Alex Berenson’s Deplatforming Lawsuit Fails in the Second Circuit–Berenson v. Gottlieb

Alex Berenson is a one-time N.Y. Times reporter whose life appears to have taken an unfortunate turn in the wake of MAGA and COVID. According to his Wikipedia entry:

During the coronavirus pandemic, Berenson appeared frequently in American right-wing media, spreading false claims about COVID-19 and its vaccines. He spent much of the pandemic arguing that its seriousness was overblown. Once the COVID-19 vaccines became available, he spread misinformation about the safety and effectiveness of the vaccines.

(A reminder that 1.2M Americans died due to COVID).

Berenson aggregated over 200k followers at Twitter who were exposed to his hot takes on COVID and vaccines. That put his account at risk as Twitter cracked down on misinformation and denialism:

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 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 “alleges that former President Joseph R. Biden, as well as other individuals in the Biden Administration, conspired with executives at Pfizer, Inc. to pressure Twitter to suspend Berenson’s Twitter account, because of his views with respect to the COVID-19 vaccines.” He sued various US government officials for roles in the alleged censorship. In 2025, the district court dismissed several of the defendants. The Second Circuit, in a memo opinion, affirms that ruling.

Section 1985(3)

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].” 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….

the FAC is replete with allegations that Berenson, and not a general class of unvaccinated Americans, was specifically targeted….Berenson’s Section 1985 claim must be dismissed because he failed to plausibly allege “that the defendants acted with class-based, invidiously discriminatory animus.”

Tortious Interference

Twitter’s five-strike policy and Borrman’s alleged remarks, whether considered separately or together, are not “wholly incompatible” with 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…the provision makes clear that suspension or termination of an account is not limited to violations of that policy….

[Borrman’s] 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.

In 2022, Berenson’s deplatforming claim against Twitter partly survived a motion to dismiss. My blog post on that ruling. That ruling became a bit of a cause celebre in MAGA circles as proof that (1) Berenson was censored, and (2) Twitter could be held liabile. The Second Circuit rejects that ruling:

Berenson relies heavily on Berenson v. Twitter, Inc., No. C 21-09818 (WHA), 2022 WL 1289049 (N.D. Cal. Apr. 29, 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].” We find that analysis unpersuasive

It’s a reminder that plaintiffs have virtually no chance of successfully suing Internet services for their account termination/content removal decisions. Even one of the few preliminary “wins” by plaintiffs is “unpersuasive” when reviewed by an (unrelated) appellate court.

The litigation over Biden-era COVID-related “censorship” feels quaint in light of the ongoing, relentless, and far more egregious censorship taking place daily in the Trump 2.0 administration. If anyone still wants to make censorship their cause celebre, it would make sense to start with the censorship taking place RIGHT NOW.

Case Citation: Berenson v. Gottlieb, 2026 WL 3135334 (2d Cir. Oct. 20, 2026)