We have filed our responses to the defense motions to dismiss in Berenson v Biden

I'm proud of them; they raise crucial legal and constitutional issues and show why our suit must move ahead. Let's hope federal Judge Jessica G.L. Clarke agrees.

Last month, I asked for your patience as we prepared responses to the defense motions to dismiss Berenson v Biden, my federal lawsuit over the conspiracy between White House and Pfizer officials to censor me in 2021.

You said you understood (and a lot of you signed up for the free book contest I still have to run). Thank you. Not having to worry about writing let me focus on helping James Lawrence, my lawyer, with the case.

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(And if you didn’t subscribe then, you can now! The contest -for 10 books and one awesome mug - is still open!)

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On Friday, we filed all three responses. Like the initial complaint, and the defense responses, they are a full meal, coming in at more than 100 pages in all.

But I want to highlight three points from them, one factual and two legal.

The factual point comes from an internal Twitter email that Elon Musk and X provided us in July. In it, Todd O’Boyle - a senior Twitter lobbyist - wrote his boss that he had just contacted “WH [White House], Andy [Andrew Slavitt], and Scott Gottlieb [Pfizer board member Dr. Scott Gottlieb]” as part of his effort “to keep the target off our back.”

O’Boyle sent that note on Aug. 24, 2021. Four days later - at the instigation of Dr. Gottlieb - he pushed through my permanent ban from Twitter, depriving me of a worldwide audience.

This is as close to a smoking gun as we could hope to find now, before “discovery” forcing the defendants to turn over their communications with each other. It shows both that O’Boyle feared the pressure he and Twitter faced and that he viewed the conspirators as a group acting together.

All by itself it is clear evidence of a public-private conspiracy to coerce Twitter and violate my First Amendment rights.

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(Progress as promised)

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Now to the legal issues that raise core constitutional and civil rights questions.

The first involves whether I should be allowed to sue for money damages for the government’s violation of my First Amendment rights. Believe it or not, federal law does not explicitly allow for such actions.

In 1971, in case called Bivens, the Supreme Court decided the Constitution did contain an inherent right to sue for damages for violations of the Fourth Amendment. It later extended that protection to the Fifth and Eighth Amendments. But more recently it has declined to extend Bivens protection further, including for First Amendment “retaliation” claims.

However, the court has also declined to overturn Bivens, and in a 2006 opinion it appeared to assume that money damages might be available for core First Amendment free speech claims (as opposed to “retaliatory” claims).

Unlike many other people who bring Bivens claims, I have no other way to hold the government officials who violated my rights accountable - that is, there are no administrative claims I can bring for damages for these First Amendment violations.

I hope the court will see that it should allow my Bivens claim to move forward and vindicate my rights.

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The second legal issue is even more important

And it doesn’t just apply to me. It involves a federal statute known as 1985(3), which allows people to sue for conspiracies to violate their civil rights - if the conspiracy is based on their membership in a certain class of people.

One key question is whether people who were not vaccinated against Covid are a protected class for purposes of 1985(3).

In fact, the classes that judges have founded worthy of 1985(3) protection have varied wildly over the years. In 2018, for example, a court in the Second Circuit (where I have sued) found members of the Falun Gong religious cult to be a protected class.

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(News for under 20 cents a day, legal analysis for free. And if you subscribe now, you can email me at signedpandemiacopy at gmail.com and enter the contest for, well, a signed book!)

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Just as importantly, my claim follows the correct framework for an 1985(3) claim. It comports with the a 1993 case in which the Supreme Court warned that 1985(3) classes should not be defined as groups “seeking to engage in the activity the defendant has interfered with.”

Berenson v Biden does not claim that the defendants “interfered with” the rights of Covid unvaccinated people to remain unvaccinated.

Rather, it alleges the defendants violated the First Amendment rights of unvaccinated people - a right that exists for everyone, outside of membership in the class.

In fact, on a podcast in July 2021, Andy Slavitt said:

And I think what needs to happen is I think Facebook and their peers, Twitter, everyone else they need to come together… and cut down on the amount of false information that people who haven’t been vaccinated see. [emphasis added]

Slavitt himself made the distinction: he only cared about preventing unvaccinated people from hearing or speaking information which he did not like.

We hope that Judge Clarke will see the strength and clarity of this distinction - and agree that unvaccinated people are what lawyers call a “cognizable” class worthy of protection. After all, Joseph Biden himself warned unvaccinated people, “Our patience is wearing thin.”

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There’s much more, in the our responses, and I’ll come back to them soon.

But for now it’s back to work. Been a bit of news the last few days. (You might have heard President-elect Trump picked someone to run Health and Human Services. I can’t remember his name. It’ll come to me.)

And, again, I thank you all for standing with me.

Onward.