a different "free speech" clause than the US constitution, and which California courts have held is *broader* than the 1A free speech rights

Relying on a line of *California* cases holding that shopping centers were sufficiently public that California free speech rights applied there, the California Supreme Court held that the shopping center owner in Pruneyard could not bar peaceful, non-disruptive leafletting there

Pruneyard then appealed to SCOTUS, arguing that the California law: (1) was an unlawful deprivation of his private property rights (rejected, and irrelevant) and (2) that he had a first amendment right not to have his property used as a forum for speech for others

SCOTUS disagreed. This, of course, is why the case comes up so often: If a shopping center owner doesn't have a first amendment right not to host speech he dislikes, Twitter doesn't either.

Right?

Well, let's take a look

Note what the Supreme Court said mattered in Pruneyard

1) The shopping center was open to the public to come and go as they pleased. That's not the case for Twitter, where access to post is contingent on your agreeing to Twitter's content restrictions.

2) One obvious consequence of this is that Twitter is *absolutely* associated with the type of content it chooses to permit. There's a reason "just ban the Nazis, Jack" is such a common complaint

3) Twitter, like the newspaper in Tornillo and *unlike* the shopping center in Pruneyard, exists only and entirely to engage in (or facilitate) communication. That's its entire business. Take away a newspaper's ability to determine what content to provide its readers, and it will

not have many readers left, in very short order. Take away Twitter's ability to moderate content and you quickly end up with the chans, or Gab, or any of the other "anything goes" forums that people don't particularly want to frequent

In other words, hosting speech the shopping mall owner doesn't want to host isn't inherently disruptive to the business; you're not going to lose shoppers because there's a polite table of zionists passing out leaflets (literally, that's what happened in Pruneyard)

A "Twitter must allow all speech, no matter the content" rule, on the other hand, would fundamentally destroy Twitter's business. These two circumstances are not meaningfully similar. You can't get from Pruneyard to "so no 1A issue in forcing social media companies to host nazis"

And again, I'm using nazis deliberately here. If you want to get up in arms about the fact that Alex Berenson isn't literally a nazi, feel free - but only if you can articulate a constitutionally viable rule that says "all comers except nazis"

TFW you accidentally distinguish your own case

BTW, we're now full on into briefing as the complaint (no joke) takes up a potential Dormant Commerce Clause argument against enforcing California's common carrier rules against twitter (and it's not a DORMANT commerce clause issue when Congress expressly regulated it, idiots)

Seriously, no, there's no dormant commerce clause problem here; Twitter is headquartered in California and therefore has to follow California law. There's a supremacy clause problem; Congress said online sites can moderate content and ban users. State law to the contrary is gone

So of course, now we get to Section 230, and a tour of the legislative history ... none of which matters.

But if it did, here's Rep. Cox, writing in August 2020, on what the law was intended to do jolt.richmond.edu/2020/08/27/the…

They're really desperately trying to make 230 just about porn. It's not all about porn, guys!

But here's the rub. That's not what 230 does.

Usually when we talk about 230, we talk about c(1), which is the "Twitter isn't liable for my defamatory tweet" section. But Berenson is screwed by c(2), which is "or for moderating your ass" section

Dear lawyers following this thread: how high would you have to be to write this paragraph in a filing of yours?

Seriously.

"Congress also expressly provided that Section 230 preempts contrary state law. But on the other hand, they wrote that the Telecommunications Act only preempts state law when they expressly say it does (like they do in 230)"

Oh no, I deployed that gif too soon!

Seriously, this is their follow up.

Side-by-side with the part of Section 230 that EXPRESSLY says the words "whether or not such material is constitutionally protected"

That they quoted LITERALLY 2 paragraphs ago.

Wait, you're citing a 9th Circuit case that says "yeah, they can block and ban you, that's 100% immune under 230" ... and QUOTING that language ... as if it helps you?

(Non-lawyers: the court they filed in MUST follow the 9th Circuit's precedent)

Can someone please do a welfare check on Berenson's lawyers? They obviously suffered an aneurysm while drafting this Briefomplaint

Right right right. OK. OK. Sure, the 9th Circuit held "yeah, moderation is immunized" but nobody specifically raised THIS preempted state law, they all argued DIFFERENT state laws (which were preempted).

And if Congress wanted to make Section 230 preempt contrary state law, they needed to be exceedingly clear - definitely clearer than just saying "no contrary state law can be enforced"

OK, saying it out loud like that I can see why you'd be skeptical, but hear me out.

