Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`ALEX BERENSON,
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`Plaintiff,
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`v.
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`TWITTER, INC.,
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`Defendant.
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`No. C 21-09818 WHA
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`ORDER RE MOTION TO DISMISS
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`INTRODUCTION
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`In this free speech action, defendant banned plaintiff from its social media platform after
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`he violated its five-strike COVID-19 misinformation policy. To the extent stated, defendant’s
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`motion is GRANTED IN PART and DENIED IN PART.
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`STATEMENT
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`Defendant Twitter, Inc. is a private company providing a social media platform that
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`allows its users to post short messages for public discussion. Twitter’s terms of service stated
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`at all relevant times that it could suspend user accounts for “any or no reason” (Compl. ¶¶ 15,
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`22–23, 133).
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`Plaintiff Alex Berenson is an independent journalist. As alleged in the complaint, he
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`gained notoriety through provocative statements he posted on Twitter regarding the public-
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`health response to the COVID-19 pandemic. By May 2020, his tweets were the subject of
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`Northern District of California
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`United States District Court
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`Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 2 of 7
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`discussion for prominent public figures like Elon Musk and, as reported by the New York
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`Times, senior White House officials (id. ¶¶ 1–2, 60, 64–66).
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`As the pandemic continued and to protect the public, Twitter began crafting specific
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`community standards to limit COVID-19 misinformation on the platform. These content
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`moderation policies included takedown procedures for, e.g., ineffective treatments and false
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`diagnostic criteria, as well as measures for “labelling” information as “misleading.” The same
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`day Twitter announced its labelling policy, May 11, 2020, plaintiff tweeted his concern
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`regarding the risk of Twitter beginning to actively censor content. Hours later, Twitter’s then-
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`CEO Jack Dorsey began following plaintiff’s account. And later that same day, Twitter’s then-
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`Vice President of Global Communications, Brandon Borrman, contacted plaintiff to open a
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`direct line of communication with the company (id. ¶¶ 68–70, 73–74, 76, 80–81). When
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`Twitter adopted standards regarding misleading statements on the COVID-19 vaccines,
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`plaintiff reached out and received assurances from Vice President Borrman about how his
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`tweets would be impacted by the policy. At this point, Twitter had not removed or labeled
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`misleading any of plaintiff’s tweets (id. ¶¶ 94–97, 102–03, 106).
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`Twitter announced a five-strike policy as part of its COVID-19 misinformation
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`guidelines on March 1, 2021. Plaintiff again reached out to Vice President Borrman, who
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`replied, “I will say that your name has never come up in the discussions around these policies,”
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`and that “[i]f it does I will try to ensure you’re given a heads up before an action is taken, but I
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`am not always made aware of them before they’re executed. If something happens, please let
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`me know” (id. ¶¶ 107–10). Twitter labeled as misleading five of plaintiff’s tweets posted on
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`March 15, May 29, and May 30, although none of these actions was called a strike on
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`plaintiff’s account. Although Vice President Borrman told plaintiff that he would look into the
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`five labels, he did not respond further on the matter (id. ¶¶ 113–16).
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`On July 16, Twitter locked plaintiff’s account for the first time. Plaintiff avers this
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`constituted the second strike on his account. Twitter did not inform him what action
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`constituted the first strike. Plaintiff received his third, fourth, and fifth strikes on July 27, July
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`30, and August 28, whereupon his account was permanently suspended (id. ¶¶ 127, 137, 139–
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`Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 3 of 7
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`40, 144). Plaintiff says none of the tweets qualified as a strike under Twitter’s stated rules.
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`Vice President Borrman never advised him that he was in any trouble. Plaintiff filed this
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`action in December 2021. Twitter now moves to dismiss. This order follows full briefing and
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`oral argument.
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`ANALYSIS
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`To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
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`factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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`With the exception of the claims for breach of contract and promissory estoppel, all
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`claims in this action are barred by 47 U.S.C. Section 230(c)(2)(A), which provides, “No
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`provider or user of an interactive computer service shall be held liable on account of -- any
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`action voluntarily taken in good faith to restrict access to or availability of material that the
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`provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent,
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`harassing, or otherwise objectionable, whether or not such material is constitutionally
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`protected.” For an internet platform like Twitter, Section 230 precludes liability for removing
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`content and preventing content from being posted that the platform finds would cause its users
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`harm, such as misinformation regarding COVID-19. Plaintiff’s allegations regarding the lead-
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`up to his account suspension do not provide a sufficient factual underpinning for his conclusion
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`Twitter lacked good faith. Twitter constructed a robust five-strike COVID-19 misinformation
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`policy and, even if it applied those strikes in error, that alone would not show bad faith.
