from the still-not-how-any-of-this-works dept
Back in December we wrote about just how absolutely, pathetically ridiculous Alex Berenson’s lawsuit against Twitter was. As you’ll recall, Berenson, who has accurately been described as the “pandemic’s wrongest man“, got kicked off Twitter after posting a non-stop stream of utter nonsense, completely misinterpreting vaccine data in ways that weren’t just embarrassing but that likely were causing people to die. The lawsuit against Twitter trotted out a number of laughable theories, including that it violated the 1st Amendment to kick him off, and that it was “unfair competition” and a “breach of contract” among other things. We went through how laughable all of these were, but didn’t spend that much time on it because, really, there’s only so much time one should waste on such things.
There have been a bunch of filings back and forth in the lawsuit, with each of Berenson’s more ridiculous than the previous one, but we didn’t write about them because we were waiting for the judge to rule. Of course, last Wednesday night Berenson went on Fox News, natch, to tell the heir of a frozen food fortune that “our lawsuit, I think, is stronger than a lot of other lawsuits that have not survived the motion-to-dismiss stage.”
Two days later, Judge William Alsup (not known for putting up with very much bullshit) has dismissed nearly all of the lawsuit. Of course, one tiny bit of it has survived, just barely (and not for long), so in this way I guess Berenson actually got one thing right. His lawsuit is just ever so slightly “stronger” than a lot of other lawsuits. But not really.
Alsup has dismissed all of the speech arguments: the 1st Amendment claims, the unfair competition claims, etc, and did so incredibly easily by pointing to Section 230 and noting that Berenson has no claim here, despite his earlier confidence that his lawsuit was somehow “different.” It wasn’t. It’s worth noting that Alsup dismisses under 230(c)(2), which is a bit surprising, since most of these kinds of cases just point to (c)(1) and are done with it. As a refresher, (c)(1) is the part that says you can’t hold a website liable for someone else’s content, while (c)(2) is the more awkwardly worded part about no liability for “good faith” moderation actions. Many, many courts have realized, correctly, that (c)(2) barely matters in the face of (c)(1), because even if you had bad faith moderation, the website would still be immune because any liability would be based on the user’s content.
But here, Alsup notes that even under (c)(2) Berenson has no argument at all:
For an internet platform like Twitter, Section 230 precludes liability for removing content and preventing content from being posted that the platform finds would cause its users harm, such as misinformation regarding COVID-19. Plaintiff’s allegations regarding the leadup to his account suspension do not provide a sufficient factual underpinning for his conclusion Twitter lacked good faith. Twitter constructed a robust five-strike COVID-19 misinformation policy and, even if it applied those strikes in error, that alone would not show bad faith. Rather, the allegations are consistent with Twitter’s good faith effort to respond to clearly objectionable content posted by users on its platform
That’s it. That forecloses the core of the lawsuit. There isn’t that much discussion about it , because there doesn’t need to be. Alsup also completely trashes the specific 1st Amendment claim:
Aside from Section 230, plaintiff fails to even state a First Amendment claim. The free speech clause only prohibits government abridgement of speech — plaintiff concedes Twitter is a private company (Compl. ¶15). Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Twitter’s actions here, moreover, do not constitute state action under the joint action test because the combination of (1) the shift in Twitter’s enforcement position, and (2) general cajoling from various federal officials regarding misinformation on social media platforms do not plausibly assert Twitter conspired or was otherwise a willful participant in government action. See Heineke v. Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir. 2020). For the same reasons, plaintiff has not alleged state action under the governmental nexus test
either, which is generally subsumed by the joint action test. Naoko Ohno v. Yuko Yasuma, 723 F.3d 984, 995 n.13 (9th Cir. 2013). Twitter “may be a paradigmatic public square on the Internet, but it is not transformed into a state actor solely by providing a forum for speech.” Prager Univ. v. Google LLC, 951 F.3d 991, 997 (9th Cir. 2020) (cleaned up, quotation omitted).
The Lanham Act claims? Also dismissed in a single paragraph:
Aside from Section 230, the Lanham Act claim also fails anyway. The Lanham Act “prohibits any person from misrepresenting her or another person’s goods or services in ‘commercial advertising or promotion.’” Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1114–15 (9th Cir. 2021) (quoting 15 U.S.C. § 1125(a)(1)(B)). Neither Twitter’s labelling of plaintiff’s tweets, nor its statement regarding the suspension of his account plausibly propose a commercial transaction. See United States v. United Foods, Inc., 533 U.S. 405, 409 (2001). They are not advertisements, nor do they refer to a particular product, and the theory that Twitter’s statements were made in the context in which plaintiff offers his services is too attenuated. See Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citation omitted). Applying common sense, this order concludes Twitter’s warning labels and suspension notice constitute non-commercial speech aimed instead at promoting the veracity of tweets regarding COVID-19
Judge Alsup notes it’s not even worth going into Berenson’s laughable claims that Twitter is a common carrier under the California Constitution (it’s not) because Section 230 takes care of that anyway.
There are two claims that live on, though it’s unlikely they’ll last for very long. But let’s dig in on those two claims. They are part of his “breach of contract” claims and the “promissory estoppel” claim. These are all really based on a case that we’ve talked about before, one from about a decade ago, Barnes v. Yahoo, in which someone was able to get around Section 230 because a Yahoo employee had promised that they would “take care of” the content that was being complained about. Based on that, the courts ruled that a direct promise had been made, and breaking that was effectively breaking a contract.
When the original lawsuit came out, I had initially written up an analysis of why Berenson’s situation was so different from Barnes that the similar claims in the lawsuit were unlikely to fly, but dropped it because it seemed like a lot of words to explain something that was unlikely to amount to much. However, here it lives on, although there’s ever indication that Alsup will do away with it shortly.
The issue is that the claims lean very, very heavily on some email exchanges Berenson had with a Twitter comms exec, in which the exec told Berenson he didn’t believe that his tweets were likely the target of policy changes, and that if he heard anything else he’d try to let him know, and said he’d try to make sure Berenson was “given a heads up” before anything happened. That’s not anything even remotely in the vicinity of a promise that the company would never take action on Berenson, so not at all like the Barnes scenario.
Either way Judge Alsup, in his standard methodical manner, allows for very, very limited discovery to establish whether or not there was any actual contract here that was breached, and any actual promises made that would trip the promissory estoppel flag. Twitter will have to cough up some details of how it flagged Berenson’s account, and how it determined he had hit the “five strikes” threshold to have the account suspended. It also needs to share some of its communications about Berenson and the termination of his account.
Two separate lawyers I spoke to with litigation experience said this appears to be Alsup being extremely thorough and just making sure there really isn’t some secret thing going on in Twitter, and that the company followed the necessary steps in banning Berenson.
Of course, many foolish people are celebrating. This includes Berenson, who is claiming an extremely premature victory on his Substack, saying that Twitter “is going to have a hella time slithering out of” these discovery demands which he (incorrectly) calls “broad.” In another post he still appears to be claiming that this is a “fight for free speech” even as all the free speech parts were dismissed without leave to amend. Also, because an editor at Politico incorrectly titled its piece on this ruling “Twitter loses bid to toss Alex Berenson lawsuit” with a subhead that “the free speech complaint against Twitter will be allowed to proceed.” (The article is actually good, but the headline and subhed are wrong).
The free speech parts of the lawsuit were all tossed. There’s only the issue of breach of contract and promissory estoppel here, and the judge is allowing narrow discovery on those issues just to see if there’s any smoking gun. If there isn’t, those two claims will get tossed as well. It is, of course, always possible that discovery will turn up some internal nonsense at Twitter, but this case is very much on the rocks.