alex berenson – Techdirt (original) (raw)

Stop Trying To Make State Action Doctrine Happen

from the non-state-action dept

I’ve spent many years criticizing government officials and politicians of both parties for threatening retaliation against individuals and companies for their speech. But there are some pretty clear lines of what counts as actual 1st Amendment violations in retaliating over speech, and what is just government folks mouthing off and expressing their own opinion. To be clear, I think government officials should mostly shut the fuck up, instead of trying to influence websites on how to moderate, but there’s a pretty big distance between unwise mouthing off and reaching the level where it becomes a state action issue.

The state action doctrine is not just that “government folks got mad, and some private actor took action,” but rather you have to show the government was actually responsible for the action, and not the private actor. Basically, the state needs to have fully compelled the action at issue, and usually that has to have included a very clear threat of government action against the private actor if they don’t take the steps desired.

Unfortunately, a bunch of bad faith actors have been pushing the ridiculous claim that government officials merely stating an opinion on certain content, then magically turns anyone who takes action on that same content into a state actor. This is silly. Two of the leading proponents of this nonsense theory are disgraced Yale Professor Jed Rubenfeld and some biotech exec who appears to be trying to grift off “anti-woke” sentiment, Vivek Ramaswamy.

A year and a half ago, they declared that because some people in Congress were saying that websites should moderate more content, that turned social media into state actors. It was an obviously nonsense claim. Rubenfeld, apparently with more time on his hands than common sense, then tried to use that argument to help anti-vaxxer Robert F. Kennedy Jr. win a case against Facebook. That failed as the court (rightfully) tossed the case and made it clear that just because some people in the government say something, and then a social media site takes action, it doesn’t magically turn the social media companies into state actors.

And, it should be obvious why that’s the right decision. If someone in government merely mused about “this content is problematic” and then as soon as any site took action it became a state actor, effectively any bad faith government official could block the 1st Amendment association and editorial rights of any website. Just get anyone in Congress to express their opinion that “so-and-so shouldn’t be on social media” and then — according to this nonsense theory — that person can never, ever be moderated.

That’s not how any of this works.

Anyway. Rubenfeld and Ramaswamy are back again — again in the pages of the WSJ Opinion section, because that’s the only place that will take them — to argue vindication, and that Twitter has become “a tool of government censorship.” The whole thing is based on bullshit from a bullshit artist.

You may recall that the “pandemic’s wrongest man” sued Twitter over its decision to remove him from the site. Berenson was very, very sure that his case was incredibly strong. He was wrong. The judge tossed out nearly all of it, including every free speech claim, and left just a tiny portion to move forward hinting very strongly that, after discovery, the remaining tiny bit, exploring the possibility of promissory estoppel (i.e., did Twitter somehow “promise” Berenson he wouldn’t be kicked), he was ready to toss the rest.

Of course, discovery is expensive, distracting and time consuming. And Twitter’s lawyers are kinda busy on other matters, so it made sense that the company came to a settlement with Berenson that allowed him back on the site. This caused some people to highlight that Berenson had promised never to settle the case and to expose the deep dark secrets of Twitter’s moderation practices.

The latest is that Berenson revealed some internal Slack chats that he had obtained, showing Twitter employees recounting a meeting they had with White House officials asking why Berenson wasn’t banned from Twitter. Berenson presented this as proof that the White House “demanded Twitter ban me.”

Alex insists he’s now going to sue the White House, and dude, knock yourself out. As we’ve said, the government really should shut the fuck up in telling websites how to moderate, and that includes this. But I think it’s highly, highly unlikely that any court would find this reaching the level of actual 1st Amendment violation — but, hey, if he can set a precedent that government officials should stop trying to pressure companies about their editorial decisions, more power to him.

However, none of this makes Twitter “a state actor.” First, none of the revealed messages indicate actual “demands” or any other kind of threat of retaliation. All it shows is that White House officials asked why Berenson, elite spewer of misinformation, hadn’t violated Twitter’s policies. And asking questions like that is not a violation of anyone’s rights.

