Berenson v Biden is at a critical moment

And the Trump Administration may be about to fumble away an easy free speech victory - for reasons I cannot understand

Within days, the Trump White House will have to decide if it stands for free speech on the Internet, as it has promised — or Democratic censorship.

The reason is that a federal judge, Jessica G.L. Clarke, just ruled against me and partly dismissed Berenson v Biden, my lawsuit against the Biden Administration and Pfizer executives over their conspiracy to make Twitter ban me in 2021.

On Monday, Clarke dismissed the private defendants, including Dr. Albert Bourla, Pfizer’s chairman, from the case. The suit’s federal portion — covering the government defendants — remains temporarily stayed, as the White House and I agreed in April.

So the ruling comes with a silver lining. It gives the Trump administration a chance to settle the suit’s federal portion on its own terms, notch a win for free speech, and highlight the Biden White House’s coercive efforts to force social media companies to silence conservative and dissident views.

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(Win or lose, I’ll always fight for you.)

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Yet so far, the White House seems uninterested in settling. It hasn’t even suggested extending the stay, which expires in days.

If the administration will not settle with me and the stay expires, Clarke is almost sure to dismiss the part of the lawsuit that covers the federal defendants too.

But in that case, we will very likely appeal. Clarke’s ruling offers ample grounds for appeal, because it essentially comes from her view of the law, rather than the facts of the case.

For example, Clarke found that my core First Amendment claims are barred not because I couldn’t prove the White House censored me or I was injured as a result, but because the Supreme Court has not allowed for money damages against the federal government for First Amendment violations.

She is right that until now the Supreme Court hasn’t allowed those types of damage suits against the government. But that’s an issue I would happily raise on appeal.

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(The crucial paragraph from Judge Clarke’s ruling:

The First Amendment claim is dismissed because I “cannot obtain any remedy” under existing law. The 1985(3) civil rights claim is dismissed because unvaccinated people are not “a recognized protected class.” These are LEGAL, not factual, findings.

The dismissal of the claim that the defendants interfered with my contract with Twitter rested on a factual finding, but we believe Judge Clarke simply erred and should have followed Judge William Alsup’s ruling about my contract in Berenson v Twitter.)

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Under John Roberts, this Supreme Court has reexamined the law and Constitution on many fronts. Perhaps it will decide it does not want to incentivize federal officials to push Big Tech to censor users by banning claims like mine.

There’s no way to know unless we appeal.

And Berenson v Biden raises a second issue of national importance — whether unvaccinated people deserve any civil rights protections under federal law from conspiracies to deprive them of basic constitutional rights. Judge Clarke does not believe they do, even though the Second Circuit (which covers New York, where I brought Berenson v Biden) has extended similar protections to many other groups.

Further, as adverse rulings go, Clarke’s ruling contains several favorable nuggets for us. It is based on a close factual review of the allegations in the first amended complaint. Crucially, Clarke did not reach the defense argument that Slavitt and the Pfizer defendants simply exercised their own free speech rights when they used overwhelming federal and corporate power to force Twitter to ban me. Nor did she adopt the argument from the Pfizer defendants that I was somehow a bad actor hoping to abuse the discovery process.

Instead, she treated the case and my claims seriously. If you had asked me to write the best possible bad ruling, it would have looked a lot like this.

Appeals built around legal arguments rather than disputes over factual findings have a far better chance of success, particularly in evolving areas of the law. Thus, if we cannot settle, and Judge Clarke dismisses the whole case, we will be strongly inclined to appeal, to the Second Circuit and then the Supreme Court if necessary.

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If we do, will the Trump administration really want to agree with Clarke — whom President Biden appointed — and defend her ruling?

Will it really take the position that the Biden White House was right to censor me and I shouldn’t be allowed the chance for compensation?

Or that unvaccinated adults, who generally are among Trump’s most vocal supporters, don’t deserve the same protection as black people, gay people, or even members of the Falun Gong religious cult?

Does the Trump administration want to defend that position in appeals court too?

Because that’s where all this is likely headed if we can’t settle.

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Maybe the administration doesn’t care. Trump has angered many of his strongest and most fervent supporters over the Jeffrey Epstein case in the last few weeks. The administration has made other puzzling moves recently too, like approving the mRNA Covid vaccine from Moderna for infants and toddlers.

But failing to settle with me would be a true own goal, giving up an easy win.

I want to work with the Trump White House on this. I favored the executive orders on free speech that Trump issued on his first day in office. I cheered JD Vance’s clarion call for free speech in Munich in February. As far as I could tell, Vance was talking about me and this case.

And I don’t want to negotiate in public, but there are lots of ways to structure a settlement that might address any potential concerns the administration might have and keep the focus where it belongs, on the Biden administration’s censorship.

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(Keeping the focus where it belongs. On the truth.)

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There’s one final irony.

President Trump has rightly decried the lawfare he faced in New York’s state and federal courts. Why would he want his administration to defend a New York ruling that cuts against arguments his strongest supporters and one of his own cabinet members have made about the Biden administration’s censorship?

Let’s just hope someone inside the White House sees the chance to solve Berenson v Biden in a way that works for everyone.