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Guest Post by James R. Lawrence, III
A recent survey lists 25 of the greatest winning streaks in sports history, including tennis star Rafael Nadal’s 81-match win streak on clay courts, golfer Byron Nelson’s 11-straight PGA tour wins, and the Atlanta Braves’ 14-consecutive division titles. Atop this list is a winning streak with a deep connection to North Carolina, my home state, and California, the cradle of Big Tech. Starting in 1967, the UCLA Bruins, with Coach John Wooden on the sidelines and legends like Karim Abdul-Jabbar and Bill Walton on the basketball court, won seven consecutive national championships. In 1974, at the Greensboro Coliseum, which is about eighty miles west of my hometown, the Bruins’ dynasty met its demise, as David Thompson led the North Carolina State Wolfpack past UCLA in double overtime.
Big Tech enjoyed a similar string of success in the courtroom against plaintiffs banned from social media. Litigants from President Trump, to Democratic presidential candidate Robert F. Kennedy Jr., to Prager University have watched courts slice, dice, and toss their claims—all before discovery. A recent academic survey of 62 deplatforming cases found that Big Tech won essentially all of them. If you’re keeping score, that’s 0-62—as in 62 losses for users banned from platforms like Twitter, Facebook, and YouTube, and 62 wins for the companies. Those are what Macaulay called “fearful odds.”
Speaking of long odds, nine years after snapping UCLA’s winning streak, North Carolina State faced top-ranked Houston, a team led by future NBA Hall of Famers Clyde Drexler and Hakeem Olajuwon, for the national championship. The day of the Wolfpack’s stunning upset, a journalist at The Washington Post wrote that “[t]rees will tap dance, elephants will drive at Indy and Orson Welles will skip lunch before North Carolina State finds a way to beat Houston.” Lorenzo Charles’ last-second dunk created an unforgettable moment, punctuated by Coach Jim Valvano running around the floor in Albuquerque, New Mexico looking for someone to hug.
In December 2021, we sued Twitter on behalf of former New York Times reporter Alex Berenson, a leading critic of the public policy response to the COVID-19 pandemic and the COVID-19 vaccines, who Twitter suspended “for repeated violations of our COVID-19 misinformation rules.” The press’ assessment of Alex’s lawsuit was less charitable than the Post’s assessment of the underdog Wolfpack’s chances in 1983. “This is not a serious lawsuit and the lawyers who filed it—James Lawrence and Anthony Biller from Envisage Law, and Sean Gates from Charis Lex—should all be embarrassed for handing the court a pile of such utter nonsense,” thundered Mike Masnick over at the blog Techdirt. Above the Law, a popular legal industry website, called it an “LOLsuit.” And a New York City-based lawyer penned a meme-and-profanity-laced Twitter thread mocking the suit, referring to my colleagues and I as a “band of incompetent knock-off muppet lawyers.”
But then, last July, something remarkable happened. As The Atlantic magazine put it, “somehow the muppet lawyers won.” Twitter reinstated Alex to the platform — the first known, litigation-induced reinstatement of its kind — and the company publicly acknowledged that his tweets should not have led to his suspension at that time.
Orson Welles skipped lunch.
THE STORY BEGINS not in December 2021 or even with the start of the COVID-19 pandemic. More than twenty-five years before the first case of COVID-19, and long before Martin Scorsese and Leonard DiCaprio immortalized the brokerage house in The Wolf of Wall Street, Stratton Oakmont sued the internet service company Prodigy.
Prodigy operated a message board called “Money Talk” where members traded stock tips and financial advice. An anonymous poster called Stratton Oakmont a “cult of brokers who either lie for a living or get fired.” At that time Jordan Belfort and Danny Porush, the founders of Stratton Oakmont, had not yet gone to prison for securities fraud and money laundering, so their brokerage house sued for defamation.
The common law distinguished between publishers and distributors. Newspapers are publishers. They can be held liable for the statements they print. By contrast, newsstands are distributors, and under the traditional rule newsstands are not liable for statements made in publications they sell unless they know or have reason to know the content is defamatory.