Second, as Berenson himself admits, this conversation happened “months before the company” actually did ban him. So, if you’re looking to show that the White House ordered it and Twitter complied, the timeline creates a pretty big problem for that.

Of course, idiots on Twitter have gone nuts over this, taking Berenson’s extremely misleading framing of this, and repeating over and over again that the White House “ordered” him to be blocked. Most of the media has been more circumspect, either not reporting on this non-story at all, or noting “Berenson claims” or (more accurately) “White House asked why…”

But, the Wall Street Journal editorial pages have no standards for accuracy or truth or anything. They’re basically the pure id of Rupert Murdoch’s fever dreams. So when Rubenfeld and Ramaswamy want to argue that this story proves Twitter is a state actor, the WSJ is more than happy to oblige. It’s all nonsense, though.

Facts that Mr. Berenson unearthed through the discovery process confirm that the administration has been secretly asking social-media companies to shut down the accounts of specific prominent critics of administration policy.

Except they weren’t asking them to shut down the accounts. They were asking why the companies didn’t consider Berenson to have violated its terms. Which is a legitimate question.

Last Friday Mr. Berenson published conversations from an internal Twitter Slack channel. Referring to an April 2021 meeting with White House officials, one Twitter employee noted that the meeting overall was “pretty good,” but added that the White House “had one really tough question about why Alex Berenson hasn’t been kicked off from the platform.”

Another employee asked: “Any high level takeaways from the meeting? Anything we should keep an eye out for?”

The first employee responded: “Yes, they really wanted to know about Alex Berenson.” The employee wrote that Andy Slavitt, then a senior White House Covid adviser, “suggested they had seen data viz that had showed he was the epicenter of disinfo that radiated outwards to the persuadable public.” (“Viz” probably stands for “visualization” and “disinfo” for “disinformation.”)

Again, literally all that shows is the White House asking about it. And, as Berenson’s buddy, Tucker Carlson, let’s us know all the time, “what’s wrong with just asking questions?” Again, none of this turns Twitter into a state actor.

Remember that this meeting happened many months before Twitter said Berenson violated its rules.

Private companies taking into account factual information provided by the government that shows users violated company policy does not make you into a state actor. Rubenfeld and Ramaswamy also point to actions taken by Facebook to remove disinfo as more proof — and again, all it shows is proof that the companies have their own policies and sometimes take action on them.

Recent Freedom of Information Act disclosures show that a week later, on July 23, 2021, Nick Clegg—a former U.K. deputy prime minister and now Facebook parent Meta’s president for global affairs—emailed Dr. Murthy to thank him for meeting with Facebook and to report on “the steps we took just this past week” to “further address the ‘disinfo dozen’: we removed 17 additional Pages, Groups, and Instagram accounts tied to the ‘disinfo dozen’ . . . resulting in every member . . . having had at least one such entity removed.” He added that Facebook was “continuing to make 4 other Pages and Profiles, which have not yet met their removal thresholds, more difficult to find on our platform.”

That’s a company taking actions based on its policies. It’s not evidence of state action.

Again, under the rules that Rubenfeld wants, if any government official ever calls out someone for disinformation, he seems to believe no website can ever take action against that person, no matter how frequently or how egregiously they break the rules.

That’s… disconnected from reality. It’s so disconnected from reality, Yale students taught by Rubenfeld should maybe consider demanding a refund.

When the government exploits these legislative inducements to target specific critics for censorship, it has crossed a constitutional Rubicon. Targeting, punishing and silencing dissenters is the paradigmatic First Amendment violation. The Biden administration is using Big Tech as its private censorship arm, and that violates what the Supreme Court, in Norwood v. Harrison (1973), called an “axiomatic” principle: The government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”

Except… there were no legislative inducements going on here. This is just silly. The government asked “why didn’t these actions violate your policies” and the companies then looked to see if they did. That’s not what Rubenfeld and Ramaswamy are claiming.

Democracy depends on free and open debate. If government officials continue to deputize private companies to stifle dissenters, it’s high time for federal courts to deliver them a reminder: If it’s state action in disguise, the Constitution applies.

