Berenson lawsuit against Twitter tests government coercion claims
Success likely comes down to court’s view of “entwinement”
Berenson’s complaint quotes Jen Psaki’s announcement that “we are in regular touch with these social media platforms, and those engagements typically happen through members of our senior staff.” … Psaki went on to say that the government was “flagging problematic posts for Facebook that spread disinformation,” and the complaint suggests that, in July 2021, the federal government also flagged “problematic posts” for Twitter, including posts by Berenson. If true, that’s a confession.
Alex Berenson, otherwise known around here as the pandemic’s rightest man, or at least as near to rightist as you can be, has filed a lawsuit against Twitter for permanently banning him last year, and it is perhaps the best case yet to test conservative arguments that social media censorship, or at least much of it, violates the First Amendment.
So the argument goes, social media giants are guilty of free-speech constitutional violations because they are either being compelled by the government to censor, or are in league with the government to do so. That transforms them into state actors—surrogates to accomplish for the government what the government cannot do directly by itself.
Liberals see it the other way. They argue on behalf of large corporations to be able to restrict, regulate, and otherwise censor political speech any way they want precisely because they are private companies, and political affiliation is not a protected class. It’s a massive—and selective—sea change in liberal thinking.
Berenson’s lawsuit provides the best window into the conservative line of reasoning, and how the courts might view it. That being said, Berenson, who filed the case in California, makes a number of claims unrelated to the coercion/coordination argument, namely that Twitter violated California’s unfair competition laws, as well as the California constitution, and he also argues breach of contract, among other things.
It’s not quite the kitchen sink approach but close. But there’s nothing wrong with throwing everything up to see what sticks, and he has strong arguments in several of those areas.
Nonetheless, the claim that Big Tech is engaging in unconstitutional censorship as a state actor is the argument most observers are watching, for it is the one with the potential to have the broadest impact on social media companies’ ability to shut down speech that they and the government don’t like.
Unfortunately, I’m not wild about the prospects for the claim, and for two reasons. First, while the case is certainly more than circumstantial, it’s not yet clear that there is an actual smoking gun that Twitter colluded with the government to specifically ban Berenson, and, without it, the lawsuit almost certainly needs the court to adopt a dubious theory known as “entwinement,” which I dig into in a moment. The court has adopted such a theory once before, but it’s highly unlikely this court will.
Second, even if Berenson were to prevail, the facts as argued would likely require the court to issue a narrowly drawn decision that would apply to his censorship but would not find that Big Tech and the government are in cahoots in a broader campaign of viewpoint censorship. Without such a ruling, the case won’t really move the legal needle very much, if at all.
That’s not to say the lawsuit is frivolous or unworthy; just the opposite because even a narrowly drawn victory would move the needle politically.
In other words, the right is screaming—justifiably—that Big Tech is engaged, at the very least, in a coordinated censorship campaign with the government, and it needs to stop. But all the hand-wringing about that censorship being a constitutional violation has led to placing too much emphasis on a judicial remedy that isn’t likely to come.
It is a constitutional violation, but I would argue that it needs and will take a political remedy, not just to stop the censorship but to keep the courts from undertaking an unnecessarily activist approach in litigating individual censorship claims down the road.
First, today let’s take a look at Berenson’s arguments and how likely they are to succeed. Later this week, I will examine, assuming he does succeed, how broadly or narrowly any decision is likely to be. Finally, I will explore the political landscape and what might be achieved without the courts, and why it might not be such a good idea to have the courts involved anyway.