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`Rather, the allegations are consistent with Twitter’s good faith effort to respond to clearly
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`objectionable content posted by users on its platform. See Barnes v. Yahoo!, Inc., 570 F.3d
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`1096, 1105 (9th Cir. 2009); Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 604 (S.D.N.Y. 2020)
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`(Judge Stewart D. Aaron).
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`With regard to breach of contract and promissory estoppel, this order reads our court of
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`appeals’ Barnes decision to allow those claims to go forward despite Section 230, so long as
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`they are properly pleaded under state law. At the hearing, Twitter emphasized Barnes’
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`reasoning that “what matters is not the name of the cause of action,” and that instead the
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`Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 4 of 7
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`district court “must ask whether the duty that the plaintiff alleges the defendant violated
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`derives from the defendant’s status or conduct as a ‘publisher or speaker.’” Id. at 1101–02.
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`This order finds, however, that for these two claims plaintiff “does not seek to hold [Twitter]
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`liable as a publisher or speaker of third-party content, but rather as the counter-party to a
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`contract, as a promisor who has breached.” Id. at 1107.
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`For an express contract, the course of performance “may supplement or qualify the terms
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`of the agreement, or show a waiver or modification of any term inconsistent with the course of
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`performance.” Emps. Reinsurance Co. v. Super. Ct., 161 Cal. App. 4th 906, 920–21 (2008)
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`(cleaned up). Specifically, conduct antithetical to a written term in a contract that induced the
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`other party to rely on that conduct can amount to a modification of the contract. See Wagner v.
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`Glendale Adventist Med. Ctr., 216 Cal. App. 3d 1379, 1388 (1989). Here, Twitter allegedly
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`established a specific, detailed five-strike policy regarding COVID-19 misinformation and its
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`vice president gave specific and direct assurances to plaintiff regarding his posts pursuant to
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`that policy. Any ambiguities in a contract like Twitter’s terms of service are interpreted
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`against the drafter, Twitter. Sandquist v. Lebo Auto., Inc., 1 Cal. 5th 233, 248 (2016). And, at
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`the pleading stage, this order must construe all allegations in the light most favorable to
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`plaintiff’s allegations. Plaintiff plausibly avers that Twitter’s conduct here modified its
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`contract with plaintiff and then breached that contract by failing to abide by its own five-strike
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`policy and its specific commitments set forth through its vice president.
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`“The elements of promissory estoppel are (1) a clear and unambiguous promise by the
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`promisor, and (2) reasonable, foreseeable and detrimental reliance by the promisee.” Bushell
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`v. JPMorgan Chase Bank, N.A., 220 Cal. App. 4th 915, 929 (2013). The analysis here echoes
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`that of the breach of contract claim. Twitter established a policy that set out standards for
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`account suspension for posting COVID-19 misinformation. Twitter, through its vice president,
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`also gave specific assurances to plaintiff that, among other things, it “would try to ensure
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`you’re given a heads up before any [enforcement] action is taken” (Compl. ¶ 210).
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`Collectively, these actions plausibly qualify as a clear and unambiguous promise that Twitter
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`would correctly apply its COVID-19 misinformation policy and try to give advance notice if it
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`Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 5 of 7
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`suspended plaintiff’s account. See Aceves v. U.S. Bank, N.A., 192 Cal. App. 4th 218, 226
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`(2011). Twitter suspended plaintiff’s account because he ostensibly violated the COVID-19
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`misinformation policy. These facts differ from other recent opinions on promissory estoppel
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`where the pleading did “not allege[] Twitter ever made a specific representation directly to
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`[plaintiff] or others that they would not remove content from their platform or deny access to
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`their accounts.” Murphy v. Twitter, Inc., 60 Cal. App. 5th 12, 39 (2021); see also King v.
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`Facebook, Inc., ––– F. Supp. 3d –––, 2021 WL 5279823, at *13 (N.D. Cal. Nov. 12, 2021)
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`(Judge Edward M. Chen). Twitter’s argument that plaintiff’s reliance was unreasonable
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`because the alleged representations contradicted a written agreement is inapposite given the
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`explicit COVID-19 misinformation policy.
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`Aside from Section 230, plaintiff fails to even state a First Amendment claim. The free
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`speech clause only prohibits government abridgement of speech — plaintiff concedes Twitter
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`is a private company (Compl. ¶15). Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.