Did Congress say "Alex M. Berenson can't sue Twitter for common carrier liability for moderating his Covid-19 posts" when it passed 230 in the 90s?

Court, I submit to you that if Twitter didn't exist in 1996, and Alex Berenson was not yet a Covid disinfo peddler, then Congress couldn't have stripped him of his right to sue then. It's a bill of attainder! Propensity evidence! Linear fucking time!

OK, this is a good time for a break while I deal with work and life stuff. May be back to this this evening, maybe tomorrow. Keep an eye out

Y'all, Alex has found the thread and he is very definitely Not Mad about it. And also Twitter apparently has legal multiple personality disorder

OK, we can do a bit more tonight. THIS is actually true. If a social media company makes an enforceable promise to you, and breaks it, you can sue them - even if it's about content moderation.

The Barnes case is a perfect example of this. Barnes's ex-boyfriend, in classic "abusive whole man dumpster guy" fashion, created yahoo profiles for her that posted her nudes, doxed her, and directed strangers to contact her for sex. She was suddenly getting calls, emails, visits

from strangers who were expecting her to fuck them, because "she" had told them she would and asked them to come by.

Ludicrously unsafe and criminal. So she went through Yahoo's takedown process ... and they did nothing. She got media involved, and suddenly Yahoo's ...

Director of Communications called her and said "fax me your info again, I will personally walk it to the people who will take down these fake profiles and make sure it happens"

So she did. And stopped pressuring Yahoo. And waited 2 months. And. They. Did. Nothing.

So she sued

The court dismissed the bulk of her claims under Section 230 - even leaving abusive profiles up that Yahoo knew were fake couldn't trigger liability. But the promise to take them down, and then not doing it? That could possibly be a contract. So that one got to discovery

In Enigma, the plaintiff alleged that Malwarebytes was blocking its software as a way to keep a competitor antivirus out of customer hands.

The 9th Circuit wrote: "providers do not have unfettered discretion to declare online content 'objectionable' and blocking and filtering decisions that are driven by anticompetitive animus" are not protected by 230.

I'm not sure how Berenson gets from that to "certain commercial torts," though

But one paragraph of mostly solid discussion of the law (and reminder, NONE of this belongs in a Complaint at all) is more than enough, so we're back to the nonsense now.

No. Just no. It doesn't "present First Amendment challenges of its own" for Congress to preempt state laws that give speakers greater rights than the First Amendment does. If 230 has a 1A problem, it has it no matter what any state does or doesn't do.

And it doesn't.

Court after court has rejected the argument that Congress violated the 1A by enacting 230. For good reason. There's no 1A right to post to a website that the owner doesn't want you to post on.

This is just a legally illiterate reading of Railway v. Hanson, which we discussed upthread. As SCOTUS said there, the fact that a state gives people rights beyond those required by the Constitution doesn't mean Congress can't regulate in a way that impacts those rights

Exactly the opposite, in fact. The Supremacy Clause of the Constitution expressly says that Congress's enactments trump state constitutional provisions. So it can never be unconstitutional for Congress to do so.

This isn't complicated. Congress can't pass laws that infringe on rights guaranteed by the Constitution. But it is *expressly* authorized to pass laws that infringe on rights not guaranteed by the US Constitution, but protected under a state constitution.

What Berenson is really arguing here is that it's bad policy, inconsistent with the spirit of freedom of speech. He's wrong, for reasons we've discussed in other places (like the below). But that's an "ought" argument, not an "is" argument.

https://twitter.com/AkivaMCohen/status/1413185558281703429

I cannot even begin to tell you how ludicrous it is to be FIFTY NINE paragraphs and TWENTY TWO pages into a complaint and only now be getting to the factual background

Quick litigation basics tutorial, and then we'll call it a night

Lawsuits in federal court are governed by the Federal Rules of Civil Procedure. They set out things like how to start a case, serve papers, what time limits apply, how to conduct discovery, ask the court for things (motions), etc.

The rule that talks about what a complaint should be is Rule 8. Here's what it says:

Complaints have 3 basic components:
1) A description of who the parties are and why they are in this court
2) The various causes of action (legal theories) you're claiming entitle you to relief
3) The underlying facts that, if proven, would mean you win on your legal claims

There's room for rhetoric, of course; most complaints will have an introductory section giving a high-level overview of the case, before diving into the nitty-gritty.

