Some of you have asked about why Berenson v. Twitter matters and why I am spending time on it instead of focusing on vaccines, mandates, and other news.
I promise a full answer soon.
But here’s part of the reason. Here’s how the world’s most important platform for journalism ACTUALLY sees itself, its rights, and its obligations to permit free speech.
The following transcript is from a hearing in the Superior Court of San Francisco in June 2018 on a case called Taylor v. Twitter. Six months before, Twitter had barred a white supremacist named Jared Taylor (can we please not argue if he is a white supremacist? It’s irrelevant to this discussion).
Taylor filed a complaint in California state court. Among other claims, he alleged unfair competition - that Twitter’s terms of service were unconscionable and its business practices fraudulent because it promised users the opportunity to speak freely but did not.
To the obvious surprise of Twitter’s attorneys, Judge Harold E. Kahn showed sympathy to Taylor’s arguments (as opposed to sympathy to Taylor and his views - which is, or at least used to be, the point of having freedom of speech).
At the hearing, Kahn put Twitter’s lawyers to the test. Could Twitter ban gay people, or women, or African-Americans, if it chose?
KAHN: Does Twitter have the right to take somebody off its platform if -- it does so because it doesn't like the fact that the person is a woman? Or gay? Or would be in violation of Title 7? Or would be in violation of the age discrimination laws, or the disability discrimination laws?
Kahn was so certain the question had only one response that he actually answered it himself:
Of course not.
—
But after a short back-and-forth, Twitter’s lawyer Patrick Carome told the judge he was wrong.
Twitter might call itself a “public square” - as Jack Dorsey would say under oath in Congressional testimony three months later. In reality it had every right to ban a black person, or a woman, or anyone else it liked, for any reason, or no reason at all.
CAROME: And, in fact, as to Your Honor's question about could a First Amendment speaker choose by gender, or age, or something like that, in fact -- I mean Twitter would never, ever, ever do that; it's totally contrary to everything it does… [But] does the First Amendment provide that protection? Absolutely it does.
Okay then.
Carome is no first-year associate who misspoke under pressure. His biography describes him as "the nation’s preeminent advocate in litigation concerning Section 230 of the Communications Decency Act, the federal law that shields operators of online platforms from liability pertaining to publishing third-party content.” He is one of the lawyers helping defend Twitter from Donald Trump’s lawsuit against it.
By the way: After Judge Kahn allowed Taylor to pursue his claim of unfair competition, Twitter was so frightened about what might happen next that it appealed directly to the California Supreme Court - which then, without allowing Taylor’s attorneys to present arguments, issued a six-page ruling telling Kahn to reverse his ruling and dismiss the case.
True story.
Added bonus: Twitter argues that allowing me to make factually accurate tweets about Covid might upset the community, or something.
Meanwhile, right now on Twitter, you can watch a woman in New York get her head crushed by an SUV, as almost 600,000 people have in the last two days. (Be careful with this, it is awful.)
I don't have a twitter account and I never will but if all the true Americans deleted their Twitter account all social media platforms would get the message
IMHO, there are two fundamentally different issues in play here.
1) Does Twitter have the right to be arbitrary and capricious with respect to who it allows on it's platform?
2) How and to what extent are public officials (from the White House on down) putting pressure on Twitter to de-platform certain voices?
I'm only tangentially interested in #1, but am keenly interested in #2. I don't believe for a moment that the tech giants are operating in a vacuum. I believe they are operating in an environment of "official pressure". I believe the government (at multiple levels) is plainly violating the First Amendment by outsourcing their censorship to nominally private companies.
if you don't want us to argue over the irrelevant point of whether or not jared taylor is a white supremacist, maybe don't unnecessarily insult him by calling him a white supremacist.
“ can we please not argue if he is a white supremacist? It’s irrelevant to this discussion).”
Why bring it up then? I don’t know one way or the other but labeling just is asking for discussion. Maybe say allegedly or “twitter claimed”? Hopefully he isn’t.
