What happens next in Berenson v Gottlieb (nee Berenson v Biden)

We are taking our case to the Second Circuit, the federal appeals court for New York. We believe that unvaccinated people have the right to speak to each other - and hope the judges will agree.

Can top Pfizer officials conspire with the government to censor the unvaccinated? Do unvaccinated people have legal recourse against conspiracies to violate their Constitutional rights?

The Second Circuit Court of Appeals is about to face those issues head-on, as my legal battle over the conspiracy to force me off Twitter in 2021 continues.

I believe and hope the court will find the answer to both questions is no. (EDIT: ARRGH. OBVIOUSLY, I HOPE AND BELIEVE THE ANSWER TO THE SECOND QUESTION IS YES! WE WILL DO A BETTER JOB IN THIS FRAMING IN OUR BRIEF, I PROMISE!)

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(Still fighting, with your help.)

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When I filed Berenson v Biden in 2023, it included three groups of defendants — the federal government, Andrew M. Slavitt, and two top Pfizer officials, director Dr. Scott Gottlieb and chairman Dr. Albert Bourla (aka the world’s favorite veterinarian).

Last year, Manhattan federal Judge Jessica G.L. Clarke dismissed the lawsuit, setting up our appeal to the Second Circuit, which oversees district courts in New York, Connecticut, and Vermont. We filed our appellate brief in February.

In the last few months, James Lawrence and I have whittled down the case, settling with the government and with Slavitt (and other non-Pfizer individual defendants who once worked for the Biden Administration).

This choice paid big dividends.

We have won a crucial admission from the government about its “substantial coercive pressure” to censor me and violate my First Amendment rights. We have also simplified the case, reducing the number of legal battles we must fight (and defense lawyers looking to poke holes in our arguments).

Now only Gottlieb and Bourla remain as defendants.

And they and their legal team are arguing I should not be allowed to hold them accountable for their role in the conspiracy in 2021 to force me off Twitter.¹

As private individuals, Gottlieb and Bourla cannot directly violate my First Amendment rights — or the rights of the millions of unvaccinated people who lost the chance to listen to me in 2021 when they helped coerce Twitter to ban me. But a federal law commonly called 1985(3) bars conspiracies to violate civil rights, particularly when those conspiracies involve both government and private conspirators, as this one did.

The law dates to 1871. Both it and the legal decisions it has spawned over the last century are complex, to say the least.

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(Scott Gottlieb, MD. Too bad I can’t sue him for abuse of hair gel!)

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As a federal judge in Manhattan wrote in 1993, “The best that can be said of §1985(3) jurisprudence thus far is that it has been marred by fits and starts, plagued by inconsistencies, and left in flux by the Supreme Court.”

Indeed, the Supreme Court has offered only vague limits on what groups can sue under 1985(3) claims, instead setting parameters for groups the statute does not protect. Federal courts have been concerned 1985(3) not become a “general federal tort law” used to settle broad legal disputes.

In practice, this guidance means, as the Third Circuit Court of Appeals wrote in 2006, “1985(3) defendants must have allegedly conspired against a group that has an identifiable existence independent of the fact that its members are victims of the defendants’ tortious conduct.”

Put another way, the right that’s been violated must exist independently of the group.

In 1993, the Supreme Court found that “women seeking abortions” could not claim their civil rights had been violated under 1985(3) — because the seeking of abortions is what defines the group asking for protection.

Berenson v Gottlieb clearly meets the broad test the Supreme Court has set.

The group for which I’m seeking protection is the Covid unvaccinated; the right at stake is the First Amendment right to speak, which encompasses the right to listen, and which the government has now admitted was violated in my case. The group can be defined independently of the right that was violated, and vice-versa.

The question, then, is not whether I am bringing a theoretically viable 1985(3) claim, but whether the statute covers unvaccinated people at all. In a brief filed last week, Gottlieb and Bourla claim it does not. James Lawrence and I have identified specific flaws in their arguments we will address in our response, but I am not going to tip our hand to those until we file.

At stake in our case is a much broader issue.

Some federal circuits have defined the groups which can sue under 1985(3) very narrowly. The Fifth Circuit, which covers Texas, Louisiana, and Mississippi, has said only black people can claim its protection.

Other federal appellate courts have defined the statute’s reach much more broadly. As the Third Circuit, which includes Pennsylvania, explained in 1997:

We remain convinced that the scope of section 1985(3) is not fixed as of any given point in time, but must be subject to reinterpretation as times and circumstances require… community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection.

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(We didn’t suspend the Constitution for this. And we didn’t suspend it for Covid.)

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And no circuit has interpreted the scope of 1985(3) protection more broadly than the Second Circuit. At various times, its judges have extended its reach to mentally disabled people, women, “street artists,” same-sex couples, Jews, and members of the Falun Gong cult, among others.

In a 2015 decision that found a group of Arab and Muslim men who had been detained after Sept. 11 could sue under 1985(3), the Second Circuit wrote:

If there is one guiding principle to our nation it is the rule of law. It protects the unpopular view, it restrains fear-based responses in times of trouble, and it sanctifies individual liberty regardless of wealth, faith, or color.

Amen.

Under their own precedents, the Second Circuit judges hearing this appeal will have a clear path to extend 1985(3) to people unvaccinated against Covid. The judges themselves may be vaccinated against Covid — in fact, they almost certainly are. They may think the unvaccinated are stupid or foolish.

But that does not mean the unvaccinated don’t have the same First Amendment rights as everyone else, or that the conspiracy to deny them — and me — those rights was legal.

I can only hope the Second Circuit agrees.

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(To support Unreported Truths, my fight against Pfizer, and all my work)

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Also, as you know, the federal government paid $150,000 to settle its part in Berenson v Biden, so the lawsuit is paid off for a while.

But if you want to support this appeal, and (if the Second Circuit backs us) the fight with Gottlieb and Bourla at the district level that will follow, I am happy to have you!

Via GiveSendGo

Via GoFundMe

You can also Venmo me at Alex-Berenson-3

Or send a check to James Lawrence at Envisage Law, PO Box 30099

Raleigh, North Carolina 27622

Donations of all sizes welcome — this is about standing together.

1. I am also suing them for “tortious interference” with my contract with Twitter - essentially pushing Twitter to violate its contract with me. I would obviously welcome the chance to pursue that count of the lawsuit too, but it does not have the broad implications of the 1985(3) claim.