But this isn't a novel. Your job is to provide a "short and plain" statement of why you think you should win

So that your opposing party knows why they are being sued, what your legal theories are, and what facts are at issue.

That's it.

That doesn't mean all complaints need to be 50 paragraphs or less; some cases have complex factual backgrounds that you need to allege, and some have lots of different legal theories that come out of the same facts (you violated 6 different duties to me and 4 state laws ...)

The team and I recently filed a 35-page, 300+ paragraph federal complaint alleging RICO violations (yes, really, this time it was the RICO, amazingly enough) and 7 other causes of action.

Kick-ass complaint, fun to write, well supported. The intro was 9 paragraphs long.

(Full disclosure: Our "factual background" section started at Par. 43, because there were so many named defendants that the parties and jurisdiction sections ran long)

Seriously, though, you know what isn't mentioned in Rule 8? Legal argument and discussion of relevant cases.

Because the complaint is NOT where that belongs. 59 paragraphs, of which 28 (pars. 22-59) are completely useless. AYFKM?

That, in and of itself, is a mark of incompetent lawyering.

And with that, I'll leave it here for the night, and we can start talking about the actual fact allegations tomorrow.

There's really nothing that explains Alex Berenson & why he's suing better than this. Yes, he's absolutely terrible at understanding statistics & spreading false information - his latest calls Omicron a cold and anyone who vaccinates "worse than a fool". This is his job now.

Just going to drop a few more on this pandemic that's "over" and variant that's "just a cold"

But Berenson is selling to his audience. He went from 7k follows to 6-figures and a national profile on the back of this. He's not going to stop; he needs it.

We're then treated to a recap of Berenson's history on Twitter, from his perspective, and with an emphasis on Twitter not labeling various tweets of his. It's basically a client-service section

This is an excellent summary and reference, Eric

https://twitter.com/FrozenEric/status/1473997302104834049

There's a LOT going on here, so lets break this down.

1) Twitter says it doesn't "forecast" censorship or "intend" to limit good faith discussion, but would be "addressing" content that goes against "authoritative sources"

Notice those future looking words? Twitter was commenting on its then-current intent on how to address Covid discussions. But it was already saying that it would be relying on undefined "authoritative sources" to guide its approach ... meaning it would be subjective, based on ...

Twitter's best judgment of what was "authoritative" and what wasn't and its best judgment of what was contrary to those sources - all decisions to be reached in consultation with governments and medical experts

And it noted that it had removed tweets already (i.e. censored) and would "prioritize" removing tweets with calls to action, but "couldn't" address "every" Tweet that "contains incomplete or disputed" Covid info

More, Twitter made clear that its standard for what to remove was going to be, effectively, "do we think this is harmful content". Yes, it gave a list of examples. But nothing in that blog post said "this is the only content we'll be removing" or "and we'll never grow this list"

And, in fact, Twitter quickly updated its policy again. Now, it was going to be making subjective determinations about "severe" harm vs. "moderate" harm and what information was "authoritative" and acting accordingly

Amazingly, Berenson didn't include the most important part of the blog, which was (in an enormous self-inflicted wound by Twitter) Twitter expressly representing that it would not be removing even severely harmful disputed or unverified information - only "misleading" info

I ... it's hard for me to imagine that Twitter didn't consult with its in-house legal team before putting out this blog post but it's also hard for me to imagine an in-house legal team approving that language. Yes, it says they're open to adjusting. But ...

"we won't be taking any action on this category of material" and "we're only going to issue a warning label on this category of material, not delete it" are the type of promises that can absolutely induce user reliance and get a claim past a motion to dismiss.

Seriously. All they had to do was add "this is an evolving situation and we may decide to remove or ban users for some of this in the future as the situation warrants, but this is our current plan" and they'd have avoided that.

This is all good stuff for Alex. Yes, Dorsey follows nearly 5k people, which means he wasn't going to see every one of Berenson's tweets. But a follow decision means Dorsey saw at least some and said "this looks like a worthwhile person to monitor or listen to" ...

It's effective confirmation, at least at the motion to dismiss stage and until Dorsey testifies otherwise, that Twitter had actual knowledge of the content he was tweeting to that point. As is the reach-out from the PR exec.