Well, I see the POINT you are making and is valid of course, and we have long supported you, but YOU called Taylor a "white supremacist" yourself so that invites debate over it. Don't do that and then forbid anyone to argue with you! Prompted me to research the guy some. He MIGHT be, I'd have to look more carefully (but the REASOn they say he is right off the bat I saw --that he says there are differences between races, health differences and more --just like dog breeds--does not make him one. If I find he thinks one is SUPERIOR to another, then I will agree with you). Not the point here, whether he is one or not. I agree. It's how you said this that is the point! If you didn't want anyone to argue over it, you should have phrased that differently. Such as "he has been called or known as." And you could have qualified that more with "possibly with good reason." But you didn't. So I would imagine you might get someone taking exception to it possibly. So you probably brought that on yourself. You sometimes speak without thinking, it seems.
"can we please not argue if he is a white supremacist? It’s irrelevant to this discussion" Then why call him an incendiary name that's used 100% of the time to cast people as heretics? It's the race version of "anti-vaxxer."
In a world that allows financial institutions to close your accounts and ban you because of what you stand for, that shuts down businesses for any reason at all, that forces experimental injections on its citizens, even after it knows it is killing hundreds of thousands, that takes away parents rights to make decisions over their children's education and health, that makes it illegal and punishable by imprisonment to speak against the government or its captured institutions, is more than likely to let a company like Twitter cancel speech as it sees fit. In fact, that is even better -----getting "private" industry to do its dirty work.
I love that you're fighting it and you have to do it regardless, but I will be shocked if you win. Another poster is right. The only way to fight back is to cancel Twitter. Get off.
“Twitter argues that allowing me to make factually accurate tweets about Covid might upset the community, or something.”
When commenting on an earlier thread, this is exactly what I suggested we would see argued: truthfulness would be no defence.
This, as Weinstein pointed out over the weekend, is the checkmate in the totalitarian game against free speech being played by our federal government. They even have a word for it: mal-information. “Truth without Context” and we all know who and what provides acceptable “context” that won’t “upset the community.” These are perilous times.
Please start posting on Gettr. You may see it as the island of misfit toys, but it's an alternative and need to vote with your feet. I have deactivated my account on Twitter and miss some of the people I was following, but the misfits on Gettr are pretty good and the number is growing.
Can they ban gay or black people? Of course. All they have to do is call them a "white supremacist." (There are, perhaps, three "white supremacists" left in America, for real, but the label seems to work when you need to demonize someone.)
Twitter either needs to decide what it is or the Congress should address the matter. The argument Twitter made in the case cited was the argument a publisher would make, not a purveyor of a public square. So if Twitter sees itself as essentially a publisher able to decide what it will or will not publish, then it should become liable to be sued under the same conditions publishers can be sued. Twitter should not be allowed to be on both sides of this situation.
I deleted my Twitter when they had the audacity to ban our President. Like him or not, that was the last straw for me. I hope you win Alex, because it would be a win for all. I’ll never go back to Twitter; we have alternatives now.
It's pretty hilarious (but not in a funny way) for me to see minority groups claim that if government isn't doing the discriminating, it's okay. I'm old enough to remember when gays were getting bashed, and my parents are old enough to remember when blacks were getting hung. Trusting that 'the leaders' and their minions will always have your back is a foolish decision.
Alex's Twitter fight reminds me of parents fighting school boards to reopen schools that attack their kids with CRT and covid policies. Why are we fighting so hard to get back onto or into these broken institutions? Seek alternative solutions.
I care about your case Alex Berenson. I am also curious about how, if any, much of a role the Smith-Mundt Modernization Act of 2012 plays a role. Is Twitter inconspicuously admitting that its doing the US governments work for them? The law, passed in 2013, allows "Propagandizing Americans," essentially removing the ban of propagandizing that was instituted in 1948 with the original Smith-Mundt Act.
