Federal Court Dismisses Censorship Lawsuit By “Leading COVID-19 Vaccine Skeptic”
Alex Berenson was suspended by Twitter for comments he made about the mRNA vaccines. He blamed the government and Pfizer.
Self-proclaimed “leading COVID-19 vaccine skeptic” Alex Berenson has suffered a significant setback in his legal efforts to hold the government accountable after Twitter suspended his account for spreading vaccine misinformation at the height of the pandemic.
Berenson’s lawsuit against the government came in April 2023—two years after Twitter permanently suspended him for violating its five-strike policy against posting COVID-related misinformation, and a year after he’d been reinstated as part of a settlement with the company. He had teased the legal venture during a 2022 podcast interview with now-Health and Human Services Secretary Robert F. Kennedy Jr. for “The Defender,” the media outfit of Children’s Health Defense, the anti-vaccine advocacy group Kennedy led at the time.
Berenson alleged that his suspension had been the result of a government-led conspiracy against him at the height of the SARS-CoV-2 public health crisis. The alleged conspirators included former President Joe Biden, various administration officials, and executives at Pfizer. Berenson claimed that these individuals worked to pressure Twitter (today “X”) into taking action against his account—a supposed attack on journalism and free speech.
The case centered around efforts by the Biden administration to combat online misinformation, which was slowing the COVID vaccine rollout amid mounting deaths. The White House sought to work with social media platforms on their content moderation. Companies like Twitter were resistant to the government’s requests and public pressure attempts, ultimately making their own moderation decisions. To this day, vaccine misinformation is rampant online. Nevertheless, the government efforts have become a talking point and target for lawsuits by contrarians, anti-vaxxers, and the broader political Right.
With his legal effort, Berenson cast himself a First Amendment crusader—a wronged journalist punished for the crime of doing his job. But Berenson has another mantle: “The pandemic’s wrongest man,” given by a writer for The Atlantic over his promotion of false, misleading, and conspiratorial claims about the mRNA vaccines, which have saved millions of American lives and prevented millions more hospitalizations. According to court documents, Berenson’s Twitter suspension came after he posted a number of dubious claims about the mRNA vaccines.
The first strike against his account came after he falsely called the shots “gene therapy” and claimed they would alter recipients’ genetic code. The second, which did follow discussions between several White House officials and the company, was over a tweet claiming the vaccines were “failing.” The third followed a post seemingly encouraging his followers to pursue immunity through COVID infection rather than the shots.
”You know what immunizes you against #SARS_CoV_2? Quickly, efficiently, and with low risk to healthy non-elderly people? Getting #SARS_CoV_2,” he wrote.
COVID, which has killed well over one million Americans and left millions suffering with long COVID, only dropped out of the top 10 leading causes of deaths last year.
Berenson received a seven-day suspension from the platform with his fourth strike. He had claimed, “The pivotal clinical trial for the @pfizer #COVID-19 vaccine shows it does nothing.” The following day, before Twitter took action against him, he posted the words “Impfung macht frei,” which translate to “vaccines make you free”—an apparent reference to the infamous “Arbeit macht frei” (work makes you free) slogan at the entrance of Nazi death camps, most notably Auschwitz. The tweet was widely criticized and caught the attention of White House senior advisor Andy Slavitt, who told a Twitter employee that if the post did not result in a ban, “the outcry will be justified.”
The ban finally came after Berenson called COVID vaccine mandates “insanity,” arguing that the shots did not prevent infection or transmission and “should not be thought of as a vaccine, but instead as “a therapeutic with a limited window of efficacy and terrible side effect profile that must be diagnosed IN ADVANCE OF ILLNESS.” The vaccines have been shown to reduce transmission and offer robust protection against severe illness and death.
In response to being banned, he sued Twitter, reaching a resolution that saw his account reinstated. Since then, he has continued attacking the lifesaving vaccines and downplaying their importance and efficacy.