Also, it's the type of thing that would support a

notice to take Dorsey's deposition, personally. I can't tell you how incredibly rare that is; you need to be able to allege that the CEO of the company you're suing has some unique personal knowledge relevant to your case. They've got that here, and that's leverage

Some problems for Alex here, though. Borman saying "we're less likely to act on something about whether masks are effective" isn't a promise that Twitter won't act on it. It's an estimate of the likelihood of future conduct. That's not an enforceable promise

I mean ... they publicly announced that they were actively removing this, and you're going to argue you reasonably relied on a PR guy saying they were "less likely" to target it?

And then this. Again, "I don't expect X to happen, but if it does, call me" is not "I promise X won't happen" - especially when communicated by a PR guy, not someone on the team making those decisions.

And Par. 86 is not a thing.

Not only can't you just assume that someone communicated with counsel, it doesn't matter whether they did or not.

OK, break time, I'll be back

No. 1, none of this is actionable. Recall that California requires an EXPRESS and UNAMBIGUOUS promise to support a promissory estoppel claim. Borman saying "I don't expect major changes but if there are let me know" is not that.

I'm also really pleased with "if not for this May 12, 2020 email I would have spent time writing books. In June 2020, I released my first [implying, of course, of many] booklet for sale on Amazon"

And, of course, the farther in time you get from "I don't expect any major changes" the less relevant that statement becomes. You were banned in July 2021! Why are you talking about an email from May 2020??

Anyway, he's now alleging that Twitter acted exactly as he was told it would through November 2020, when he was still banging the drum for people to ignore public health experts, and still has no idea what a "promise" looks like

The problem, of course, is that "you did what you said you would" is not a cause of action, and he's now affirmatively pleading that any damage he suffered from a later change of position can only be assessed from the date of that change. He's kneecapped his own claim

He then alleges that in November 2020, the facts in the world changed in a specific and highly relevant way, which is definitely good for a promissory estoppel claim based on Spring 2020 blog posts and emails and I'm not being sarcastic about that at all

Seriously: "Twitter announced a policy in Spring 2020 and also told me, personally, that they didn't expect major changes. In November 2020, things changed, and in December 2020 they announced a significant change to their policy" is NOT a good paragraph in an estoppel complaint

Oh, hey, and they ALSO updated their policy to say they'd remove false and misleading information about the effectiveness of PPE

Again, all of this definitively makes anything before December 2020 completely irrelevant to his estoppel claim

So this becomes the basis of his new estoppel claim. But look, anyone can see that there's an absolute tension between these two policies, one that can be resolved ONLY by Twitter exercising subjective judgment on what is false or misleading

And Twitter expressly told you what sources of information it would be relying on as it made those judgments: the ones you were contradicting

In other words, if you didn't understand that tweeting out information as "fact" that public health authorities were saying was false might bring you within the "delete/ban" policy, that's a you issue, not a them issue, my friend

BY THE WAY: "if the government tells us it's false we're going to delete it and potentially ban you" is a TERRIBLE policy metric for Twitter to choose, one with a whole hell of a lot of negative externalities.

And the reality is more nuanced than that. But even if that was the whole of the policy, terrible as it would be: Twitter is a private actor! Private actors are free to choose terrible policy!

For example, @SubstackInc allows people to put out actively false and dangerously harmful shit like this

Note also that what Berenson is putting out into the world today ("Covid is a cold, don't get vaccinated") is almost word-for-word lifted from Twitter's announced policies on "things we will yeet you into the sun for saying on our platform"

And note especially the dramatic tonal shift from what he was tweeting in November and December.

Of course, Borrman pops up again (and that dude is, I promise you, having some interesting conversations with in-house and outside counsel this holiday season).

But again, "should not" is not a promise, especially when coupled with "if you run into any issues"

And also, note both that Berenson made representations to Borrman about the content of his tweets ("comes from the clinical data") and that he again alleges "and Twitter did what it said"

Also, the idea that Twitter made any meaningful money off of Alex Berenson is absolutely ludicrous. What percentage of users does he think abandoned Twitter once he was banned from the platform?

And hey, in March 2021, Twitter updates its policy AGAIN

It's worth looking at the actual policy for a second. Here's what Twitter says.

Again, some of this is unforced error territory ("must"). But this is all based on Twitter's judgment of what is and isn't "debunked" and that last one could just have been labeled "Berensonism"

And here's how the policy works:

Anything really bad will have them delete tweets or lock your account, and counts as 2 strikes.