Which of course is NOT the same as FREE SPEECH protection, of course. Just curious if somehow its related. Other industries, like the real estate associations, because of the DOJ, said it will accept complaints on personal social media accounts if there is "hate" speech. Its a super slippery slope if you actually look at the verbiage used in the policy 😖
So long as they have Section 230 protection, neither Twitter nor Facebook will bend. What's the point? They're not being punished or held to account in any way. What we NEED is an overhaul in Congress—people with a spine who are not on the dole of Big Pharma and Big Tech. We need a government that seeks to ensure the Bill of Rights is upheld for ALL Americans, not letting Big Tech snuff out the voices who disagree with their socialist/leftist leanings.
I thought the whole point of Twitter was to enable dissidents to spread their message of truth, helping them topple repressive regimes. Am I missing something here?
Twitter needs to stop being allowed to hide behind section 230. It protects a provider against claims from the removal of objectionable, harassing, material, etc., as long as the removal is in "good faith." Good faith is never defined, and there's no settled case law on it, so it really depends on the judge's interpretation. But considering that Twitter is now leaving up accounts and posts linking to the Freedom Convoy donor list - private information gained through a hack, which is explicitly against their TOS, and the reason they banned the Hunter Biden laptop story - I think it's hard for a non-partisan to argue they're acting in good faith.
I was listening to the most recent Darkhorse podcast (begin 1:06:00) last night and Bret & Heather referenced the 2012 Omnibus NDAA bill signed by Obama on 12-31-2011. It had two additional provisions: 10.21, 10.22 that Bret surmises may end the US Constitution. "These provisions allow indefinite detention, without charge or trial, of any person, including American citizens, picked up anywhere on earth, for effectively engaging in terrorism or supporting those who do....Terrorism is a magic word. When the executive branch uses that term, they are declaring your rights null and void."
So, if we are all terrorists according to the "mis- dis- and mal-information DHS terrorism bulletin (see Alex's "Join me. Become a terrorist threat."), it would seem that thanks to Obama we could all be disappeared until the end of hostilities. And who really thinks hostilities will ever end.
I left Twitter and Facebook because off censorship....why anyone is still there is beyond me....if everyone left these bias, commie sites they would fold...
I deleted my account 2 years ago. It was a waste of time. All the things Alex said about covid vaccines were backed up by data. He was banned because he was on the wrong side of the official narrative from the WH, not because his statements were misinformation.
They stole my data and continue use long after I was permanently banned for tweeting request for class action attorneys regarding the “throttling” of a contracted “utility” service (legal precedent already established) due to secret shadowbans (throttling)…
Their answer, I was openly permanently suspended using the false excuse of ONE tweet calling Brett Baier a “media whore”…
Alex is absolutely right to devote time to the censorship issue and Twitter lawsuit. It goes hand in hand with the virus, mandates etc. the most frightening part of all of this to me is the censorship and outright suppression of dissent - we can overcome the virus, overcome the actual and potential harms of the MRNA experiments, but if we lose our freedoms ....
Absolutely agree with you. Banning you and banning President Trump from Twitter—same thing. It’s like saying you can’t stand on the sidewalk and share an opinion. The air waves belong to the almighty government mob and shall not be used for transmitting sounds that don’t conform.
There is a lot of nuance and detail to this case that I cannot speak to but on the narrow question of can a private company or person "abridge" someone's "freedom of speech" the answer surely is "yes." Is Twitter truly a private company or is it a common carrier? Do federal laws mandate that it provide equal access? Might it be established to be some sort of a quasi-governmental entity given its entanglements with liberal/progressive politicians.? Etc., etc. Go make some new case law, Alex, and good luck. I just hope that in the process we don't mess up established first amendment law because if some guest at my house starts spouting nonsense and I want them to leave, I don't want to be told I can't do that because the nutcase has "freedom of speech."
Until there is an alternative to Twitter for us to be able to follow voices like Daniel Horowitz and Jeffery Tucker, I'll continue using it.
That said, Congress needs to define whether Twitter is a publisher or not. Obviously it is and if so, it can ban whomever it wants but at the expense of losing its Section 230 protections.
Why would anyone be on these platforms? 🙄 "Never argue with an idiot. They will only bring you down to their level and beat you with experience." Mark Twain. 🤷🏼♀️
This is WAY more important than facts about the toxic jab, which people will understand one at a time even under the current censorship. If people are to ever know the truth about anything, then you HAVE to win this fight. Godspeed!
