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Update on Berenson v Biden: Is Elon Musk ready to take a huge step for free speech?
We've subpoenaed Twitter, asking it to turn over what it knows about the government and private efforts to censor me in 2021. Will Elon help us get to the truth?
A year ago, Elon Musk opened Twitter’s records so journalists could report on the extreme censorship pressure Twitter (now X) had faced under its old regime.
The Twitter Files, as they were called, were a key reason Musk spent $44 billion to buy Twitter. He and the project’s reporters (including me) hoped to show how governments and powerful third parties had twisted what Twitter users saw.
Instead, the Twitter Files petered out quickly. One reason was that the mainstream media insisted on viewing its revelations in partisan terms - somehow, being anti-censorship is now a conservative position.
But another was that Musk seemed leery of opening Twitter’s kimono too far, possibly because he feared lawsuits over privacy violations. The Files never reached the “C-suite,” the top executives who set Twitter policies. They contain complaints about tweets from mid-level bureaucrats, but not the contacts between the White House and Twitter executives like Jack Dorsey - or how those executives responded.
Now Musk has a chance for a do-over.
(And if you’re not a subscriber, you do too. Help me stand for free speech, for 20 cents a day.)
In late October, as part of Berenson v Biden, my lawsuit against the White House and top Pfizer officials for their conspiracy to censor me and force me off Twitter in 2021, we issued three “third-party subpoenas.”
A third-party subpoena in a civil lawsuit is similar to witness testimony in a criminal case. It is a demand for information directed not at the defendants but at outsiders who have relevant knowledge or documents.
Two of our subpoenas went to Twitter (aka X) and Cooley LLP - the law firm that represented Twitter in Berenson v Twitter, my December 2021 lawsuit against Twitter for banning me. (Last year, before Musk bought Twitter, Twitter and I settled that suit and Twitter acknowledged it should not have banned me.)
Most importantly, the subpoenas demand Twitter and Cooley turn over all materials they have about me and my suspension, including the defense file in Berenson v Twitter. (The third went to a person who helped Pfizer director Dr. Scott Gottlieb when he pushed Twitter to ban me.)
Again, we are not suing Twitter, Cooley, or the person who helped Gottlieb. We simply want them to give us information we know they have.
The private defendants in Berenson v Biden are desperate to keep these subpoenas from moving forward. They have already indicated to James Lawrence, who represents me in the case, they will try to quash them.
But they may not get far. After all, we aren’t demanding anything of the defendants. They don’t have to spend money or time searching their files.
Nor are these subpoenas intended to harass the defendants by causing problems for their business partners or people who know them. (For example, suppose we subpoenaed Dr. Albert Bourla’s neighbors demanding they tell us what they know about his movements. That request would be unreasonable - we would simply be trying to annoy the neighbors and thus Dr. Bourla.)
Further, these subpoenas are not a “fishing expedition,” in which we hope to find documents that may not even exist.
In fact, they are the opposite. We have tailored the subpoenas narrowly, and we know Twitter has documents that show internal debate at the top of the company about my suspension - documents that it did not turn over to me last year in Berenson v Twitter.
How do we know those documents exist? Because we have emails in which Twitter’s own lawyers discuss withholding information from me.
(A emailed discussion among Twitter’s lawyers in the summer of 2022, after the company settled Berenson v Twitter. “Sean” is Sean Edgett, Twitter’s general counsel. “Jim” is Jim Baker, his deputy.)
So. Elon Musk now has a choice.
As he told Joe Rogan two weeks ago, he is well aware of the governmental pressure Twitter faced before he bought it. He ever referred to it as a “state publication.”
(Yep, that’s Joe Rogan, talking over the most important free speech issues of our time. In a blonde fright wig.)
If Twitter does not contest the subpoena, the defendants in Berenson v Biden have little chance to stop it. And Musk will have a legally valid reason to - at last - give me everything Twitter has on my suspension, including those crucial files showing “debate and disagreement” inside Twitter’s “leadership.”
Doing so will mark a huge step forward in process that Musk began with the Twitter Files - and the broader fight for free speech online and in social media.
Over to you, Elon.
By the way, if you want to support Berenson v Biden (which is likely to get expensive soon), you can do so via GiveSendGo here
You can also send a check to James Lawrence’s law firm directly at Envisage Law, 601 Oberlin Rd # 100, Raleigh, NC 27608. Just indicate it’s for Berenson v Biden on the check.
Thanks for any help you can offer - and I have not forgotten that I owe you a drawing for the “Fauci & Gottlieb & Slavitt & Bourla” coffee cups!