Labeling gets you one strike.

Key part is in the next tweet

If Twitter thinks your account is "dedicated to" a misleading Covid narrative, it will ban you no matter how many strikes you get.

If it thinks your violation was "severe" it will ban you no matter how many strikes you get.

If you just do low level stuff, but do it a lot ...

it will go through an escalating series of temp bans before permanently suspending you

Now let's see how Berenson's complaint describes this new policy

1) He leaves out any reference to the "severe or dedicated gets you booted no matter how many strikes you have"

2) He misunderstands "five strikes" as "five bad tweets"

I know what you're thinking. Berenson? Drawing obviously incorrect conclusions from data and then confidently asserting his wrongness to be true?

Side note: Why is there no standalone Ralph Wiggum gif that just says "that's unpossible"? There should be one.

Of course, Berenson goes running back to Borrman - as he should, *because each new policy Twitter announces completely eradicates the usefulness of anything Berenson was told about how the other policies would apply*

This time, Borrman (to his credit) says nothing that could even remotely be in the neighborhood of an enforceable promise

Seriously: these two paragraphs, standing alone, require the dismissal of Berenson's promissory estoppel case.

Twitter updates its policy, which Berenson understood they could always do. He recognizes that this time, what he does on Twitter is arguably covered by the new policy

That's evidenced by the fact that he reaches out again. And this time, all Borrman says is "your name didn't specifically come up" (not a promise) and "I'll TRY to give you a heads up but I don't always know so it may happen without that" (not a promise)

Short of an allegation that Borrman had specific knowledge that Twitter Safety was going to target Berenson, and opted not to tell him (which is a fact Berenson has no way to allege), there's no claim based on any of this. None.

So Berenson next does an admirable job of pleading that his account was actually dedicated to pushing a Covid narrative, information about PPE that was contrary to public health guidance, and disinfo about vaccine efficacy, because he is focused on "five strikes"

And, of course, Twitter in fact labelled 5 of his tweets as misleading. But because (1) he's a doofus and (2) completely misread the "five strikes" policy, Berenson decided to assume it was a mistake

Seriously ... Berenson seems to think "we'll notify you if we lock you out of your account temporarily" means "we'll notify you whenever we count a tweet as a strike". Oops.

And yes, I've pretty much mentally identified Berenson as Ralph. Less sweet, roughly as competent

Oh holy shit

This is fucking amazing, I'm sorry.

Presented without comment so you can drink it in.

No, not the "if you didn't suspend me it couldn't have been a strike, I can't read English" part. The next bit.

"If you didn't catch a particular piece of Covid disinformation I tweeted, or suspend me for something you labeled, you can never take any action against me for doing it again" is an In re Gondor level waiver argument

I mean, that's not how waiver works in the first place - it has to be an INTENTIONAL relinquishment of a known right - but you and Twitter have an actual, honest-to-God contract that says "our failure to enforce a rule is never a waiver"

So "they didn't suspend me for X, that means they can never suspended me for anything like X" can never ever be a valid argument.

Just gonna drop the video of the comment Berenson is referencing here; he literally says that the government was hoping to "sucker" 90% of the population into vaccinating and younger people 'know better' (go to 17:15

c-span.org/video/?513283-…

And now we're into the section that says "if the government says that they hope private entities will take action that the government wants, that makes it state action"

Even when the government says "but it's their call"

Remember that Clarence Thomas concurrence in Knight?

Also, you can't just allege anything you want "on information and belief".

"I think the government flagged my tweets to Twitter" is not a basis for a 1A claim.

And here it is again. "On information and belief, the government said ban Berenson" does not work.

Also, remember that whole Section 230 thing you were attacking earlier? That's also the reason the government *couldn't* coerce social media platforms to do anything

Where was the threat, Alex?

Oh good, we're back to legal briefing. Good spot for a break

Here's the "joint action" test - you need to allege that the state took some unconstitutional action, and the private party acted as part of a conspiracy to accomplish that unconstitutional act, or that the private party and state were in a "symbiotic" relationship

(First image is from Fox; next two from the Gallagher case it cites)

None of these are even close to applicable; the state here didn't take any unconstitutional action for Twitter to join with, and there's no "symbiotic relationship"

And here's how SCOTUS articulated the "governmental nexus" test.