Again, I agree that government officials really should shut up on all this — but nothing described so far goes anywhere near the level necessary to be state action. It is not correct to say that the government cannot ask questions or call out what seems like false information.

This entire article further tarnishes whatever is left of Rubenfeld’s tattered reputation. State action doctrine means something. A government official asking “does this content violate your policies”… is not that.

Filed Under: alex berenson, content moderation, jed rubenfeld, state action, state action doctrine, vivek ramaswamy
Companies: twitter

Judge Alsup Dismisses Nearly All Of Alex Berenson Frivolous Lawsuit Against Twitter

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.

Filed Under: 1st amendment, alex berenson, free speech, lanham act, promissory estoppel, section 230, unfair competition, william alsup
Companies: twitter

Not How Any Of This Works: Pandemic's Wrongest Man Sues Twitter For Kicking Him Off The Platform

from the throwing-money-down-the-toilet dept

For good reasons, Alex Berenson has been dubbed the “pandemic’s wrongest man.” He played up the fact that he once wrote for the NY Times and turned that into a weird, shady attack on pot, before going all in on medical misinformation. In the early days he played down the threat of COVID, and has since become a leading vaccine disinfo spreader. He had built a large Twitter following for his nonsense, and shortly before his Twitter account was finally shut down, he had warned that if it was shut down he would sue Twitter… for defamation. Then, once he was banned, he (in typical grifter fashion) immediately went into fundraising mode even though the extraordinarily wealthy heir of a frozen food fortune promised to fund such a lawsuit.

It’s unclear whether or not your frozen TV dinners from the 1980s are now funding it, but a Berenson has now filed his long-awaited lawsuit against Twitter. Somewhat amazingly, given the multitude of bad legal theories put forth in the complaint, it doesn’t include a defamation claim. Instead it has eight claims, and they start out laughable and, incredibly, only gets worse from there:

  1. Violation of the First Amendment
  2. Federal False Advertising and Unfair Competition
  3. Violation of California Common Carrier Law
  4. Violation of California Unfair Competition Law
  5. Breach of Contract
  6. Promissory Estoppel
  7. Violation of the California Constitution
  8. Unjust Enrichment

I don’t have the time or the stamina to fully break down how truly ridiculous all eight of these claims are, or why they will so obviously fail, but let’s just do the lightning round version (this will skip over some of the nuances, but none of the nuances help Berenson, they only make his case look that much dumber). Suffice it to say, like many similarly situated people — those with huge internet followings but with a tenuous grasp on reality — this lawsuit appears to be extremely performative, rather than serious.

This is a long list of silly, debunked, or occasionally creative attempts to try to get around Section 230. None of them should or will work. The case should be dismissed either because of 230 immunity, or as in the similarly stupid Prager University case, maybe the judge will skip over all the nonsense and throw it out on 1st Amendment grounds entirely. This is not a serious lawsuit and the lawyers who filed it — James Lawrence and Anthony Biller from Envisage Law, and Sean Gates from Charis Lex — should all be embarrassed for handing the court a pile of such utter nonsense.

Twitter has the right to remove people from its platform. It’s Twitter’s platform. It makes the rules. If it feels Berenson violated the rules, game over. This case is nonsense piled upon nonsense.

Filed Under: 1st amendment, alex berenson, content moderation, promissory estoppel, section 230, unfair competition
Companies: twitter

Section 230 Continues To Not Mean Whatever You Want It To

from the 230-truthers dept

Fri, Jul 9th 2021 10:41am - Ari Cohn

In the annals of Section 230 crackpottery, the “publisher or platform” canard reigns supreme. Like the worst (or perhaps best) game of “Broken Telephone” ever, it has morphed into a series of increasingly bizarre theories about a law that is actually fairly short and straightforward.

Last week, this fanciful yarn took an even more absurd turn. It began on Friday, when Facebook began to roll out test warnings about extremism as part of its anti-radicalization efforts and in response to the Christchurch Call for Action campaign. There appears to be two iterations of the warnings: one asks the user whether they are concerned that someone they know is becoming an extremist, a second warns the user that they may have been exposed to extremist content (allegedly appearing while users were viewing specific types of content). Both warnings provide a link to support resources to combat extremism.

