From Berenson v. Gottlieb, decided yesterday by Judges Pierre Leval, Richard Wesley, and Joseph Bianco:

Plaintiff-Appellant Alex Berenson … is an independent journalist and author of a book about the COVID-19 pandemic. Berenson was an active Twitter user during the COVID-19 pandemic, posting about, inter alia, "the public policy response to COVID-19 and the vaccines." See also Appellant's Brief (describing Berenson as "a vocal critic of the public policy response to COVID-19, questioning the underlying evidentiary basis for business and school closures"). Berenson's Twitter follower count rose from approximately 7,000 in January 2020 to more than 229,000 by March 2021. Berenson alleges the existence of a conspiracy by 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 may append labels or warning messages to tweets related to COVID-19 misinformation. Berenson tweeted that he was "concern[ed] about what the new rules might mean for free speech on [Twitter]." In response, Twitter's Vice President of Global Communications Brandon Borrman contacted Berenson to discuss the new policy.

In December 2020, Twitter announced a new policy with respect to COVID-19 vaccine misinformation, stating that it would start to "remove Tweets which advance harmful or misleading narratives about COVID-19 vaccinations." Berenson contacted Borrman, "looking for assurances that Twitter would continue to allow his reporting on COVID-19 vaccines." Borrman allegedly responded that the "points [Berenson was] raising should not be an issue at all," and that Berenson should reach out if he "r[an] into any issues."

On March 1, 2021, Twitter announced a "five-strike policy" to combat COVID-19 misinformation. Accounts that received strikes were subject to increasing levels of discipline: the first strike resulted in a warning, the second and third strikes each in a 12-hour account lock, the fourth strike in a 7-day account lock, and the fifth or successive strike in 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 next day, Berenson spoke with Borrman, who allegedly reported that "[Berenson's] name has never come up in the 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 made aware of them before they're executed."

Berenson alleges that members of the Biden Administration, [Pfizer Board of Directors member and former FDA Commissioner  Scott] Gottlieb, and [Chief Executive Officer of Pfizer Albert] Bourla repeatedly pressured Twitter to suspend his account, citing tweets that Twitter executives, including CEO Jack Dorsey and general counsel Vijaya Gadde, did not believe constituted violations of Twitter's five-strike policy. Berenson received strikes from Twitter in March, July, and August 2021. His Twitter account was permanently suspended with the fifth strike on August 28, 2021.

Berenson sued, but the court rejected his federal civil rights conspiracy claim under 42 U.S.C. § 1985 claim:

[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 cautioned that Section 1985(3) should not be "interpreted 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 made clear that protected classes under Section 1985(3) need to possess "the type of inherited or immutable characteristics sufficient to satisfy the class-based animus requirement."

Here, Berenson asserts that the relevant class here 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 kind of class that the Supreme Court cautioned against in Bray—a class composed of individuals who share a desire to engage in conduct, i.e., to forgo COVID-19 vaccination, that the defendants allegedly disfavor. To the extent Berenson suggests 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 unpersuaded. 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 determined in the alternative that, assuming arguendo that persons not vaccinated against COVID-19 constituted a protected category, Berenson did not sufficiently 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 alleges 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 FAC is replete with allegations that Berenson, and not a general class of unvaccinated Americans, was specifically targeted. The FAC also indicates that Berenson was a vocal critic of the Biden Administration. Thus, as in Gleason, Berenson's Section 1985 claim must be dismissed because he 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, i.e., 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 modified the Terms of Service….

The relevant provision of the Terms of Service is located in the section entitled "Ending These Terms," and provides the means by which 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 believe[s]: (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 clearly among the "Rules and Policies" that the Terms of Service contemplates. However, the provision makes clear 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 with respect to Borrman's alleged remarks, which are too vague to modify the Terms of Service. The alleged 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," Collectively, even drawing all inferences in Berenson's favor, these remarks suggest at most that Borrman would attempt to notify Berenson of action taken against him—not that no action would be taken against Berenson or that Berenson would necessarily receive advance notice of any action.

At bottom, Twitter's Terms of Service provided that Twitter could suspend Berenson for "any or no reason," and it did so. There was no modification of that contract and Berenson has failed to allege an actual breach of contract. Therefore, the district court correctly determined that Berenson failed to 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 in a case Berenson initiated against Twitter in December 2021. 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 defendants.

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