No the government saying "Twitter, we can't force you to but we'd really like you to ban Covid disinformation accounts, they're killing people" doesn't make Twitter saying "you know what, you're right" state action

"Twitter is a state actor" theorists:

And now comes the part of the Briefomplaint where Berenson's case really goes off the rails.

It's worth recapping the timeline:

Spring 20: Twitter announces how it's going to handle Covid disinformation. It then updates those rules. Berenson tweets that he's worried, and a Twitter PR exec says, effectively, "you should be fine and we don't expect major changes"

As a result, Berenson says, he chooses not to build up his presence on other platforms.

Also, he affirmatively alleges, Twitter does exactly what it said it would.

In November 20, the relevant world changes with the announcement of vaccines, and Berenson tweets that vaccines are good. In December 20, Twitter announces a new policy. Berenson again checks with Twitter PR and is told he should be fine. So he doesn't build up other places.

Again, he affirmatively alleges, Twitter did what it said it would.

On March 1, 2021, Twitter announces ANOTHER policy change, one Berenson grievously misunderstands. Almost immediately (March 15) it begins labelling some of his tweets as misinformation.

Berenson reaches out to his Twitter PR contact, who this time promises him effectively nothing: he says that as far as he knows Berenson hasn't specifically come up in discussions of the new police, and that he'd "try" to give Berenson a heads up if he hears about any enforcement

against Berenson, but can't make any promises because he's not necessarily going to know. This conversation happens on March 1. By May, after Twitter has identified multiple of his tweets as misinformation, Berenson is concerned and reaches out to Borrman again. This time, though

Borrman ghosts him - he says he'll "look into it" but there's no further response. The Briefomplaint doesn't identify exactly when this is, but it's at least June 21, b/c Berenson complains about labeling of late May tweets

At this point, the only thing remotely resembling a "promise" Alex has from Twitter is that *if* Borrman hears about a plan to enforce the rules against Alex, Borrman will "try" to give him a heads up. That's it

Back to the complaint. Berenson continues to whine that nobody personally emailed him to say "by the way, we're suspending you" or to "explain why" - neither of which are things Twitter does or has to do

He also seems to think that a violation of the Covid misinformation policy isn't a violation of the TOS, which, well ...

I mean, here's what the TOS says about that.

How many problems are there with this argument? Let's count

1) "Objective standard"? How many times have you *specifically pled in your complaint* that Twitter didn't identify what sources it considered "authoritative"? The policies - which you read, since you plead you complained about them - also indicated that Twitter would be the one

making determinations about what was and wasn't disinformation, in consultation with its chosen sources. There's no objective standard. Just "how Twitter thinks this works"

2) "No reservation of rights" - your argument seems to be that they were entitled to suspend you for no reason at all under the TOS, but that if there was a Covid reason it had to be under the Covid policy. OK. What's the harm to you? They could've just said "he's bad 4 business"

YOU would be just as suspended, and have no claim at all even in your crazy view of the world. So how are you harmed by the supposed breach of the policy?

3) How does any of this fit with your promissory estoppel claim? What meaningful difference would it have made to you if you'd gotten an email warning from Borrman right before the suspension?

4) How does this fit with your 1A claims. According to you, Twitter can't boot you based on the substance of your speech. But they can bounce you for any reason they like under the TOS. So again, what's your harm?

Now we get to the portion of the Briefomplaint where Berenson argues Twitter got it wrong and his tweets were fine, really.

Berenson still doesn't get that he can have two strikes from a single tweet; from the fact that he has a screenshot of this one, but not some of the others, I'm guessing this was a 2-strike, "you must delete" variety

Oh, honey, no. "The vaccines are failing" is a fact claim, presented as supported by data, and your ersatz waiver theory (whether based on Twitter not labelling the underlying tweet or your prior tweets) just doesn't work

See what I mean about the lack of identification? The ones he got notice of look like two-strike, "delete this shit now" tweets. This one is particularly nuts

This, btw, is what that study actually said; a 91% efficacy in reducing your chance of getting Covid self-evidently reduces your risk of *dying from Covid*

And the study doesn't talk about Covid deaths at all.

So where does our resident propagandist get his numbers?

From here.

Y'all, this isn't talking about Covid related deaths. This is just "anyone who died within the follow-up period, for any reason

In other words, if someone in the study had a heart attack, or got in a car accident, or died of old age, they were "withdrawn" for "death".