As it is wont to do, the Internet quickly erupted into an indiscriminate furor. Talking heads and politicians raged about the “Orwellian environment” and “snitch squads” that Facebook is creating, and the conservative media eagerly lapped it up (ignoring, of course, that nobody is forced to use Facebook or to pay any credence to their warnings). That’s not to say there is no valid criticism to be lodged?surely the propriety of the warnings and definition of “extremist” are matters on which people can reasonably disagree, and those are conversations worth having in a reasoned fashion.

But then someone went there. It was inevitable, really, given that Section 230 has become a proxy for “things social media platforms do that I don’t like.” And Section 230 Truthers never miss an opportunity to make something wrongly about the target of their eternal ire.

Notorious COVID (and all-around) crank Alex Berenson led the charge, boosted by the usual media crowd, tweeting:

Yeah, I’m becoming an extremist. An anti-@Facebook extremist. “Confidential help is available?” Who do they think they are?

Either they’re a publisher and a political platform legally liable for every bit of content they host, or they need to STAY OUT OF THE WAY. Zuck’s choice.

That is, to be diplomatic, deeply stupid.

Like decent toilet paper, the inanity of this tweet is two-ply. First (setting aside the question of what exactly “political platform” means) is the mundane reality, explained ad nauseum, that Facebook needs not?in fact?make any such choice. It bears repeating: Section 230 provides that websites are not liable as the publishers of content provided by others. There are no conditions or requirements. Period. End of story. The law would make no sense otherwise; the entire point of Section 230 was to facilitate the ability for websites to engage in “publisher” activities (including deciding what content to carry or not carry) without the threat of innumerable lawsuits over every piece of content on their sites.

Of course, that’s exactly what grinds 230 Truthers’ gears: they don’t like that platforms can choose which content to permit or prohibit. But social media platforms would have a First Amendment right to do that even without Section 230, and thus what the anti-230 crowd really wants is to punish platforms for exercising their own First Amendment rights.

Which leads us to the second ply, where Berenson gives up this game in spectacular fashion because Section 230 isn’t even relevant. Facebook’s warnings are its own content, which is not immunized under Section 230 in the first place. Facebook is liable as the publisher of content it creates; always has been, always will be. If Facebook’s extremism warnings were somehow actionable (as rather nonspecific opinions, they aren’t) it would be forced to defend a lawsuit on the merits.

It simply makes no sense at all. Even if you (very wrongly) believe that Section 230 requires platforms to host all content without picking and choosing, that is entirely unrelated to a platform’s right to use its own speech to criticize or distance itself from certain content. And that’s all Facebook did. It didn’t remove or restrict access to content; Facebook simply added its own additional speech. If there’s a more explicit admission that the real goal is to curtail platforms’ own expression, it’s difficult to think of.

Punishing speakers for their expression is, of course, anathema to the First Amendment. In halting enforcement of Florida’s new social media law, U.S. District Judge Robert Hinkle noted that Florida would prohibit platforms from appending their own speech to users’ posts, compounding the statute’s constitutional infirmities. Conditioning Section 230 immunity on a platform’s forfeiture of its completely separate First Amendment right to use its own voice would fare no better.

Suppose Democrats introduced a bill that conditioned the immunity provided to the firearms industry by the PLCAA on industry members refraining from speaking out out or lobbying against gun control legislation. Inevitably, and without a hint of irony, many of the people urging fundamentally the same thing for social media platforms would find newfound outrage at the brazen attack on First Amendment rights.

At the end of the day, despite all their protestations, what people like Berenson want is not freedom of speech. Quite the opposite. They want to dragoon private websites into service as their free publishing house and silence any criticism by those websites with the threat of financial ruin. It’s hard to think of anything less free speech-y, or intellectually honest, than that.

Ari Cohn is Free Speech Counsel at TechFreedom

Filed Under: 1st amendment, alex berenson, extremism, fact checking, free speech, section 230, speech
Companies: facebook