From Berenson v. Gottlieb, handed down yesterday by Judges Pierre Leval, Richard Wesley, and Joseph Bianco:
Plaintiff-Appellant Alex Berenson is described as an independent journalist and the author of a book addressing the COVID-19 crisis. Berenson was an active user of Twitter during the pandemic, posting about, among other things, “the public policy response to COVID-19 and the vaccines.” See also Appellant’s Brief, which portrays Berenson as “a vocal critic of the public policy response to COVID-19, challenging the evidentiary basis for business and school closures.” Berenson’s Twitter following grew from roughly 7,000 in January 2020 to more than 229,000 by March 2021. He contends that there existed a conspiracy involving the Biden Administration and Pfizer executives “to pressure Twitter to suspend [his] account and mute his voice as a leading COVID-19 vaccine skeptic.” …
In May 2020, Twitter announced that it might attach labels or warning notices to tweets related to COVID-19 misinformation. Berenson tweeted that he was “concerned about what the new rules might mean for free speech on [Twitter].” In response, Brandon Borrman, Twitter’s Vice President of Global Communications, reached out to Berenson to discuss the new policy.
In December 2020, Twitter unveiled a new policy concerning COVID-19 vaccine misinformation, stating that it would begin removing Tweets that promote harmful or misleading narratives about COVID-19 vaccinations. Berenson contacted Borrman “seeking assurances that Twitter would continue to allow his reporting on COVID-19 vaccines.” Borrman allegedly replied that the “points [Berenson was] raising should not be an issue at all,” and that Berenson should contact him if he “ran into any issues.”
On March 1, 2021, Twitter announced a “five-strike policy” to combat COVID-19 misinformation. Under this framework, accounts receiving strikes faced progressively stronger sanctions: the first strike a warning, the second and third strikes each resulting in a 12-hour lock, the fourth strike a 7-day lock, and the fifth or subsequent strike a permanent suspension. The policy provided that, if a user “believe[s] that [their] account was locked or suspended in error, [the user] can submit an appeal.”
The following day, Berenson spoke with Borrman, who allegedly stated that “[Berenson’s] name has never come up in discussions around these policies,” and that Borrman would “try to ensure [that Berenson would be] given a heads up before an action is taken, but [that Borrman was] not always aware of them before they’re executed.”
Berenson asserts that members of the Biden Administration, Pfizer director and former FDA Commissioner Scott Gottlieb, and Pfizer CEO Albert Bourla repeatedly pressured Twitter to suspend his account, pointing to tweets that Twitter executives, including CEO Jack Dorsey and general counsel Vijaya Gadde, did not believe violated Twitter’s five-strike policy. Berenson received strikes in March, July, and August 2021, and his Twitter account was permanently suspended with the fifth strike on August 28, 2021.
Berenson brought suit, but the court rejected his federal civil rights conspiracy claim under 42 U.S.C. § 1985:
[Section] 1985(3) imposes liability on “two or more persons … [who] conspire … for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” A plaintiff must “show that some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action.” The Supreme Court has warned that Section 1985(3) should not be read as providing a federal remedy for “all tortious, conspiratorial interferences with the rights of others.” …
The Supreme Court has explained that the term “class”:
unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the [Section] 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under [Section] 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with. This definitional ploy would convert the statute into the “general federal tort law” it was the very purpose of the animus requirement to avoid.
Bray v. Alexandria Women’s Health Clinic (1993). Religious, gender, and racial discrimination “certainly fulfill[ ] the ‘class-based animus’ requirement of [Section] 1985(3).” In Keating v. Carey (2d Cir. 1983), we held that political parties are also protected groups under Section 1985(3). More recently, however, we have noted that, “after our decision in Keating, the Supreme Court [in United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott (1983),] suggested that the scope of [S]ection 1985 might not extend to include discrimination against political groups except where that discrimination was based on racial animus.” In any event, apart from political parties, we have clarified that protected classes under Section 1985(3) must possess “the type of inherited or immutable characteristics sufficient to satisfy the class-based animus requirement.”
Here, Berenson contends that the relevant class is a “class of Americans who had chosen not to receive a COVID-19 vaccine, a class of which [ ] Berenson is apart [sic].” See also id. (describing the class as “Americans who either had questions about the [COVID-19] vaccine or did not want to be forced to take a shot”). The district court correctly held that Berenson’s proposed class does not constitute a class for Section 1985(3) purposes. Instead, this is precisely the sort of class Bray cautioned against—a class made up of individuals who share a desire to engage in conduct, namely the decision not to receive a COVID-19 vaccine, which the defendants allegedly disfavor. To the extent Berenson argues that the class falls within the ambit of Section 1985 because it “includes a disproportionate number of African-Americans, political conservatives, and evangelical Christians,” we are not persuaded. Even if the composition of the alleged class is accepted as true, we have held that “plaintiffs cannot proceed under a disparate impact theory of liability in … claims brought pursuant to [Section 1985].”
