An update on Berenson v Biden - and the Trump Administration's missed chance to take on Biden White House censorship

I can't believe it either. But the administration can still change course.

President Trump ran on restoring free speech in our country. I am thankful to President Trump and his Administration for standing up for my constitutional rights and my work as a reporter.

I hoped to have the chance to say those words to the world. At this moment it looks like I won’t.

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Even before it came into power, the Trump administration rightly attacked Joe Biden’s social media censorship regime.

On his first day as president, Donald Trump issued an executive order against it. In February, Vice President JD Vance slammed Europe’s version of it. Just last week, the administration stopped West Point from hiring a professor because she had run Biden’s cybersecurity agency, which helped coordinate its attacks on speech.

But on Friday, given a golden chance to highlight Democratic censorship against me. the Trump administration instead decided to give a Biden-appointed judge the chance to protect them.

Make it make sense.

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(I can’t make it make sense. But I can tell you about it. I hope you’ll help me do so.)

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It’s crucial to understand the difference between Berenson v Biden and the Missouri lawsuit against Biden, which the Supreme Court ruled against earlier this year.

In Missouri, the Court found in April the plaintiffs did not have “standing” to sue on their core First Amendment complaint because they couldn’t prove the Biden administration’s actions had hurt them.

In Berenson v Biden, Judge Clarke also found in partially dismissing my suit last month that I did not have standing to sue on First Amendment grounds.

But she did NOT say I lacked evidence the government violated my rights or forced Twitter to ban me. In fact, her 52-page ruling goes into great factual detail about how Andrew M. Slavitt and other Biden officials did so.

Instead, she said I had no standing because federal law didn’t give her or a jury the way to fix any Constitutional damages the Bidenites might have caused.

An injunction telling them to stop the censorship would be pointless. Biden’s not in office and Trump has already ordered the government to stop similar efforts. More stunningly, under existing precedent, Americans cannot win money damages against the federal government for First Amendment violations.

That hole in the law may seem bizarre. I didn’t believe it either, at first. But it is true. Nothing makes the government pay for harming Constitutional rights. The Supreme Court has extended some protection for violations of the Fourth, Fifth, and Eighth Amendments under what are called Bivens claims. But it has so far not done so for First Amendment violations.

Judge Clarke’s order dismissing my claims against Slavitt makes the basis of her ruling — on the law, not the facts — clear:

The Court finds that Plaintiff lacks standing to assert a First Amendment claim against Slavitt because he cannot obtain any remedy¹ (injunctive relief or damages under Bivens) against Slavitt.

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(I was so optimistic when I saw this…)

SOURCE

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Cannot obtain any remedy. That finding seems pretty unfair to me — and it is possible the Supreme Court could decide my First Amendment claim is strong enough to deserve damages, if the case gets that far.

Further, Clarke found I couldn’t sue under a federal law barring conspiracies to violate civil rights because Covid unvaccinated people don’t count as a protected class.

But Clarke’s ruling didn’t end the case.

Here’s where the Trump administration comes in.

In April, the Department of Justice and I agreed to stay the part of it that applied to Biden administration defendants other than Slavitt for three months.² I assumed the government had asked for the stay because the Trump administration wanted to settle its part of the case.

My lawyer James Lawrence and I proposed a resolution to the suit. The key was that the administration would acknowledge the Biden censorship — and, ideally, even give me a chance to investigate the Biden censorship apparatus from the inside.

Part of our offer was that I would publish the statement thanking President Trump that begins this article.

This offer seemed, truly, like a win-win. And when Judge Clarke dismissed the non-government defendants — Slavitt and two senior Pfizer officials — from the case last month, she opened the way for the Trump administration to settle without hurting Pfizer, if that was the White House’s concern.

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That’s not what happened.

Instead, on Friday, Department of Justice lawyers filed a letter with Judge Clarke saying they no longer believed Berenson v Biden “fails to state a plausible First Amendment claim.”

That’s the good news.

But then they asked Clarke dismiss the rest of the case on the same grounds she had already dismissed the suit against Slavitt — on the theory that I don’t have a remedy.

In other words, the Trump administration isn’t even pretending the Biden White House didn’t censor me.

Apparently, right now, it just doesn’t want to fix what happened. Even though President Trump’s executive order instructed his administration to “identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.”

Keep in mind, the administration could settle the case without admitting it had done anything wrong or opening itself to other Bivens claims. A legal settlement has no value as a court precedent.

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(It’s not a fair fight. But I’ll do everything I can to win it. With your help.)

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So what happened?

I have no idea.

I don’t know whether President Trump knew about Berenson v Biden. The President of the United States has other things to worry about. I don’t know if JD Vance did, either.

But I know senior officials in the Justice Department knew. And the decision to take the side of the Biden administration and against me and the Covid unvaccinated could not have been made lightly.

I hope, truly, it wasn’t President Trump.

And if he hears about this somehow, I hope he steps in.

1. Emphasis added.

2. Slavitt was not represented by the Justice Department, because his efforts to censor me continued after he left the White House.