I don't have a twitter account and I never will but if all the true Americans deleted their Twitter account all social media platforms would get the message
IMHO, there are two fundamentally different issues in play here.
1) Does Twitter have the right to be arbitrary and capricious with respect to who it allows on it's platform?
2) How and to what extent are public officials (from the White House on down) putting pressure on Twitter to de-platform certain voices?
I'm only tangentially interested in #1, but am keenly interested in #2. I don't believe for a moment that the tech giants are operating in a vacuum. I believe they are operating in an environment of "official pressure". I believe the government (at multiple levels) is plainly violating the First Amendment by outsourcing their censorship to nominally private companies.
if you don't want us to argue over the irrelevant point of whether or not jared taylor is a white supremacist, maybe don't unnecessarily insult him by calling him a white supremacist.
The California Supreme Court operates just like the Politburo. COVID response is our Chernobyl.
“ can we please not argue if he is a white supremacist? It’s irrelevant to this discussion).”
Why bring it up then? I don’t know one way or the other but labeling just is asking for discussion. Maybe say allegedly or “twitter claimed”? Hopefully he isn’t.
Well, I see the POINT you are making and is valid of course, and we have long supported you, but YOU called Taylor a "white supremacist" yourself so that invites debate over it. Don't do that and then forbid anyone to argue with you! Prompted me to research the guy some. He MIGHT be, I'd have to look more carefully (but the REASOn they say he is right off the bat I saw --that he says there are differences between races, health differences and more --just like dog breeds--does not make him one. If I find he thinks one is SUPERIOR to another, then I will agree with you). Not the point here, whether he is one or not. I agree. It's how you said this that is the point! If you didn't want anyone to argue over it, you should have phrased that differently. Such as "he has been called or known as." And you could have qualified that more with "possibly with good reason." But you didn't. So I would imagine you might get someone taking exception to it possibly. So you probably brought that on yourself. You sometimes speak without thinking, it seems.
"can we please not argue if he is a white supremacist? It’s irrelevant to this discussion" Then why call him an incendiary name that's used 100% of the time to cast people as heretics? It's the race version of "anti-vaxxer."
In a world that allows financial institutions to close your accounts and ban you because of what you stand for, that shuts down businesses for any reason at all, that forces experimental injections on its citizens, even after it knows it is killing hundreds of thousands, that takes away parents rights to make decisions over their children's education and health, that makes it illegal and punishable by imprisonment to speak against the government or its captured institutions, is more than likely to let a company like Twitter cancel speech as it sees fit. In fact, that is even better -----getting "private" industry to do its dirty work.
I love that you're fighting it and you have to do it regardless, but I will be shocked if you win. Another poster is right. The only way to fight back is to cancel Twitter. Get off.
Any journalist who cares about the fundamentals of the profession - as well as any person who believes in freedom - must fight and resist censorship.
Sounds like Twitter are using the same reasons legislators are proposing to remove freedom of speech in multiple countries.
https://nakedemperor.substack.com/p/rip-freedom-of-speech?r=raurr
Absolutely it does. ... need to be fought.
Absolutely it does ... need to be stopped.
“Twitter argues that allowing me to make factually accurate tweets about Covid might upset the community, or something.”
When commenting on an earlier thread, this is exactly what I suggested we would see argued: truthfulness would be no defence.
This, as Weinstein pointed out over the weekend, is the checkmate in the totalitarian game against free speech being played by our federal government. They even have a word for it: mal-information. “Truth without Context” and we all know who and what provides acceptable “context” that won’t “upset the community.” These are perilous times.
“I mean, Twitter would never ever do that.
BUT…”😂 Go Alex! 👦🏻🏹🐦
Please start posting on Gettr. You may see it as the island of misfit toys, but it's an alternative and need to vote with your feet. I have deactivated my account on Twitter and miss some of the people I was following, but the misfits on Gettr are pretty good and the number is growing.
Can they ban gay or black people? Of course. All they have to do is call them a "white supremacist." (There are, perhaps, three "white supremacists" left in America, for real, but the label seems to work when you need to demonize someone.)