Berenson tweeted that out as "the Pfizer vaccine does ZERO to reduce your risk of death"

I mean, even for him this is some top quality disinformation. He took a study that says "the vaccine greatly reduces your risk of getting Covid" and turned it into "it doesn't impact your risk of dying generally"

I mean, my dude, unless you actually believe that taking the vaccine increases your risk of dying from non-Covid causes by the exact same amount it decreases your risk of dying from Covid, what the actual ever-loving fuck?

Like, holy fuck guy, THAT wasn't the problem with your tweet. Good God.

The final straw: tweeting that it's 'not a vaccine' and has a "terrible side effect profile"

Note also that this is a month later; by now Berenson knows for certain that he won't be getting any heads up from Borrman. So the MAXIMUM "reliance period" he can allege is...

about 2 months: from late May/early June to his first suspension in July.

And his only damage (even assuming that there's any claim at all, which there isn't) is whatever harm he "suffered" from Borrman not warning him of that first suspension between the moment Twitter decided to act and their actually acting

No, really, knowing in that nanosecond of time between decision and action would have been world-altering for Alex.

I'm not going to repost the entire anti-vax lunacy Berenson vomits into his complaint here. But my dude, there's no reasonable dispute that the vaccine *limits* risks of infection and transmission, which means, as a matter of simple fact, it's NOT just "a therapeutic"

That fuckheads like you want to pretend "completely eliminates risk of infection and transmission" and "useless" are binary options here, that's a lie. Fuck off.

He then points to a twitter rules update clarifying that it's not misinformation to say "vaccinated people can still spread the virus" and my dude, come the fuck on

Including? Including?! What the fuck were they supposed to do, label or delete only part of your misleading tweet?

You tweeted out that people shouldn't think of it as a vaccine, just a therapeutic (false, and dangerous), and implied taking it was stupid (false, and dangerous) because it had a "terrible side effect profile" (false, and dangerous).

And you think that including as the basis for that fucking lie the true fact that the vaccine does not provide 100% effective protection against infection or transmission should immunize all those falsehoods from consequences?

Although, tbh, you not understanding how immunizations work is sort of the origin story of this nonsense, so

Big "in this thread I will ..." energy from this paragraph here.

Also, no. You don't get to play this game, Alex, I'm sorry.

No, there was no representation.

No. Not getting prior notice didn't harm you.

No, "but I violated the rules before" doesn't make it ok.

No, "we didn't specifically mention your name when deciding policy" doesn't mean "so everything you tweeted before is fine under the policy"

Like, you're just not that important, friendo.

Oh

Oh no.

I just can't.

Yes, yes. Twitter's rules should be interpreted to mean that they can't label or delete tweets, or ban anyone, unless they can document a specific public health impact that actually ties to that specific tweet.

Also, banning you is no indication they disagree with your messages

You are very intelligent and these arguments are immensely persuasive. I withdraw my prior critiques. I hadn't thought of it that way, but obviously Twitter is perfectly fine with your messages, which makes their ban illegal.

Skipping the paragraph on how popular he was to get to what has to be the biggest WTF moment yet, which oh lordy is that saying something but dude. DUDE.

What even is this shit?

You ... and Twitter ... are competitors? You, with your 345K followers ON TWITTER, were competing WITH TWITTER?

Twitter banned you (and your 6-figure follower account) for competitive advantage in its competition with you?

No, seriously, I need someone to explain to me how even someone as mentally cracked as Berenson and his legal team apparently are thought this made internal sense.

You were acting *on Twitter*. If Twitter hadn't decided you were too dangerous to keep around, you'd still be acting on Twitter. In what conceivable way would it help Twitter compete (against you) to force you to a competing platform (instead of, again, Twitter)?

And in that glorious fashion, Berenson closes out the fact section of his Briefomplaint and we'll get to the causes of action when I get back

OK, #LitigationDisasterTourists, let's see if we can wrap this tonight

Oh come on, really?

Seriously, it's like these interdimensional clowns are in a competition to see how far beneath the floor they can set the bar.

He pled this as a Bivens action! Bivens!

The astute among you will have noticed the reference to "FBI agents" in one of the cases. That's because Bivens was a SCOTUS case that held that you can bring civil rights claims against *Federal officers* who act under color of law

Could someone please let me know which federal agency Berenson thinks Officer Twitter works for?

Yes, yes, I know, you're back on your state action bullshit.

You had no right to speak on this platform (none of us do)

Also, "I believe its a conspiracy" is LITERALLY the pleading SCOTUS tossed out in Twombly. This is a stone cold loser

Sure thing, bro.

