- The Washington Times - Wednesday, December 22, 2021

Twitter kicked COVID contrarian Alex Berenson off its platform a month after President Biden declared that social media was “killing people” with pandemic misinformation — and the journalist doesn’t think that’s a coincidence.

Mr. Berenson this week filed a federal lawsuit against the tech giant, alleging First Amendment violations and saying that he has “a uniquely viable claim that Twitter acted on behalf of the federal government in censoring and barring him [from] its platform.”

“Despite the company’s prior assurances, and just hours after the President of the United States accused social media platforms of ‘killing people’ for not censoring speech about COVID-19 vaccines, the company locked Mr. Berenson out of his account,” the lawsuit states. “A month later, it permanently suspended him.”

Mr. Berenson, a prominent critic of the U.S. pandemic response, comes as the latest politically incorrect figure to sue Twitter after being banned, a list that includes former President Donald Trump, who filed lawsuits against multiple platforms in July, claiming censorship.

Such lawsuits are viewed by legal experts as long shots, given that tech companies are private entities covered by the First Amendment as well as Section 230 of the Communications Decency Act, which protects them from being held responsible for their users’ posts.

Twitter declined to comment on the lawsuit filed by Mr. Berenson, a former New York Times reporter and author of the newly released Amazon bestseller “Pandemia.”

Mr. Berenson had amassed more than 300,000 followers on Twitter and written four booklets on “unreported truths” about the pandemic when he was ousted from the platform for violating its rules against “COVID-19 misinformation,” which he denies.

Along with the free speech claims, the lawsuit makes the argument that the San Francisco-based company violated California’s 1872 common carrier law, which was previously applied to Western Union telegrams.

“Twitter’s role in public debate in the twenty-first century resembles that of the telegraph in the nineteenth,” reads the complaint, which was filed Monday in U.S. District Court for the Northern District of California.

Cornell Law School professor William Jacobson, who runs the Legal Insurrection website, said the complaint is “innovative, but it remains to be seen if it survives.”

“The issue will be whether Berenson can get around laws that allow individuals and entities to operate websites open to public participation without liability for third party content moderation, including control of who can participate in the website,” Mr. Jacobson said. “Berenson appears to recognize the problem in his Complaint, and devotes enormous verbiage to explaining why his case is different.”

Mr. Berenson said Twitter never told which of his tweets represented the fifth and final “strike” against him that prompted his permanent suspension on Aug. 28, but he believes it was a tweet issued the same day criticizing COVID-19 vaccine mandates.

The tweet said about the vaccine: “It doesn’t stop infection. Or transmission. Don’t think of it as a vaccine. Think of it — at best — as a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF AN ILLNESS. And we want to mandate it? Insanity.”

That statement “was true at the time and is true now,” the lawsuit states.

“Mr. Berenson made many statements on Twitter which, although controversial at the time, have since become conventional wisdom, most notably about the profound harm to children caused by remote learning and unnecessary school closures,” the court filing states.

Mr. Berenson has garnered staunch fans and fierce critics. In April, the Atlantic labeled him “the pandemic’s wrongest man.” Sen. Ron Johnson, Wisconsin Republican, called him a “courageous voice of reason” in an Aug. 2 tweet.

According to the lawsuit, pushback from the White House and other government officials on his vaccine-mandate criticism had been building in the weeks before Mr. Berenson’s ban.

In July, White House chief medical adviser Dr. Anthony Fauci called it “horrifying” after learning that a CPAC crowd that cheered when Mr. Berenson said that the government “hoped that they could sucker 90% of the population into getting vaccinated, and it isn’t happening.”

The same month, White House press secretary Jen Psaki said the federal government was “flagging problematic posts for Facebook that spread disinformation,” the lawsuit notes.

“Upon information and belief, in July 2021, the government encouraged Twitter to censor Mr. Berenson’s account,” the lawsuit states. “Twitter says that it is ‘enforcing this policy in close coordination with trusted partners, including public health authorities, NGOs and governments, and continue to use and consult with information from those sources when reviewing content.”

For more information, visit The Washington Times COVID-19 resource page.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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