The district court also correctly concluded, in the alternative, that assuming arguendo that people who were not vaccinated against COVID-19 constitute a protected category, Berenson did not adequately allege “that the defendants acted with class-based, invidiously discriminatory animus.” … In Gleason v. McBride (2d Cir. 1989), we affirmed the dismissal of a Section 1985 claim because the plaintiff “[did] not claim discrimination based on his political party affiliation,” but rather “alleged only that he was discriminated against because he was a political opponent of the defendants and was extremely vocal in his opposition to [them].”
Here, Berenson contends that he was “a highly visible obstacle to [the Biden Administration’s] efforts,” and that “the White House had targeted [him] specifically” as “ground zero for COVID-19 misinformation.” Indeed, the complaint is replete with assertions that Berenson, rather than a broad class of unvaccinated Americans, was the particular target. The complaint also indicates that Berenson was a vocal critic of the Biden Administration. Therefore, as in Gleason, Berenson’s Section 1985 claim must be dismissed because he has failed to plausibly allege “that the defendants acted with class-based, invidiously discriminatory animus.”
And the court also rejected Berenson’s tortious interference with contract claim:
Under New York law, a claim for tortious interference requires “(1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of that contract; (3) the defendant’s intentional procurement of the third-party’s breach of the contract without justification; (4) actual breach of the contract; and (5) damages resulting therefrom.” A claim for tortious interference will not lie if the plaintiff fails to plead an actual breach of the contract.
Here, there was a valid contract between Berenson and Twitter, namely Twitter’s Terms of Service, which provides that Twitter “may suspend or terminate [a user’s] account or cease providing [the user] with all or part of the [contractually defined] Services at any time for any or no reason.” Berenson argues that the Terms of Service were modified by Twitter’s five-strike policy and by Borrman’s “assurances to [Berenson] regarding his posts pursuant to [the five-strike] policy.” … [But] neither the five-strike policy nor Borrman’s statements to Berenson altered the Terms of Service….
The relevant provision of the Terms of Service appears in the section titled “Ending These Terms,” which sets out how a user may terminate the agreement, i.e., “by deactivating [a user’s] accounts and discontinuing [a user’s] use of [Twitter’s] Services,” and the circumstances under which Twitter
may suspend or terminate [a user’s] account … at any time for any or no reason, including, but not limited to, if [Twitter] reasonably believes: (i) you have violated these Terms or the Twitter Rules and Policies or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to unlawful conduct[;] (iv) your account should be removed due to prolonged inactivity; or (v) our provision of the Services to you is no longer commercially viable.
The five-strike policy is plainly included among the “Rules and Policies” contemplated by the Terms of Service. Yet, the provision clarifies that suspension or termination of an account is not limited to violations of that policy; rather, as noted above, such suspension or termination could be “at any time for any or no reason.” …
We reach the same conclusion regarding Borrman’s alleged remarks, which are too vague to modify the Terms of Service. The remarks are: (1) “I think you have some nuanced points that could be helpful as [sic] try to move ahead” and “[w]e’re trying to make sure that factual debate finds a way through the emotion, but we’re obviously not successful all the time”; (2) “The points you’re raising should not be an issue at all…. The policy is designed to allow debate and discussion, but to discourage conspiracy theories, etc. Please let me know if you run into any issues”; and (3) “I will say that your name has never come up in the discussions around these policies…. If it does I will try to ensure you’re given a heads up before an action is taken, but I am not always made aware of them before they’re executed. If something happens, please let me know.” Taken together, even when viewed most favorably to Berenson, these remarks at most suggest an intention to notify Berenson prior to any action—not that no action would be taken or that advance notice would invariably be provided.
In sum, Twitter’s Terms of Service permitted suspending Berenson for “any or no reason,” and that is precisely what occurred. There was no modification of that contract, and Berenson has failed to allege an actual breach of contract. Accordingly, the district court correctly held that Berenson did not state a tortious interference claim.
{Before the district court and now on appeal, Berenson relies heavily on Berenson v. Twitter, Inc. (N.D. Cal. 2022), a decision arising from Berenson’s December 2021 suit against Twitter. There, the district court granted in part and denied in part Twitter’s motion to dismiss, holding that the five-strike policy and Borrman’s “specific and direct assurances to [Berenson] regarding his posts pursuant to that policy” “amount[ed] to a modification of the [Terms of Service]” and that Berenson had plausibly alleged that “Twitter’s conduct … modified its contract with [him] and then breached that contract by failing to abide by its own five-strike policy and its specific commitments set forth through [Borrman].” Id. at (emphasis in original). We find that analysis unpersuasive for the reasons stated above.}
The analysis seems correct to me.
James P. Rouhandeh, Michael S. Scheinkman, David B. Toscano, and Luca Marzorati (Davis Polk & Wardwell LLP) represent the defendants.
