What happened at the Supreme Court Monday, and what it means for Berenson v Biden - and free speech

Don't worry, the First Amendment isn't dead yet. But my lawsuit now looks like its best bet - and I may need your help.

On Monday, the Supreme Court heard two cases vital to the future of the First Amendment - and Berenson v Biden, my lawsuit against the White House and Pfizer officials for their conspiracy to force Twitter to ban me in 2021.

The first, Murthy v Missouri, came out of broad federal efforts to monitor and suppress “misinformation” on social media. The second, NRA v Vullo, looks specifically at whether the state of New York overreached when it leaned on insurers to stop doing business with the National Rifle Association.

Both cases may impact my suit. In fact, the two cases are so vital to it that on Tuesday federal Judge Jessica G.L. Clarke, who is hearing it, officially delayed it until after the Supreme Court decides them.

Based on how the justices handled oral arguments, the court seems on track to rule for the government in the Missouri case but also in favor of the NRA, overturning appellate courts in both cases.

Free speech advocates may see that outcome, if it occurs, as a lost opportunity and wish the court had done more to stop officials from trying to censor social media.

But for Berenson v Biden, a split may be (nearly) as good as two wins. In fact, the NRA decision may be more important, because the defendants in my case rely heavily on the Second Circuit’s misguided opinion in it as a shield. (The Second Circuit is the federal appeals court for New York, where Berenson v Biden is filed.)

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(Stand with me. Stand for free speech. Stand up to Pfizer and the Biden Administration. All for 20 cents a day.)

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The dismay of speech advocates at the Supreme Court’s seeming unwillingness to examine the constitutionality of the federal censorship regime is understandable.

But they’re ignoring one vital point. Courts interpret law. They do not make it.

To win their lawsuit, the plaintiffs who brought the Missouri case (which was originally called Missouri v Biden) can’t just allege that the government’s actions were ill-considered, illegal, or even unconstitutional.

They must show exactly how the federal pressure on social media companies injured them - and how a court ruling could remedy those injuries. Without that evidence, they lack what lawyers call “standing” - a reason to bring their complaint to court.

So the specifics of the Missouri opinion, when it arrives (likely in June), will matter deeply to the lawsuit I filed last April against President Biden and officials at the White House and Pfizer, over their conspiracy to make Twitter ban me in 2021.

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(Berenson v Biden. And Slavitt, don’t forget Slavitt. And the rest of ‘em too.)

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If the Supreme Court simply rules in the Missouri case that the plaintiffs lacked standing, Berenson v Biden should be mostly untouched. I have a particular injury, my ban from Twitter, and I have presented specific facts to show that the plaintiffs’ actions caused it and the strikes that caused it.

However, if the Supreme Court goes further than the standing issue and rules that it doesn’t see anything wrong in general with government contacts with social media companies, the defendants in my case will surely cite that ruling to claim the Supreme Court has blessed their conduct. (In turn, James Lawrence, my bulldog lawyer, will respond that my case is still distinguishable - and it is, none of the Missouri plaintiffs were specifically targeted, as I was. Wheels within wheels.)

But however the court decides the Missouri case, its NRA ruling will be vital.

And on that front, the news is strong.

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(Don’t take it from me, take it from my former employer (how they love it when I call them that!))

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Why does the NRA case matter so much?

The suit turns on the issue of whether New York state’s financial regulators unfairly coerced insurers to stop offering policies to the group in an effort to punish the NRA for its advocacy of gun rights. The NRA alleged a pattern of conduct, including both public statements and private meetings by state.

The trial judge who initially heard the suit said it could proceed. But the Second Circuit reversed that decision and granted a motion to dismiss, finding the NRA had “failed to plausibly allege that [the state] ‘crossed the line ‘between attempts to convince and attempts to coerce.’”

The ruling was striking because it came despite a 2003 Second Circuit decision called Okwedy v Molinari. In that case, the appellate court found a Staten Island lawmaker had violated the First Amendment when he pushed a company to take down a billboard with an anti-gay slogan. The Okwedy judges, including Sonia Sotomayor, now on the Supreme Court, explained:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights even if the public-official defendant lacks direct regulatory or decisionmaking authority over the plaintiff or a third party that facilitates the plaintiff's speech. [emphasis added]

Naturally, James Lawrence and I relied heavily on the Second Circuit’s Okwedy precedent in my lawsuit. The defendants leaned on its Vullo decision.

But if the Supreme Court strikes down Vullo, its new ruling - and Okwedy - will take center stage. And Okwedy’s plain language makes clear that threats are enough, even if an official doesn’t have the power to carry them out carry them out.

In fact, even the Justice Department itself went even further towards our view of the law in a brief it filed in the Vullo case in January. In the filing, the Justice Department wrote that the crucial line to determine whether the government has violated the First Amendment was whether the “challenged conduct, viewed objectively and in context, conveys a threat of adverse government action.” [emphasis added]. "

Those five words may prove crucial to my case. Why?

First, the word “conveys” is vital. If the Supreme Court adopts it, it suggests that an open threat from the White House to Twitter was not necessary - the suggestion or “conveyance” of a threat was enough.

Further, the phrase “in context” suggests that the court should consider the entire pattern of the government’s behavior toward the companies it is coercing - from the April 2021 meeting at which Andrew Slavitt, senior advisor to the Covid response, asked Twitter a “really tough question” about why I had not already been banned through the summer 2021 public pressure campaign that included White House threats to remove their crucial Section 230 liability protection.

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So. Keep your fingers crossed.

And I hope you’ll consider making a donation to our legal fund. With the Missouri case looking like it will go against the plaintiffs, Berenson v Biden may be the best hope free speech has. And I can promise you this: as soon as the Supreme Court rules in the Missouri and NRA cases, the fight will get interesting - and expensive.

You can donate through GiveSendGo here

Or, if you happen to prefer it, GoFundMe here

Or Venmo me at Alex-Berenson-3, with the last four digits of my phone 1745.

Or send a check directly to Envisage Law at 2601 Oberlin Rd # 100, Raleigh, NC 27608. Just make sure you address it to James Lawrence and note it’s for Berenson v Biden.

Any contribution, small or large, makes a difference. After all, we’re only up against the entire federal government - and one of the world’s most powerful companies.

I like our chances.