Judge William Alsup issued an opinion prior to the weekend addressing whether Twitter Inc. wrongfully banned independent journalist Alex Berenson’s account after making provocative tweets in response to and during the COVID-19 pandemic. The court permitted the plaintiff’s contract-based claims to proceed but denied other claims on grounds that Twitter erected a satisfactory Section 230 Communications Decency Act defense.
According to the opinion, Twitter rolled out a five-strike policy as part of its COVID-19 misinformation guidelines on March 1, 2021. Despite receiving assurances from Twitter leadership personally, the company began labeling Berenson’s tweets as containing misleading information, eventually locking his account in July 2021, and permanently suspending it that August.
Berenson filed suit arguing that none of the tweets qualified as a strike under Twitter’s rules and that his contact in the upper echelons of the company never advised him that he was in any trouble despite promising to do so. Twitter responded by moving to dismiss the action.
Last week, the court dismissed, without leave to amend, all but the plaintiff’s breach of contract and promissory estoppel claims. It found that “[f]or 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.”
The journalist’s First Amendment claim failed because the plaintiff conceded that Twitter is a private company and the free speech clause “only prohibits government abridgement of speech.”
In contrast, however, Judge Alsup found that Twitter’s actions, in particular that the guarantees of senior leadership, “qualify as a clear and unambiguous promise that Twitter would correctly apply its COVID-19 misinformation policy and try to give advance notice if it suspended plaintiff’s account.” As such, the court permitted the breach of contract and promissory estoppel claims to proceed “for now.”
The plaintiff is represented by Envisage Law and Chris Lex P.C. Twitter is represented by Cooley LLP.