No, seriously

What the crispy fried fuck is this?

Guys, you need to understand something. THIS is Section 43(a)(1)(B) of the Lanham Act (which is, essentially, the federal trademark statute).

WHERE'S THE "COMMERCIAL ADVERTISING OR PROMOTION"?

Like, forget the nonsense about how Berenson's tweets were really true, so Twitter is lying. Forget, also, that he previously said "it's just opinion, man" (meaning it can't be true or false). Unless it's in an advertisement or promotion, it's not "false ADVERTISING". Berenson:

No, I'm serious now, what "advertising or promotion"?

Look, this is pleading 101. You can't just look at the statute, see the elements of a claim, and generally say "it's there, I promise"

"Look, we didn't identify any advertisement or promotion, but we're saying it" =

And then this is just a fucking fever dream. The "zone of interests"? No, the Lanham act isn't about Twitter deciding you're a purveyor of misinformation they don't want on their platform. Anti-competitive? They chose to STOP BENEFITING FROM YOU being on their platform.

This doesn't even make internal sense if you squint really hard. It's just a completely stupid claim, start to finish. The type of thing you expect a good junior associate to come up with (good requires creativity; junior so the partner is there to say "no, we're not doing that")

OK, two down. What's next?

Oh, the common carrier nonsense. Don't need to screenshot this part again, its the same stupid garbage as before

Seriously, aside from everything else, the technical side of this dooms this case anyway; Twitter doesn't "carry" messages anywhere. The user's ISP sends them from the computer to Twitter's server, or from Twitter's server to the user's computer. The ISP does the "carrying"

And no, California can't regulate interstate commerce by designating social media companies as common carriers when Congress expressly says that those companies can refuse to serve users or content at their discretion. The entire thing is completely disconnected from the law

Then we swing around to California state unfair competition law, for a claim that's fucked for all the reasons that the Lanham act claim is: they're not competitors, it wasn't fraudulent, this is just dumb as a box of rocks

Yes, yes, the only options are "some objective test to determine what's true and false" and "Twitter is a liar".

"Twitter will use its judgment to determine what counts under its policy, in consultation with sources it trusts" is unpossible.

I mean, certainly the fact that Twitter repeatedly said "we're gonna use our best judgment in reliance on sources we think are authoritative" wouldn't have clued anyone of moderate intelligence that was an option.

Oh dear god. We're back to common carriers. But also, he's arguing that Congress can't regulate interstate commerce in a way that preempts state law if it impacts first amendment activity, which is just insane.

What dollar store degree did the braniac who came up with this one have?

No. Unfair competition is not a subspecies of "intellectual property".

There are 4 categories of IP: Copyrights, Trademarks, Patents, and Trade Secrets. That's it. law.georgetown.edu/your-life-care…

This is as basic as basic gets, and they're failing. And for no reason.

I mean, here's the Northern District of California (the court they're in) explaining straight out that this is a loser argument, just a few months ago

Next we have breach of contract, in which Berenson just keeps fucking that chicken on the argument that the rules require some objective determinant beyond "in Twitter's judgment"

Also ... right, the liability waiver. That too 😂😂

Next we have the promissory estoppel claim; we've talked about this nonsense enough, and the thread is long enough as it is

Next: Pruneyard, but for social media! (despite their contractual and statutory right to ban and delete content)

And then, the pandemic's wrongest man winds up with, appropriately, the world's dumbest unjust enrichment claim

The theory of this appears to be "well, if I was violating your rules you should have banned me sooner" to which I say:

1) Fuck Yes

&

2) In what misbegotten universe would that mean YOU would be entitled to "restitution"

All Twitter did was take you from an incompetent gadfly with a limited following to an incompetent edgelord gadfly with a massive following.

If anyone is owed restitution here for that horror show, it's the rest of us

Seriously, what's the theory here? Twitter earned some unidentifiable amount of money on account of not banning you quickly enough, and that money should therefore go to you because ...

I mean, this is a bit, right? Even you and your band of incompetent knock-off muppet lawyers have to know that's not a thing, don't you?

And that takes us to the request for relief, which is "put me back on Twitter, make them pay me, and a puppy and a glitter-farting unicorn"

As others have said, expect Berenson to fundraise off this; it's the only thing that makes any sense at all.

And with that I am, finally, done.