A quick update on Berenson v Biden

Slow and steady wins the race

We filed Berenson v Biden exactly one month ago today.

Since then… not much has happened. And not much may for a while.

Why?

Berenson v Twitter makes for an instructive contrast.

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(COMPARE AND CONTRAST. ALSO, SUBSCRIBE.)

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Following my August 2021 ban, I sued Twitter on Dec. 20, 2021 in federal court in San Francisco. Two days later, we served our complaint on Twitter.

On Jan. 5, 2022 - more or less immediately, given the Christmas holiday week - Twitter’s lawyers responded, emailing James Lawrence, my lead lawyer. They and James agreed to a deadline of Feb. 11 for Twitter to file its motion to dismiss, the company’s effort to end the case at the earliest stage.

Twitter filed that motion in February and stipulated it would be heard by Judge William Alsup, who was handling the case, on April 28. We and Alsup agreed.

We filed our response to Twitter’s motion on March 16, Twitter filed a final reply brief on April 6. Alsup heard the motion as scheduled on Thursday, April 28, barely four months after we’d filed.

Just one day later, April 29, Alsup issued an order declining to dismiss the suit. He even set an expedited schedule for discovery, the process in civil suits where the two sides provide information to each other.

Twitter and I began mediated settlement negotiations in late May. We reached a deal, and I was tweeting again on July 6, less than a year after my ban.

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(You say goodbye…)

(And I say hello…)

(Yep, the same tweet. Yep, Twitter slapped a warning on it in 2021 but not 2022. My tweet didn’t change, the little bird just stood up to the federal and corporate coercion it faced in 2022, after buckling the year before. Thus Berenson v Biden.)

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But Berenson v Biden is moving far more slowly than Berenson v Twitter.

In part, the difference comes simply because the Northern District of California runs more aggressively than some other federal courts. In Berenson v. Twitter, the court released a preliminary schedule for the lawyers to exchange information just one day after we filed. This time around, that schedule still hasn’t been set.

Plus, this case is more complex.

This time, I’m suing six defendants instead of one. Three work for the government, and three are private individuals (though I’m suing Andrew Slavitt both for his actions during his time at the White House and after he left, another reason the case is so unique and complex).

At least three separate groups of lawyers will defend them all. The Justice Department will represent the President Biden and the other two government defendants, the law firm of Davis Polk the two Pfizer defendants, and the firm of Gibson Dunn Andrew Slavitt. (Slavitt looks to be in the unenviable position of having to pay his own legal bills, but shed no tears. He runs a $115 million venture capital fund, he’ll get by.)

None of those defendants has yet conferred with James Lawrence on schedule - and the Justice Department, which will defend the government defendants, has not even accepted service of the lawsuit.

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But the biggest problem is substantive, not procedural.

Twitter had no reason to delay its defense.

Twitter’s lawyers believed Section 230, which protects social media companies for their content-moderation decisions, gave the company an ironclad defense. They assumed the sooner Alsup heard the motion to dismiss, the sooner he’d grant it.

They only learned otherwise at the hearing last April, when he began grilling them. They were shocked into stammering; the hearing transcript only begins to capture the mood.

(Spoiler alert: Ms. Hartnett - Twitter’s lead lawyer - wasn’t happy to address that)

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This time around, the defendants know better.

They know I have a real chance, because Section 230 defenses do not apply, because the facts we have plead demonstrate in detail a conspiracy to censor me - and because I beat Twitter.

So the defendants are more likely to follow the more typical playbook in cases like this: delay as long as possible. Unlike Twitter, they will be in no rush to get to a hearing on their motions to dismiss.

That motion is critical. Until the case survives it, I cannot easily begin the discovery process and force the defendants to turn over documents or answer questions relevant to the case. (Technically, it is possible to ask for discovery before a motion to dismiss is heard. But the defendants will protest and federal courts usually side with them. The logic is that defendants should not have to waste money or have their privacy invaded on discovery until a court has found a lawsuit has a chance to survive.)

And the White House has still another reason to delay.

The Justice Department is sure to argue that the case is moot because the Covid public health emergency is over, the ban happened almost two years ago, and Twitter has reinstated me. Why would I need an injunction to protect me when I am already back on, they will say?

The answer, of course, is that White House has neither acknowledged its previous social media censorship efforts nor promised not to repeat them. In fact, the Biden Administration tried after I was banned to create a “Disinformation Governance Board” (I’d call the name Orwellian, but Orwell was far too good a writer to come up with such a lame title) to coordinate the censorship efforts of various agencies. Public outcry forced the administration to drop the governance board, but censorship efforts have not ended.

Still, the White House will be hoping to memoryhole its spring and summer 2021 hysteria around the mRNA jabs - and Covid more generally. Nothing to see here, judge, we would NEVER censor anyone.

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Don’t worry. James Lawrence and I have no plans to let them forget.

And thanks to all of you, they aren’t going to be able to spend us into submission, the other strategy big defendants use. Our war chest is solid enough that I’m not even asking for more donations at this point. (And yes, I know I promised to hold a drawing for mugs - I haven’t yet. I will.)

Still, we aren’t going to get to a motion to dismiss hearing four months after our initial filing this time around. All we can do is stay on the defendants and make sure we don’t let them miss any deadlines. And we will.

The wheels grind slow, but they grind exceeding fine.

Onward.