Berenson’s latest lawsuit is one of a handful of similar cases alleging that the Biden administration coerced social media companies into censoring dissent amid the pandemic. The most prominent of these is Murthy v. Missouri (originally Missouri v. Biden), which counted among its plaintiffs the current National Institutes of Health Director, Jay Bhattacharya, and the current chairman of the Centers for Disease Control and Prevention’s Advisory Committee on Immunization Practices, Martin Kulldorff. The lawsuit aimed at preventing the government from communicating with social media companies about misinformation on their platforms. Representing plaintiffs was the Charles Koch-tied corporate-aligned lawfare group New Civil Liberties Alliance.
Murthy made its way up to the Supreme Court where it was tossed last year on the grounds that the plaintiffs lacked standing. In that case, Justice Amy Coney Barrett, writing for the 6-3 majority, determined that the plaintiffs had failed to establish that the government was the cause of their injury. The ruling played a role in Berenson’s lawsuit as the court stayed his case in March pending the outcome of Murthy given the “nearly identical issues with respect to Berenson’s First Amendment claims.” The court noted it was “therefore highly likely to affect the outcome of the instant case.”
Like the Murthy plaintiffs before him, Berenson saw his case fail on the issue of standing. He had alleged that various individuals in the Biden administration and executives at Pfizer “engaged in a nearly unprecedented conspiracy to suppress [his] First Amendment rights” by “work[ing] together to pressure Twitter to suspend [his] account and mute his voice as a leading COVID-19 vaccine skeptic.” This, he argued, amounted to a conspiracy to interfere with his civil rights under 42 U.S.C. § 1985(3) because, as an unvaccinated person, he was part of a protected class—a term reserved for groups that have faced discrimination like racial and ethnic minorities, and women. Anti-vaxxers have been pushing the argument that the unvaccinated are a protected class for years.
It was a difficult case for Berenson, who based his claim for relief on the judge-made rule in Bivens v. Six Unknown Agents (1971), which established a right under the Constitution itself to seek monetary damages against individual federal officers. The circumstances under which a plaintiff can win under Bivens are extremely narrow and, as the court would note in its decision, none applied to his case.
Still, the outcome of the case was not certain. There had been a changing of the guard since the case was initially filed. As of January 2025, Donald Trump was back in the White House—in part thanks to an alliance with anti-vaxxer Kennedy, who he made Health and Human Services secretary. Representing the federal defendants was the U.S. Attorney’s Office for the Southern District of New York, which falls under the Department of Justice. In civil suits involving the government, the DOJ has ultimate authority over whether or not to settle—not the named defendants themselves.
The administration’s early signaling was suggestive that its approach to cases like Berenson’s might change. On January 20, the new president issued an executive order barring any “Federal department, agency, entity, officer, employee, or agent” from using taxpayer resources “to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen.” The order also directed the Attorney General, “in consultation with the heads of executive departments and agencies,” to “investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report to be submitted to the President...with recommendations for appropriate remedial actions to be taken based on the findings of the report.”
Weeks later, Vice President JD Vance attacked European leaders at a conference in Munich, accusing them, among other things, of suppressing free speech.
In April, the U.S. Attorney’s Office for the Southern District of New York requested a stay on a hearing set two days earlier by Judge Jessica Clark to hear oral arguments on defendants’ motions to dismiss. The private plaintiffs objected to the stay, which was granted for the federal defendants only.
In the filing, the U.S. Attorney’s Office cited the January executive order and the new leadership at the DOJ, explaining they needed “more time for the Attorney General to complete her investigation and report and for new leadership at the Department to determine its position as to the official capacity defendants.”
At the time, Berenson himself certainly thought a settlement was possible, believing the case presented a political opportunity for the new regime “to repudiate the Biden administration’s social media censorship efforts,” as he put it in an email to Important Context. After all, he had evidence that prior to his suspension from Twitter, administration officials and employees of the company had communicated about his content—and the former had sought to get it removed.
The day before the government’s request for a stay, Berenson had published a Substack post declaring his case was “about to get serious” and asking readers, “Will the Trump White House stand with me and free speech…or with Pfizer?” The piece suggested that donations from Pfizer might influence the administration to continue fighting.
Dorit Reiss, a law professor at the University of California College of the Law, San Francisco, who is a leading expert in vaccine law and policy, told Important Context that she too had initially thought the Trump administration might settle the case as a way of jabbing at its predecessor. Reiss noted that she was actually surprised when it continued fighting.