Twitter either needs to decide what it is or the Congress should address the matter. The argument Twitter made in the case cited was the argument a publisher would make, not a purveyor of a public square. So if Twitter sees itself as essentially a publisher able to decide what it will or will not publish, then it should become liable to be sued under the same conditions publishers can be sued. Twitter should not be allowed to be on both sides of this situation.
I deleted my Twitter when they had the audacity to ban our President. Like him or not, that was the last straw for me. I hope you win Alex, because it would be a win for all. I’ll never go back to Twitter; we have alternatives now.
It's pretty hilarious (but not in a funny way) for me to see minority groups claim that if government isn't doing the discriminating, it's okay. I'm old enough to remember when gays were getting bashed, and my parents are old enough to remember when blacks were getting hung. Trusting that 'the leaders' and their minions will always have your back is a foolish decision.
So, Twitter says they have the right to ban certain people but that they never, ever would. And yet they do!
Meanwhile, Canada has became totalitarian dictatorship with the warlord Trudeau-Castreau in charge.
Alex's Twitter fight reminds me of parents fighting school boards to reopen schools that attack their kids with CRT and covid policies. Why are we fighting so hard to get back onto or into these broken institutions? Seek alternative solutions.
I care about your case Alex Berenson. I am also curious about how, if any, much of a role the Smith-Mundt Modernization Act of 2012 plays a role. Is Twitter inconspicuously admitting that its doing the US governments work for them? The law, passed in 2013, allows "Propagandizing Americans," essentially removing the ban of propagandizing that was instituted in 1948 with the original Smith-Mundt Act.
Which of course is NOT the same as FREE SPEECH protection, of course. Just curious if somehow its related. Other industries, like the real estate associations, because of the DOJ, said it will accept complaints on personal social media accounts if there is "hate" speech. Its a super slippery slope if you actually look at the verbiage used in the policy 😖
So long as they have Section 230 protection, neither Twitter nor Facebook will bend. What's the point? They're not being punished or held to account in any way. What we NEED is an overhaul in Congress—people with a spine who are not on the dole of Big Pharma and Big Tech. We need a government that seeks to ensure the Bill of Rights is upheld for ALL Americans, not letting Big Tech snuff out the voices who disagree with their socialist/leftist leanings.
As with any government Orwellian paradox, the Comm. "Decency" Act is the core of the problem.
I hate Twitter and the psychopaths that run and profit from it. But, they are only using the tools that the fed's gave them.
Fine. Take on the twitters of the world. But at some point We the PEOPLE must take on the source of all this insanity, government.
I thought the whole point of Twitter was to enable dissidents to spread their message of truth, helping them topple repressive regimes. Am I missing something here?
https://duckduckgo.com/?q=twitter%20arab%20spring
Twitter needs to stop being allowed to hide behind section 230. It protects a provider against claims from the removal of objectionable, harassing, material, etc., as long as the removal is in "good faith." Good faith is never defined, and there's no settled case law on it, so it really depends on the judge's interpretation. But considering that Twitter is now leaving up accounts and posts linking to the Freedom Convoy donor list - private information gained through a hack, which is explicitly against their TOS, and the reason they banned the Hunter Biden laptop story - I think it's hard for a non-partisan to argue they're acting in good faith.
Do we really have free speech anymore?
I was listening to the most recent Darkhorse podcast (begin 1:06:00) last night and Bret & Heather referenced the 2012 Omnibus NDAA bill signed by Obama on 12-31-2011. It had two additional provisions: 10.21, 10.22 that Bret surmises may end the US Constitution. "These provisions allow indefinite detention, without charge or trial, of any person, including American citizens, picked up anywhere on earth, for effectively engaging in terrorism or supporting those who do....Terrorism is a magic word. When the executive branch uses that term, they are declaring your rights null and void."
So, if we are all terrorists according to the "mis- dis- and mal-information DHS terrorism bulletin (see Alex's "Join me. Become a terrorist threat."), it would seem that thanks to Obama we could all be disappeared until the end of hostilities. And who really thinks hostilities will ever end.
