Twitter tried to fend off a free-speech lawsuit on 28 April even as a federal judge asked if Elon Musk’s takeover might make the whole case moot.
“Your company has been taken over by a new owner, and your new owner may disagree with your position,” US District Judge William Alsup told Twitter’s lawyers at the hearing. “And I don’t want to have to spin my wheels and do a lot of work for nothing. So when is your new owner going to decide whether to continue with this lawsuit?”
The judge set a trial date as 8 May 2023.
Berenson began his anti-mask and vaccine mandate crusade last year, Daily Mail wrote, when an Op-Ed he penned for the Wall Street Journal claimed the pandemic had caused “a new age of censorship and suppression.” He was banned from Twitter over a tweet in which he stated that Covid vaccines do not prevent infection or transmission of the virus.
On 20 December 2021, Berenson filed a lawsuit in US District Court for Northern California seeking his reinstatement to Twitter and unspecified monetary damages over his permanent ban in August.
Why did Berenson choose to take legal action in California? He explained in THIS article which he wrote en route to the preliminary hearing.
California has some of the strongest free-speech protections of any state, Berenson wrote. The free speech guarantee in the California Constitution makes the First Amendment look weak. Section 2 of Article 1 (behind only Section 1, “All people are by nature free and independent…”) reads:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
The day after the preliminary hearing Berenson wrote: “[The trial] barely a year away. And if [the judge] does allow the suit to move forward, Twitter is likely to do everything it can to slow our progress … So, we need to get started with discovery NOW. Like today.
“We have just sent Twitter a list of questions we would like them to answer, documents we would like them to produce, and admissions of fact we would like them to make. Here’s a sample:”
Twitter has 30 days to respond – “though it’s fair to say that my lawyers will be very surprised if we get a full set of answers by May 29,” Berenson wrote.
Now Berenson is taking his legal case to Ireland. “Coming soon: a defamation suit against Twitter. In Ireland,” he wrote.
Berenson v Twitter, Part 2: I am suing for defamation. In Ireland.
Defamation is a different claim from the lawsuit moving forward in California; it is my effort to hold Twitter directly accountable for the harm the company caused me and my reputation.
Defamation, per Oxford Languages: “the action of damaging the good reputation of someone; slander or libel.”
In banning me from the platform for supposedly violating “our Covid-19 misinformation rules,” a statement it made to multiple news outlets last year, Twitter did not merely severely damage my reputation as a journalist. It tarred me as a menace to public health. I am not exaggerating.
The first line in Twitter’s “Covid-19 misleading information policy” reads:
“You may not use Twitter’s services to share false or misleading information about Covid-19 which may lead to harm [emphasis added]…”
Twitter goes on to explain:
“What is in violation of this policy?
“In order for content related to Covid-19 to considered violative under this policy, it must:
- advance a claim of fact, expressed in definitive terms;
- be demonstrably false or misleading, based on widely available, authoritative sources; and
- be likely to impact public safety or cause serious harm [again, emphasis added]”
“And” is crucial there. All three of those points must be true.
I never wrote anything “demonstrably false or misleading.”
But put that fact aside.
Twitter did not merely call my tweets “misleading” – a claim it no longer makes – it BANNED me after claiming that I had received the necessary five strikes required for a ban.
Again, its policy is entirely clear: tweets do not accrue strikes except in “cases where we determine there is potential for harm associated with the misleading claim.”
In contrast, “when the potential for harm is less direct or imminent… [Tweets] will not accrue a strike in accordance with our strike policy stated below.” [emphasis in original]
Last August, a $40 billion public company that is the world’s foremost platform for journalism told the world that I was a menace to human health. Why? Because I made statements that were accurate at the time and have proven prescient in retrospect.
Hey, lil bird? [Berenson’s reference to Twitter’s bird logo]
You don’t get to try to trash my reputation and walk away. Not in the United States, not in Ireland, not anywhere.
There are no mulligans on this. You are going to have to defend what you said about me to the world – if you still believe it, if you think it’s defensible. And with any luck, a jury will get to weigh in.
The wheels grind slow, but they grind exceeding fine.
by Rhoda Wilson