In a seven-page decision dated April 29, Senior U.S. District Court Judge William Alsup ordered Twitter to "produce all texts, emails, voicemails and other documents pertaining to plaintiff [Berenson]" with regard to "nonparty complaints or inquiries about [him] and/or including possible or actual termination of his account, a strike against his account or a labeling of any of his posts." The federal judge gave a deadline of June 20 for this.
The magistrate also ordered Twitter to specify the five strikes that led to Berenson's ban "within 14 calendar days." The tech giant announced its five-strike policy against COVID-19 misinformation back in March 2021.
The erstwhile NYT reporter reached out to Brandon Borrman, then-vice president of global communications for Twitter, to ask if his tweets critical of COVID-19 vaccines would be affected by the new rule. Berenson received this reply from the Twitter executive: "I will say that your name has never come up in the discussions around these policies. If it does, I will try to ensure you're given a heads-up before an action is taken, but I am not always made aware of them before they're executed."
However, Berenson found his Twitter account locked on July 16 – which was deemed the second strike on his account. He was not informed of any actions that constituted the first strike on his account. The journalist received his third strike on July 27, his fourth strike three days later on July 30 and the fifth strike on Aug. 28 – the latter meriting a permanent suspension.
As a result of this, Berenson sued the Big Tech website in December 2021. Twitter, in turn, filed a motion to dismiss his case. Alsup sided with Berenson in his April 29 decision, junking Twitter's motion and allowing the journalist's lawsuit to move forward. (Related: Journalist Alex Berenson sues Twitter after being banned for stating facts on Covid vaccines.)
Berenson's claim of Twitter violating his free speech rights guaranteed by the First Amendment was dismissed, however.
"The free speech clause only prohibits government abridgement of speech. Plaintiff concedes Twitter is a private company," wrote Alsup. "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."
The federal judge appointed by former President Bill Clinton still found cause for the lawsuit against Twitter due to its breach of contract – as seen in its move to give Berenson five strikes despite Borrman's assurances to the contrary.
"Twitter allegedly established a specific, detailed five-strike policy regarding COVID-19 misinformation and its vice president gave specific and direct assurances to plaintiff regarding his posts pursuant to that policy. Collectively, these actions plausibly 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," Alsup stated in his decision.
"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 [erstwhile] vice president. Any ambiguities in a contract like Twitter's terms of service are interpreted against the drafter, Twitter."
Alsup concluded his decision by pointing out that the former NYT reporter "does not seek to hold [Twitter] liable as a publisher or speaker of third-party content, but rather as the counter-party to a contract, as a promisor who has breached."
Banned.news has more on critics of the COVID narrative being silenced by Big Tech.
Watch the video below talking about the three strikes that led to InfoWars founder Alex Jones' permanent ban on Twitter.
This video is from the InfoWars channel on Brighteon.com.