I left Twitter and Facebook because off censorship....why anyone is still there is beyond me....if everyone left these bias, commie sites they would fold...
"(can we please not argue if he is a white supremacist? It’s irrelevant to this discussion)"
This is such cowardly slur. If you endorse it, defend it. If it's someone else's claim, scare-quote it.
I deleted my account 2 years ago. It was a waste of time. All the things Alex said about covid vaccines were backed up by data. He was banned because he was on the wrong side of the official narrative from the WH, not because his statements were misinformation.
They stole my data and continue use long after I was permanently banned for tweeting request for class action attorneys regarding the “throttling” of a contracted “utility” service (legal precedent already established) due to secret shadowbans (throttling)…
Their answer, I was openly permanently suspended using the false excuse of ONE tweet calling Brett Baier a “media whore”…
Alex is absolutely right to devote time to the censorship issue and Twitter lawsuit. It goes hand in hand with the virus, mandates etc. the most frightening part of all of this to me is the censorship and outright suppression of dissent - we can overcome the virus, overcome the actual and potential harms of the MRNA experiments, but if we lose our freedoms ....
YouTube is against free speech. Of course we already knew that, but here is YouTube's CEO.
https://twitter.com/disclosetv/status/1493988032566996993
Absolutely agree with you. Banning you and banning President Trump from Twitter—same thing. It’s like saying you can’t stand on the sidewalk and share an opinion. The air waves belong to the almighty government mob and shall not be used for transmitting sounds that don’t conform.
But, if a little small town baker refuses to bake a wedding cake for a gay couple because of their religious beliefs... ohhhhhhhhhhhhhhhh SCANDAL!
Hmmmmmmmmmmm.
There is a lot of nuance and detail to this case that I cannot speak to but on the narrow question of can a private company or person "abridge" someone's "freedom of speech" the answer surely is "yes." Is Twitter truly a private company or is it a common carrier? Do federal laws mandate that it provide equal access? Might it be established to be some sort of a quasi-governmental entity given its entanglements with liberal/progressive politicians.? Etc., etc. Go make some new case law, Alex, and good luck. I just hope that in the process we don't mess up established first amendment law because if some guest at my house starts spouting nonsense and I want them to leave, I don't want to be told I can't do that because the nutcase has "freedom of speech."
I absolutely stand with you! Keep up the good fight!
That 2nd to last sentence. Alex, you are on a roll!👏👏🙌
Until there is an alternative to Twitter for us to be able to follow voices like Daniel Horowitz and Jeffery Tucker, I'll continue using it.
That said, Congress needs to define whether Twitter is a publisher or not. Obviously it is and if so, it can ban whomever it wants but at the expense of losing its Section 230 protections.
Godspeed in this critical battle, Alex!!! 📣 📣📣
Keep fighting!!
Premeditated Genocide by the Medical Drug Cartel
https://lionessofjudah.substack.com/p/premeditated-genocide-by-the-medical?r=3mvl2
Pfizer Documents Show FDA Knew of Death Risk
https://lionessofjudah.substack.com/p/dr-michael-yeadon-this-must-stop?r=3mvl2
If they're a utility according to section 230 which immunized them from content prosecution, there should be no censorship.
This is bullshit.
America is a third world cesspool. My God look at that video.
And all the white supremacists that are attacking Asians too. Disgusting.
"Reporting Pfizer’s own clinical trial data? Not so much."
Twitter does not approve of the truth so it is banned.
Enes Kanter Freedom cut from NBA. With everything going on in this world now, freedom of speech may just be officially over. Disastrous!
Humans are garbage.
After I saw Rasputin testifying in from of Congress I deleted my account and never looked back.
Why would anyone be on these platforms? 🙄 "Never argue with an idiot. They will only bring you down to their level and beat you with experience." Mark Twain. 🤷🏼♀️
This is WAY more important than facts about the toxic jab, which people will understand one at a time even under the current censorship. If people are to ever know the truth about anything, then you HAVE to win this fight. Godspeed!