Berenson v. Twitter, Inc.

Background

Twitter operated a social-media platform whose terms of service said it could suspend accounts for “any or no reason.” During the COVID-19 pandemic, Twitter adopted policies addressing misinformation, including a five-strike policy announced on March 1, 2021. According to the complaint, Twitter labeled five of Alex Berenson’s tweets as misleading, later locked his account, and ultimately suspended it after what Berenson described as additional strikes. Berenson alleged that none of the relevant tweets qualified as strikes under Twitter’s rules and that Twitter’s vice president had given him assurances about how the policy would be applied.

Berenson sued Twitter in December 2021. The opinion describes claims for breach of contract, promissory estoppel, a First Amendment claim, a Lanham Act claim, and claims involving common-carrier law and California’s free-speech clause. Twitter moved to dismiss under Rule 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim.

Court’s analysis

The court held that 47 U.S.C. § 230(c)(2)(A) barred all claims except the breach-of-contract and promissory-estoppel claims. That provision generally protects an interactive computer service from liability for voluntarily restricting access to material it considers objectionable, including material the platform believes could harm users. The court found that Berenson’s allegations about the events leading to his suspension did not adequately support an inference that Twitter acted in bad faith. Even if Twitter applied its policy incorrectly, the court said, that alone would not establish bad faith.

The court allowed the contract claim to proceed. It reasoned that Twitter’s detailed five-strike policy and its vice president’s specific assurances could plausibly have modified or supplemented the parties’ agreement. At the pleading stage, the court had to interpret the allegations in Berenson’s favor. Berenson therefore plausibly alleged that Twitter breached the agreement by failing to follow its five-strike policy and related commitments.

The court also allowed the promissory-estoppel claim to proceed. Promissory estoppel requires a clear promise and reasonable, foreseeable, and detrimental reliance. The court found that Twitter’s policy and the vice president’s assurance that he would try to give Berenson advance notice of enforcement could plausibly constitute a clear promise, and that Berenson’s alleged reliance was not necessarily unreasonable.

The First Amendment claim failed because the First Amendment restricts government action, while Berenson conceded that Twitter was a private company. The court also found that Berenson had not plausibly alleged that Twitter acted jointly with, or was a willful participant in, government action based on federal officials’ general pressure concerning misinformation and Twitter’s change in enforcement position.

The Lanham Act claim also failed. The court ruled that Berenson’s tweets and Twitter’s statement about suspending his account did not plausibly propose a commercial transaction. They were not advertisements, did not refer to a particular product, and were too weakly connected to the services Berenson offered. The court concluded that Twitter’s warning labels and suspension notice were noncommercial speech. Because of its ruling under Section 230, the court found it unnecessary to address the details of the common-carrier and California free-speech claims.

Disposition and case management

The court granted Twitter’s motion to dismiss in part and denied it in part. Berenson’s breach-of-contract and promissory-estoppel claims survived for now. The court dismissed his other claims without leave to amend.

The court ordered the parties to make initial disclosures within 14 calendar days. Twitter had to identify the five strikes within that period. The parties also had to produce documents within the ordered deadlines, provide privilege logs for withheld materials, and complete limited depositions. No other discovery could be taken until further order, although the parties could propose adjustments and a later phase of discovery or summary-judgment motions.

Effect

The case continued on the breach-of-contract and promissory-estoppel claims, while the other claims ended at this stage. The ruling did not decide whether Twitter ultimately breached a contract or made a promise on which Berenson reasonably relied; it held only that those claims were sufficiently pleaded to proceed beyond the motion-to-dismiss stage.