URGENT: Twitter's own lawyers believed the company could not successfully defend its Covid vaccine censorship policies in court

A new Twitter Files leak shows the company's former leaders fought with each other over my summer 2021 ban; the new information may be crucial to Berenson v Biden

Twitter was likely to lose Berenson v Twitter, my federal lawsuit against the company for banning me over my mRNA vaccine reporting, Twitter’s lawyers concluded after reviewing internal documents related to the ban.

The documents, whose details remain secret but which the lawyers called “problematic” and “sensitive,” also show Twitter’s most senior executives disagreed over its decision to censor me in the summer of 2021.

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(HELP ME FIGHT CENSORSHIP.)

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The newly revealed secret debate inside Twitter’s former leadership highlights the still-unanswered question of whether Twitter banned me because it feared government or corporate retribution for allowing me to continue to publish on its site.

That issue is central to Berenson v Biden, the lawsuit I filed in April against the White House and Pfizer for allegedly conspiring to violate my First Amendment rights. It also impacts Missouri v Biden, which covers broader federal efforts to pressure many social media companies into censorship.

Exactly what the documents say is still unclear, since the lawyers describe them only generally. But they troubled the lawyers so much that the lawyers concluded Twitter should settle my lawsuit rather than risk the documents becoming public - even if the company had to agree to most of my demands to do so.

The documents are mentioned in two email chains in 2022 in which Twitter’s lawyers discussed my lawsuit against Twitter and its settlement.

The email chains, which include Twitter’s then-general counsel, Sean Edgett, were given to me by California journalist Michael Shellenberger. Shellenberger found them in Twitter’s internal records during his Twitter Files reporting.

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(The tweet that got me banned, August 28, 2021.)

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In 2020 and spring 2021, Twitter encouraged me to use my account to cover Covid and the mRNA jabs and defended my right to do so to critics.

But it abruptly reversed course in summer 2021, after federal officials demanded censorship and President Biden said social media companies were “killing people” by allowing their users to question the shots.

After warning me three times in July 2021, Twitter permanently banned me August 28, 2021 for allegedly violating its Covid-19 rules. At the time, I was a leading critic of potential mRNA jab mandates and my tweets on the safety and efficacy of the shots were viewed millions of times a day.

I sued Twitter four months later in federal court in San Francisco, alleging it had broken its own rules and violated my rights when it banned me.

In July 2022, Twitter and I settled my lawsuit. Twitter restored my account and admitted I hadn’t violated its rules. But Twitter has never explained why it censored me at all. The analysis its lawyers made suggests it did not believe it had a reason for doing so that could convince a jury.

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(No, Micah, thank you!)

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Karen Colangelo, Twitter’s head of global litigation, and Micah Rubbo, associate director for litigation, reached that conclusion after reviewing Twitter’s internal discussions about my ban, the May 2022 email chain shows.

Colangelo described the documents as “problematic” and “sensitive.” She and Rubbo recommended Twitter meet many of my settlement demands in the lawsuit to avoid handing them over. My settlement remains secret (though I have asked Elon Musk, who bought Twitter in October 2022, after the settlement was reached, for the right to publish it).

But according to the email chain, my demands included restoring my account, giving me special protection against future bans, turning over communications and complaints Twitter had received about me from outside sources, and allowing me to publish whatever it gave me.

The company faced a stark choice, Rubbo concluded in analyzing a potential settlement: “Are we willing to litigate and risk the potential public disclosure of *many* documents in order to prevent disclosure of some of them now?”

The decision was especially complicated because Twitter was still sorting through its files and didn’t know what all of them contained, Rubbo wrote.

The company was very concerned with giving me special protection, according to the email chain. But it ultimately believed it could find a solution by offering me access to a neutral arbitrator.

Twitter’s lawyers also considered if the company should simply “significantly increase our monetary offer and take reinstatement off the table,” but ultimately decided not to bother trying to buy its way out of the lawsuit “as money doesn’t seem to be the motivating force here.” (Good read!)

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(THINGS ARE GETTING INTERESTING.)

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In a separate August 2022 email, Rubbo explained the documents Twitter kept secret in the settlement with me reveal “debate and disagreement” among Twitter’s “leadership” over its censorship decisions. Lower-level employees in the company’s Trust and Safety unit, the division responsible for making most ban and censorship decisions, also disagreed about Twitter’s actions, according to the documents.

(Privileged? Maybe. Confidential? Not so much. Thanks, Elon! T&S stands for “Trust & Safety.’’)

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The May and August email chains became available because of Musk’s decision to open Twitter’s internal records to journalists to reveal the political and censorship pressures Twitter has faced. Those records and the articles about them are generally called the Twitter Files.

Michael Shellenberger, who has written several Twitter Files articles, discovered the emails as part of his research and gave them to me.

The documents Twitter provided to me in the settlement last year showed that both the White House and Pfizer board member Dr. Scott Gottlieb pressured the company over my reporting.

Those revelations became the core of Berenson v Biden, which I filed in April in federal court in New York, naming six defendants, including President Biden, Dr. Gottlieb, and Pfizer’s chief executive Albert Bourla.

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(One really tough question)

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But the newly revealed emails from Twitter’s lawyers suggest that when it turned over documents to me last year, Twitter used the narrowest possible definition.

The company appears to have included only internal discussions that occurred as a direct result of specific external communications. Did the company’s leaders or other employees discuss or debate how the overall censorship pressures Twitter faced in 2021 should affect my reporting and account?

If those documents exist, Twitter’s lawyers viewed them as not covered by the settlement and kept me and the world from seeing them.

For now.