Mr. Berenson Goes to Washington

Tomorrow, I get to testify about Berenson v Biden and federal censorship pressure on social media before Senator Ted Cruz and the Commerce Committee. I'd be lying if I said I wasn't excited.

It only took four years.

And two lawsuits, which so many of you graciously supported.

And two rounds of help from Elon Musk.

And a perfectly timed article from the indispensable Matt Taibbi.

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(And all of you — from monthly members to founding members. I couldn’t do this without you. And I am so grateful for your support.)

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But, finally, one of the most powerful people in Congress has gotten interested in Berenson v Biden — and in doing something to protect the First Amendment at a time when it is under extraordinary pressure.

On Wednesday morning, I’ll be a witness at a Senate Commerce Committee hearing chaired by Sen. Ted Cruz about federal pressure on social media companies. (The hearing has the memorable title of “Shut Your App” and will be viewable on the Commerce Committee Website and YouTube.)

The committee asks witnesses not to release their opening statements until the hearing begins, so I cannot tell you exactly what I’m going to say yet. But as you can imagine, I’ll be talking about Berenson v Biden, how the Biden White House and Pfizer officials worked together to censor me — and how, despite the evidence I’ve accumulated, Judge Jessica G.L. Clarke dismissed my lawsuit last week.

Not because I couldn’t show that my rights were violated. As Judge Clarke wrote in her ruling, the federal defendants had “effectively concede[d] an underlying First Amendment violation.”

But as the law now stands, federal officials and the federal government do not have to pay money damages if and when they violate the First Amendment rights of American citizens. State and local officials may be on the hook, but federal officials do are not. And so Judge Clarke found that because I cannot win damages, I “cannot assert [my] First Amendment claim” and thus she had to dismiss it.¹

Obviously, this is a huge gap in the law — and only the Supreme Court and Congress have the power to change it.

Until they do, journalists — and all Americans — will face the risk that federal officials will press for censorship of tweets like this:

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And that’s wrong, whoever’s in the White House.

With luck, the path to fixing it will start tomorrow.

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(And you can help!)

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DC, here I come.

1. Because Joe Biden is no longer President, an injunction telling him not to violate my rights — the other form of relief I could get — would be pointless.