In a landmark settlement, Twitter has publicly acknowledged that it wrongly sanctioned independent journalist Alex Berenson, and agreed to reinstate his suspended account.
The case is politically and legally significant, and worthy of comment, irrespective of what one happens to think of Alex Berenson as an individual or whether one agrees with the specifics of his opinions on Covid vaccines. It raises important issues regarding the degree of discretion private corporations should enjoy in restricting the speech of their customers under the rubric of “misinformation,” that do not turn on the merits of Berenson’s personal opinions about vaccines.
Berenson, a former New York Times journalist who had gained quite a lot of notoriety because of his outspoken criticisms of the Covid vaccination campaigns, had been “permanently banned” by Twitter back in August 2021 for describing Covid vaccines as “a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS.”
In late December 2021, Berenson filed a federal lawsuit in District Court for North California against the social media platform alleging a violation of his first amendment rights. Berenson sought to have his account reinstated and sought to receive monetary compensation for associated damages.
Most of the charges Berenson brought against Twitter, including his First Amendment claims, were dismissed by Judge William Alsup. The free speech claim against Twitter in particular was found to be unconvincing because Berenson’s lawyers failed to show that the federal government had a hand in Twitter’s actions.
However, the judge did allow the plausibility of a breach of contract claim, meaning the claim that Twitter had failed to honour its contractual obligations toward Mr Berenson, including the fair application of its five-strike rule against tweets containing dangerous and misleading Covid information:
Plaintiff plausibly avers that Twitter’s conduct here modified its contract with plaintiff and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through its vice president [who had given certain assurances to Mr Berenson via email].
In the end, the parties reached a confidential settlement, whose details Berenson is obliged to keep to himself. What we do know is contained in an official agreed statement that Berenson reported on his Substack blog, to the effect that Twitter acknowledged having wrongly suspended Berenson’s account, and agreed to reinstate it:
The parties have come to a mutually acceptable resolution. I have been reinstated. Twitter has acknowledged that my tweets should have not led to my suspension at that time.
Mr Berenson did not waste any time in re-posting the controversial tweet that originally got him suspended, confident that Twitter could no longer suspend him for that particular tweet:
Why exactly Twitter made this out-of-court settlement, we may never know. But once Twitter failed to kill the case with a “motion to dismiss,” there was at least a risk that they might lose the case in a court of law, which would presumably set a formal legal precedent that could play against them in future cases, in particular cases brought by suspended Twitter users alleging breach of contract.
There is certainly an important moral victory involved in Twitter’s admission that they dishonoured the terms of their own service or broke their contractual obligations in suspending an account that happened to cut against their own political and scientific beliefs about specific vaccines.
But at a practical level, it raises the interesting question of how much discretion a private media company should have, from a legal standpoint, in applying its own rules against “misinformation.” Can a company like Twitter simply label any claim it disagrees with as “misleading” and “dangerous” and use that as a pretext to purge its platform of political, scientific and ideological adversaries?
That seems rather problematic, since if that is what they want, their terms and conditions should simply read that they may suspend any user whose views they happen to object to, not that users may be suspended on specific grounds.
Once Twitter invokes a specific ground, such as “Covid misinformation,” as a justification for suspensions, users may form a reasonable expectation that this category will not simply be a placeholder for anything Twitter happens to take a disliking to. Twitter may not be legally bound to adhere to the principle of free speech, but they surely are contractually bound to honour the rules of their own platform, and those rules cannot be a proxy for bizarre, contorted, impenetrable, and self-serving interpretations of their own terms of service.
The Berenson vs. Twitter, Inc case does appear to suggest that there may be legal limits to the discretion Twitter has in applying its own rules about misinformation. The fact that Alex Berenson’s case survived a motion to dismiss specifically on the breach-of-contract issue may open the door for other unfairly targeted users to take their cases to a court of law, at least in the United States, and possibly elsewhere.
Of course, we won’t know for sure until other users bring more breach-of-contract cases against Twitter, alleging arbitrary or unreasonable applications of Covid misinformation rules. But being (a) only a single case, (b) a case that has been settled far too early for its legal merits to be properly tested out in the courts, and (c) a case brought within the United States, there is little reason to believe that Berenson vs. Twitter will make any major dent on Twitter’s capricious and unpredictable censorship policies.
I wish I could say that Berenson vs Twitter represents a major victory for free speech, but the repercussions of this settlement for other Twitter users will probably be quite limited. It also comes against the backdrop of Elon Musk’s announcement that he no longer intends to purchase Twitter.
I hate to be a party-pooper, but sadly, Twitter seems likely to remain a distinctly inhospitable place for free speech for the foreseeable future.