In the case, Prodigy argued it was a distributor, and asked the New York state court to throw out the case on that basis. But the trial court refused to do so, finding that Prodigy was a publisher based on the company’s own statements. The judge pointed to national newspaper articles in which Prodigy described itself as “pursing a value system that reflects the culture” of American families. Quoting Prodigy again: “Certainly no responsible newspaper does less when it chooses the type of advertising it publishes, the letters it prints, the degree of nudity and unsupported gossip its editors tolerate.” For the trial court judge, these public statements and Prodigy’s moderation practices were sufficient to make the company a publisher of the content at issue, and potentially liable for defamation.
Much of the resulting media coverage focused on the holding without discussing the underlying rationale. For example, a report in the Boston Globe called the judge’s ruling “ground-breaking,” but did not mention Prodigy’s prior public statements, which the trial court focused on. The report did note “a potential irony” that the holding “could encourage online services to exert less editorial control over” pornography.
These concerns ultimately reached Congress. Channeling the Boston Globe, Republican Representative Christopher Cox worried that “the existing legal system provides a massive disincentive” for Internet service companies to police pornographic content. Democrat Ron Wyden agreed. Keep in mind that at this point, Stratton Oakmont v. Prodigy was one case from one state court trial judge. It’s unclear the “system” Cox had in mind. New York’s highest court, the New York Court of Appeals, never weighed in on the case, which ultimately settled.
Cox and Wyden’s bi-partisan collaboration gave us section 230 of the Communications Decency Act. The law did three things. First, it applied the common law rule that internet service companies like Prodigy are distributors, and not publishers of the third-party content they host. Second, the statute immunized the platforms from liability for certain “good faith” content moderation decisions. Third, the statute swept aside all State and local laws to the contrary. Instead of letting the law in this area develop, somehow this one-size-fits-all solution emerged from the Republican Revolution Congress. If you can find a provision for this tucked away inside the Contract with America, please let me know.
Section 230 has proven to be an impenetrable web for deplatforming plaintiffs. Courts have misinterpreted the statute to immunize Big Tech from liability, not just for third-party speech, which makes sense under the common law rule, but all moderation decisions. While small businesses are sued under any number of theories across this country ranging from false advertising to unfair and deceptive trade practices, Big Tech is largely exempt from these everyday challenges—regardless of the companies’ public, consumer-facing profession. Just think about Twitter executives’ public disavowals of shadow banning only to later learn that the company maintained blacklists without ever correcting the record in the same public way. You couldn’t run a lemonade stand like this without facing endless litigation, but Big Tech gets away with it.
WHERE WERE YOU AT THE START OF FIFTEEN DAYS TO SLOW THE SPREAD? I was working at a large commercial law firm, aware but not overly engaged in politics. Then came the economy-crushing, liberty-destroying lockdowns. Not long after that, my then-and-now partner Tony Biller and I got to work representing stay-at-home-moms and others who were arrested for street protests against Governor Cooper’s lockdowns. The Raleigh Police Department explained that protests were not an “essential activity” recognized by the Governor’s order. While our friends at the ACLU were working to empty North Carolina’s prisons, Tony and I got to work defending the First Amendment right to protest. In early April, we threatened to sue Governor Cooper, and he backed down. What we learned from Governor Cooper’s general counsel is that his orders had always provided for the constitutional right to protest. Sure thing.
Next came churches, who had decided that they could no longer “forsake the assembling together” as the author of Hebrews instructed, but had resolved “to obey God rather than men,” and resume in-person worship. Governor Cooper backed down again. We wanted to take the Governor on again on behalf of small businesses crushed by his arbitrary and capricious shutdown orders. That proved a bridge too far for my prior firm. I resolved to never be on the wrong side again.
I became aware of Alex’s reporting on Twitter while fighting for these clients during the early days of the pandemic. At the time, he was one of the only journalists out there asking critical questions about the various death and hospital capacity models, how the virus spread, and other issues. We used Alex’s reporting to challenge the Governor’s reading of the data.
