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The Raleigh Lawyers Behind an Anti-Vaxxer’s Bizarre Twitter Lawsuit
Thurs., Dec. 22: Also, Madison Cawthorn says drop out of college, just like he did
» Raleigh Lawyers Help Anti-Vax Crank Sue Twitter
If you’re a Very Online person, you’re probably familiar with Alex Berenson, a former New York Times reporter turned “independent journalist” who, before the pandemic, was best known—and widely mocked—for a book that tried to link marijuana to psychotic violence. During the pandemic, he turned being wrong into an art form.
In April, The Atlantic dubbed “The Pandemic’s Wrongest Man” for his online essays and Twitter rants against the COVID vaccines and masks.
Berenson has been serving up COVID-19 hot takes for the past year, blithely predicting that the United States would not reach 500,000 deaths (we’ve surpassed 550,000) and arguing that cloth and surgical masks can’t protect against the coronavirus (yes, they can).
Berenson has a big megaphone. He has more than 200,000 followers on Twitter and millions of viewers for his frequent appearances on Fox News’ most-watched shows. On Laura Ingraham’s show, he downplayed the vaccines, suggesting that Israel’s experience proved they were considerably less effective than initially claimed. On Tucker Carlson Tonight, he predicted that the vaccines would cause an uptick in cases of COVID-related illness and death in the U.S.
The vaccines have inspired his most troubling comments. For the past few weeks on Twitter, Berenson has mischaracterized just about every detail regarding the vaccines to make the dubious case that most people would be better off avoiding them. As his conspiratorial nonsense accelerates toward the pandemic’s finish line, he has proved himself the Secretariat of being wrong.
In August, Twitter banned Berenson for saying this about the COVID vaccine:
“It doesn’t stop infection. Or transmission. Don’t think of it as a vaccine. Think of it - at best - as a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS. And we want to mandate it? Insanity.”
As all oppressed independent journalists do, Berenson went on Substack—pauses, looks around, winces—to complain about censorship, ask for money, and threaten a lawsuit. (“They have defamed me and denied me a very important platform. But with your help, I’ll do my best to keep getting the truth out.”)
Then Tucker Carlson brought him on his show and offered to pay his legal bills.
I don’t know if Tuck made good on his offer, but on Monday, Berenson sued Twitter in a California federal court, alleging that the company violated the First Amendment, engaged in false advertising, engaged in unjust enrichment, and broke a few California laws.
While Twitter and other social media companies have defeated previous lawsuits by citing their First Amendment right to regulate their own spaces and/or Section 230 of the Communications Decency Act of 1996—“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”—Berenson argues that his case is different.
“This lawsuit is not a rerun of these long-running disputes. For one thing, different laws are at issue, among them a California law that predates the CDA by 124 years and which limits Twitter’s right to discriminate against the speech it carries.”
Also: “Section 230, which preempts certain state and local laws, does not shield Twitter from the reach of California’s common carrier statute or the California Constitution. Twitter’s potential reliance upon section 230 as a defense against Mr. Berenson’s claims asserting California speech-protection laws raises federal First Amendment issues that federal courts must adjudicate.”
And whatever this means: “According to Twitter, for at least a certain time period, Mr. Berenson used Twitter in violation of the company’s policies, and Twitter profited in the process. Any profits traceable to Mr. Berenson’s reporting are a benefit conferred on Twitter that it should not have received. Mr. Berenson is entitled to restitution from Twitter.”
The complaint is very long and conspiratorial: Berenson is the heroic truth-teller suppressed by the Powers That Be who want to silence his Truth, etc., and Twitter was responding to pressure and/or orders from the Biden administration to ban him.
For our purposes, it suffices to say that the legal arguments are … probably not going to fly.
I asked a local lawyer who deals with 1A issues for his take:
Federal law preempts state law via the Supremacy Clause of the Constitution. So if California adopts a "Twitter is liable as a common carrier" statute, it doesn't matter because §230 of the Communications Decency Act is federal and preempts any state regulation.
First Amendment only restrains the Government, not private actors. The only time private actors are liable for a First Amendment violation is when they're acting as the Government.
This Twitter thread goes into more detail on those points:
Beyond the obvious First Amendment issues—Twitter, a private company, has a constitutional right not to provide a platform for whatever it deems misinformation—the important thing is in the terms of service that Berenson (like you and me) agreed to when we opened our Twitter accounts:
Twitter “may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason.”
Berenson’s lawsuit spends pages and pages arguing that the tweets Twitter deemed misleading or false weren’t really misleading or false, but that seems beside the point if the company can bounce you for “any or no reason.”
In the end, this crusade will probably end up costing Berenson (or Tucker Carlson).
And because Twitter’s terms of service require claims against it to be heard in California, they’re adjudicated under that state’s vigorous anti-SLAPP law. Which is how Laura Loomer, the wingiest of the wingers, wound up on the hook for hundreds of thousands of dollars in legal fees when she sued the company for tortious deplatforming in 2019.
So, you might be wondering, what lawyer would take what appears to be a hot mess?
Raleigh lawyers, it turns out.
Specifically, two lawyers at a Raleigh firm called Envisage, where “We believe like the founders of this country that a free people should never be ashamed or feel compelled to hide their faith in God.”
James Lawrence III was previously a lawyer in the Trump administration’s Department of Health and Human Services and Food and Drug Administration.
In 2012, while at UNC Law, he authored a law review paper arguing that a state law forbidding employers from firing tobacco users “is an affront to freedom of contract in the labor market, that it unjustifiably limits the ability of North Carolina firms to pursue health and wellness programs, and that it gives tobacco addiction the support of North Carolina law.”
He also clerked for N.C. Supreme Court Justice Paul Newby in law school and “was actively involved in the UNC chapter of the Federalist Society.”
Anthony J. Biller clerked for the late federal Judge William Osteen Sr., a former Republican legislative leader and George H.W. Bush appointee who ruled in tobacco companies’ favor in a challenge to EPA secondhand smoke regulations in the 1990s. Biller focuses on intellectual property and business law.
In February, on behalf of Wake County Public-school System Concerned Parents, he sent Governor Cooper a letter demanding that he reopen the state’s public schools for in-person instruction, alleging that Cooper was employing unconstitutional powers and arguing that remote learning “deprives our most vulnerable children in violation of their fundamental right to a sound education under North Carolina law.”
I emailed Lawrence yesterday to ask how a small Raleigh law firm that focuses on intellectual property, corporate law, and wealth management ended up representing a New York journalist in a First Amendment case filed in California (and whether Tucker Carlson was, in fact, footing the bill). I’ve yet to hear back.
» Madison Cawthorn Wants You to Drop Out of College, Be Smart Like Him
I’ll let this one speak for itself.
Also, Madison and his wife of eight months are splitting up. I can’t possibly imagine why.
« Happy Holidays, Etc.
Hey, y’all. I’m going to take the next few days off. First, though, I wanted to thank you—OGs and newbies alike—for reading, sharing, subscribing, writing to tell me I got something wrong, and making this newsletter fun. Have a wonderful holiday. Talk soon. —Jeff.