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`1921, 1928 (2019). Twitter’s actions here, moreover, do not constitute state action under the
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`joint action test because the combination of (1) the shift in Twitter’s enforcement position, and
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`(2) general cajoling from various federal officials regarding misinformation on social media
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`platforms do not plausibly assert Twitter conspired or was otherwise a willful participant in
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`government action. See Heineke v. Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir. 2020).
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`For the same reasons, plaintiff has not alleged state action under the governmental nexus test
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`either, which is generally subsumed by the joint action test. Naoko Ohno v. Yuko Yasuma, 723
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`F.3d 984, 995 n.13 (9th Cir. 2013). Twitter “may be a paradigmatic public square on the
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`Internet, but it is not transformed into a state actor solely by providing a forum for speech.”
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`Prager Univ. v. Google LLC, 951 F.3d 991, 997 (9th Cir. 2020) (cleaned up, quotation
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`omitted).
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`Aside from Section 230, the Lanham Act claim also fails anyway. The Lanham Act
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`“prohibits any person from misrepresenting her or another person’s goods or services in
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`‘commercial advertising or promotion.’” Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107,
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`1114–15 (9th Cir. 2021) (quoting 15 U.S.C. § 1125(a)(1)(B)). Neither Twitter’s labelling of
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`Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 6 of 7
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`plaintiff’s tweets, nor its statement regarding the suspension of his account plausibly propose a
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`commercial transaction. See United States v. United Foods, Inc., 533 U.S. 405, 409 (2001).
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`They are not advertisements, nor do they refer to a particular product, and the theory that
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`Twitter’s statements were made in the context in which plaintiff offers his services is too
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`attenuated. See Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citation omitted).
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`Applying common sense, this order concludes Twitter’s warning labels and suspension notice
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`constitute non-commercial speech aimed instead at promoting the veracity of tweets regarding
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`COVID-19.
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`In light of Section 230’s immunity, it is unnecessary to delve into the specifics of the
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`common carrier law and the California free speech clause.
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`CONCLUSION
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`In sum, plaintiff’s breach of contract and promissory estoppel claims survive for now.
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`Plaintiff’s other claims are futile and are DISMISSED WITHOUT LEAVE TO AMEND.
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`The Court finds that the following disclosures and discovery will efficiently tee this case
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`up for cross motions for summary judgment and / or trial:
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`1. Both sides shall make their initial disclosures under Rule 26 within 14 CALENDAR
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`DAYS.
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`2. Also within 14 CALENDAR DAYS, defendant shall specify what the five strikes were.
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`3. Each side shall produce all documents that fall within the scope of the categories it
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`discloses under Rule 26 regardless of whether or not the party intends to rely on the
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`documents. For example, if a party discloses “the customer file” then it must
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`produce the entire file and not just those pages it intends to use in its case. This is
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`due within 21 CALENDAR DAYS (from today).
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`4. Plaintiff shall produce all texts, emails, voicemails, statements, and other
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`documents by him pertaining to the termination of his Twitter account or the
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`possibility thereof. This is not limited to communications with Twitter. If the
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`document is a response to a message from someone else, then that message must
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`also be produced. The deadline for this production shall be JUNE 6.
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`Case 3:21-cv-09818-WHA Document 39 Filed 04/29/22 Page 7 of 7
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`5. Defendant shall produce all texts, emails, voicemails, statements, and other
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`documents pertaining to plaintiff, including but not limited to nonparty complaints
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`or inquiries about plaintiff and / or including possible or actual termination of his
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`account or a strike against his account or a labeling of any of his posts. Given the
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`likelihood of a greater number of relevant documents in defendant’s possession on
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`this topic, the deadline for this production shall be JUNE 20.
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`6. Privilege logs must be immediately supplied for any materials withheld on any
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`ground of privilege. Privilege logs will be provided the same date as the document
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`production.
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`7. Plaintiff shall sit for a single deposition up to seven hours. This must be completed
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`before any depositions of defendant. Then plaintiff may depose up to two Twitter
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`employees or former employees for a total of seven hours. The deadline for
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`plaintiff’s deposition shall be JUNE 27. The deadline for the completion of
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`defendant’s witnesses shall be JULY 14.
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`8. Until further order, no other discovery may be taken. The foregoing is without
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`prejudice to further deposition of the same witnesses and parties in later discovery.
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`Counsel may agree in a stipulation promptly filed herein to modest adjustments of
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`the foregoing deadlines and obligations. Based on what the foregoing discovery
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`shows, by JULY 21, counsel shall propose a further phase of discovery and / or
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`summary judgment motions.
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`IT IS SO ORDERED.
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`Dated: April 29, 2022.
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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