Around the same time, I got an opportunity to serve in the Trump Administration at the U.S. Department of Health and Human Services, and to work as an attorney reporting to the General Counsel. There were numerous reasons to say no. My wife was pregnant with our fourth child at the time, and we already had three kids ages seven and under. She homeschools them all. We both sensed the country was at a tipping point, and we agreed that God had opened a door to serve, so we obeyed.
At the end of the Trump Administration, I flew out of Reagan National during Biden’s inauguration, and came home to our small farm outside Raleigh, far from K Street. In the meantime, the COVID-19 vaccine rollout was in full force. I decided against going back to Big Law, and joined Tony and others at Envisage Law, because I wanted the freedom to take on cases.
Alex kept reporting on COVID-19 throughout 2020, with Twitter serving as the primary outlet for his journalism. After the COVID-19 vaccines got regulatory authorization, Alex started critically reporting on the shots. A Twitter executive told Alex that the platform encouraged debate about COVID-19 on the platform, that his reporting on the shots shouldn’t be a problem, and that Alex had not appeared on any company blacklists.
And then, one week in July 2021, everything changed. On a Saturday, at CPAC, Alex commented on the government’s failure to “sucker” Americans into getting a COVID-19 shot. The very next day, Dr. Fauci called Alex’s remarks “horrifying.” Dr. Fauci said Alex was “someone saying that it’s a good thing for people not to try and save their lives.” Next came release of a Surgeon General Report on the need to confront health misinformation on social media. Later that week, Press Secretary Jen Psaki called for the social media platforms to lock arms on censorship and “bridge their properties” because “[y]ou shouldn’t be banned from one platform and not others if you—for providing misinformation out there.” Not to be outdone, on Friday, President Biden said social media platforms were “killing people” by not censoring speech about the COVID-19 vaccines. Less than four hours after President Biden’s comments, Twitter locked Alex out of his account for the first time. A little more than a month later, the company “permanently suspended [Alex] for repeated violations of our COVID-19 misinformation rules.” Alex immediately lost his 300,000-plus followers on Twitter.
SO HOW DO YOU FACE DOWN A BIG TECH GOLIATH? I have already described some of the challenges—the one-sided precedent and Section 230. For Twitter, you have to contend with onerous, one-sided terms of service which include waivers of liability and a requirement to bring all disputes in state or federal court in San Francisco, the company’s home base.
At the same time, California is a plaintiff-friendly jurisdiction. In law school, I remember reading opinions from former California Supreme Court Justice Roger Traynor, who my professors hailed as visionary. Critics argue that Justice Traynor was a judicial activist who created doctrines like strict products liability out of whole cloth to protect consumers against powerful corporate interests. In this sense, Justice Traynor was as much a judicial icon for the Left at the state level as his fellow Californian and contemporary, Chief Justice Earl Warren, was on the national level. Many of Justice Traynor’s opinions remain good law to this day. It was time to dust off his lessons and apply them to the Information Age.
Justice Traynor aside, we also had some good facts. Unlike the other failed cases, Alex had direct communications with a Twitter executive essentially telling him his reporting was okay. We also had better facts for a First Amendment claim, given key federal officials direct knowledge of Alex and his reporting and Twitter’s sudden about-face on his reporting. The other important point fact was that Twitter had also created a five-strike COVID-19 misleading information policy. In definite terms, the company defined what was — and what wasn’t — COVID-19 misinformation.
We also tested a new legal theory. Big Tech is not the first time our country grappled with concentrated corporate control over critical communication platforms. During the Telegraph Era, legislatures passed statutes requiring these platforms be treated as “common carriers,” introducing a non-discrimination principle requiring them to serve all members of the public. It turns out that California, Twitter’s home base, passed such a statute in 1872, defining all persons who offer to the public to carry messages as a common carrier. Twitter, which says it carries tens of millions of messages on behalf the public every day, certainly fits the bill.
So we sued in California, bringing eight different claims. The complaint weighed in at seventy pages.