“They may not have wanted to close the door to their own efforts to influence social media,” Reiss said. “But yes, I was surprised…I thought there was a real chance.”
The dismissal of Berenson v. Biden came in two parts. In July, Judge Clarke granted summary judgment to the three private plaintiffs—former White House senior advisor Andy Slavitt as well as Pfizer executives Dr. Scott Gottlieb and Albert Bourla—who were not being represented by the U.S. Attorneys. The court reasoned that only the government can violate constitutional rights. In that ruling, Clarke also noted that Berenson had not established himself as a protected class.
The case against the federal defendants came to a close at the end of last month when Clarke granted them summary judgment without leave for Berenson to amend his complaint. The court reasoned that he had not shown a risk of future injury given the fact that named defendants were now private citizens. He had also failed to establish himself as a member of a protected class, which would be required for recovery.
Still, in her decision, Clarke noted a peculiar concession on behalf of the defendants.
“Second, while Official Federal Defendants effectively concede an underlying First Amendment violation…Plaintiff lacks standing for declaratory and injunctive relief because he has not plausibly alleged a ‘substantial risk’ of imminent future injury,” the decision read.
Important Context reached out to the U.S. Attorney’s Office for the Southern District of New York to inquire as to why the government would not challenge Berenson’s claim of a First Amendment violation. In response, we received an email stating, “We will decline to comment. Thank you.”
Reiss offered a possible explanation, noting that the concession might have been deliberate—an opening to attack the Biden administration. She noted that while the lawsuit had come down to risk of future injury, she did not believe that Berenson had much evidence of past injury. Nevertheless, due to the summary judgment, the case never went to the fact-finding stage where Berenson’s censorship claims could have been litigated in the first place, had the government not conceded the point.
Still, Berenson is claiming vindication. In emails to Important Context, in which he tagged his attorney, he highlighted the concession and noted that he looked forward to having the case heard on appeal—up to the Supreme Court, if possible. He filed on October 27.
“The court in Berenson v. Biden found the government conceded that my First Amendment rights had been violated and included an extensive factual record supporting my claim,” Berenson said. “It dismissed the case not because I couldn’t prove a violation but because as of now citizens cannot win money damages from the federal government for First Amendment violations or most constitutional violations. This is wrong, whether Democrats or Republicans commit such violations, and Senator Ted Cruz may introduce legislation to correct it.”
Indeed, while Berenson’s claims failed to win in the Southern District of New York, Senate Republicans promptly gave him a platform to continue telling his story. Earlier this month, at the invitation of Sen. Ted Cruz (R-Texas), Berenson testified before the Senate Committee on Commerce, Science, and Transportation in a hearing called, “Shut Your App; How Government Jawboned Big Tech Into Silencing Americans.”
In his opening statement, Berenson sought to frame his alleged censorship as a matter of concern for all Americans, arguing that social media companies have business before the government and are willing to sacrifice the speech of some users to stay in the “good graces” of federal officials.
The Senate hearing came amid a push by the Trump administration to control speech in the U.S.—from defamation lawsuits by the president against media outlets to threats to withhold funding from colleges which the White House says are indoctrinating young people, to threats by the Federal Communications Commission against corporations like Walt Disney Co. over “diversity, equity, and inclusion” policies.
It also came weeks after Trump’s Federal Communications Commission chairman, Brendan Carr, seemingly scared ABC into firing late night host Jimmy Kimmel over an opening monologue in which he discussed the ideology of the man who killed Charlie Kirk. On a right-wing podcast, Carr had suggested that Kimmel’s remarks could lead to his agency revoking the broadcast licenses of ABC affiliate stations. Following the interview, broadcast station owners Nexstar Media Group and Sinclair Broadcast Group stopped airing the show and ABC suspended the host.
Nexstar, Sinclair, and Disney all had major deals pending approval by federal regulators.
“Whatever anyone thinks about my views on the mRNA Covid shots—and I believe time has proved me mostly right—I am fighting for free speech here, and that should matter to journalists and everyone else,” Berenson told Important Context over email.