IN THE TWELTH CHAPTER OF SECOND CORINTHIANS, St. Paul writes of a “thorn” in his flesh, which he begged God to take away. But God told Paul “My grace is sufficient for you, for my Power is perfected in weakness.”
Twitter moved to dismiss the entire case. I got as sick as I have ever been. Extreme fatigue, exhaustion, and physical weakness. Not just for days, but for weeks on end. Meanwhile, Twitter stacked its motion with citations to dozens of cases, perhaps in attempt to overload our skeleton crew—for the most part, it was Alex and I analyzing these cases. By the grace of God, we filed our response brief in March.
A hearing was scheduled for April. Seemingly, everything that could go wrong on the trip to California went wrong. The morning of the flight to San Francisco, my eight-year-old son and I stood in the longest security line I have ever seen, which caused us to miss our early-morning flight to San Francisco. We spent the day in the airport. We didn’t get into our hotel until 11:30 p.m. Pacific Time, with the hearing set for 8:30 a.m. the following morning.
The morning of the hearing, my wife sent me a critical reminder. And it had nothing to do with some point of argument I had tried out on her at the dinner table in the months leading up the hearing. Instead, it was a link to a Bible verse: 1 Corinthians chapter 1, verses 24 through 27. “God chose the foolishness things of the world to shame the wise; God chose the weak things of the world to shame the strong.” She then reminded me of a basic reality: God created the Universe, and everything in it, including the judge and the lawyers.
We got to the courtroom, where Judge William Alsup, a Clinton appointee, presided. A note on the outside of the courtroom door was discouraging. We were there to argue about COVID-19 misinformation, and the court required all visitors who had not received a COVID-19 vaccine to wear a mask. Great, I thought. So I get to face down a firing line of questions without being able to breathe freely.
Judge Alsup entered the courtroom. One side of the courtroom was wearing masks, the other was bare-faced.
“So it’s your motion, so you get to go first,” Judge Alsup said to Twitter. “I’ll just direct myself to our central point, which is that well-settled law requires dismissal of the plaintiff’s complaint,” Twitter’s lead counsel said. Then, everything changed. “There’s no case on point,” Judge Alsup said. “How can you say there’s well-settled law?”
Judge Alsup proceeded to rip into Twitter’s defenses. Minutes into the hearing, the Judge discussed Alex’s First Amendment claim. “Why don’t we get the depositions and bust this wide open? We’ll get depositions and find out what really happened here. Get your documents. I think they would be most interesting.”
And our much-maligned complaint? “I’ve read the complaint,” Judge Alsup said, “and it’s a pretty good complaint, better than most.” Next the court grilled Twitter on its COVID-19 speech code and the company’s statements to Alex. One of Twitter’s primary arguments at the hearing and in its briefing was that because its terms of service say it can terminate your account for “any or no reason,” then the case is over. Under Twitter’s theory, the company did not have to show Alex actually violated the speech code, and Twitter never tried to.
Judge Alsup picked up on our argument to the contrary. “[H]e says the five-strike policy superseded the terms of use, and it’s a plausible argument. At this stage, it has to be plausible only.” A few moments later, he told Twitter that “blather and talking points won’t help me any.”
I got up next. Judge Alsup pressed me on Section 230, and wanted to know why that statute was not sufficient to dismiss the common carrier and California state constitutional claims.
Twitter returned to the podium, and the sharp questioning continued. One of Twitter’s lawyers referred to the common carrier statute derisively as “a law written 150 years ago.” Judge Alsup did not receive the argument well. “[J]ust because you’re a young guy does not mean you get to denigrate first principles,” he said.
When it was all over, we walked out of the courtroom hopeful at least some of our claims would survive Twitter’s motion to dismiss.
The next day, I rented a convertible and started a drive down the Pacific Coast highway to Los Angeles with my father-in-law and son, who had accompanied me to the hearing on a homeschool field trip to remember. As we rounded a bend overlooking the Pacific Ocean in a black Ford Mustang, the order came in—the Court dismissed the First Amendment claim, the common carrier claim, and the California constitution claim, but Judge Alsup let our breach of contract and promissory estoppel claims move forward, rejecting Twitter’s “for any or no reason” escape hatch argument. Perhaps more importantly, he ordered Twitter to cough up its external and internal communications about Alex and his account. He also ordered that Twitter sit two of its executives for deposition. Again, as far as we know, no case like this had never made it this far.
God’s grace was sufficient indeed.
ULTIMATELY, ALEX AND TWITTER SETTLED THE CASE. This was Alex’s statement: “The parties have come to a mutually acceptable resolution. I have been reinstated. Twitter has acknowledged that my tweets should have not led to my suspension at that time.” Twitter later confirmed the same to the media.
Some of Alex’s previous supporters turned on him, accusing him of raising money to fund a lawsuit only to settle. Certain folks in right-wing media piled on. Let’s be clear: there’s no “grift” or ulterior motive—Alex takes positions, some of which I disagree with, because he believes them.
And, by the way, Alex delivered for his supporters. Long before Elon Musk acquired Twitter, Alex published the first installment of the Twitter Files. In August 2022, Alex reported on an internal Twitter Slack channel which showed that senior White House officials met with the company in April 2021 and asked pointedly why Alex had not already been suspended from the platform. As one of Twitter’s employees explained, the Biden Administration viewed Alex as one of the primary sources of vaccine misinformation.
Then in October 2022, Alex reported on how Scott Gottlieb, a former FDA Commissioner under President Trump, and a sitting member of the Board of Directors of COVID-19 vaccine manufacturer Pfizer, secretly advocated for the company to ban his account—all while the public was starting to debate vaccine mandates. Dr. Gottlieb e-mailed Twitter Alex’s fifth, ban-inducing strike, and even followed up after Alex briefly returned to the platform under a different account.
The press was not interested. Outside of Fox News and The Atlantic magazine, not a single mainstream media outlet in the United States has reported on Alex’s reinstatement or his follow-up reporting on the public and private sector efforts to silence him.
Alex said he was going to sue the Biden Administration and others involved in his deplatforming from Twitter. Earlier this month, he did.
WHAT DOES THIS ALL MEAN FOR THE FUTURE OF FREE SPEECH IN AMERICA? Many on the Right take a laissez-faire approach to the problem of social media censorship. These are private companies, the argument runs, and we should advocate for government to take a hands-off approach to the platforms. Over time, the market will reward platforms that engage in transparent practices and support free speech and punish those that engage in arbitrary and capricious censorship. “Build your own Twitter,” is a refrain you hear from time to time.
Let’s start with the threshold contention that these platforms are private companies. The evidence that emerged in Alex’s case, and what we are seeing come to light in the Twitter Files, shows that Twitter is far from a “private company”—it is deeply connected to state power. Former national security state officials line the ranks. Whether it was the Hunter Biden laptop story or COVID-19 vaccine critics, the company has shown it is more than willing to do the government’s bidding.
Big Tech did not arise out of some Lockean state of nature. Remember, it was a federal statute that swept away traditional tort rules to provide the industry with its top-down liability shield. Section 230 gave Big Tech a two-faced competitive advantage: the companies get treated like common carriers or mere conduits of information under Section 230, but simultaneously enjoy all the rights and privileges of a publisher, including First Amendment defenses. And that is not to mention the intellectual property advantages our nation’s laws secure for these companies. Copyright law helps Big Tech lock in its network advantages, blocking would-be market entrants from “scraping” data from existing platforms. Market incumbents also enjoy advantages through a complex web of data security and privacy regulations.
At a minimum, a Big Tech agenda for the Right should include removing the broad federal protections that shield the platforms from the legal scrutiny so many other businesses face. We are a common law country after all. This is what courts are for. Let the law develop on a platform-by-platform, case-by-case basis while working to lower barriers to competition at the same time.
My former Trump Administration colleague Adam Candeub, a law professor at Michigan State, and a leading thinker on Section 230 whose work Justice Clarence Thomas has cited, argues that the platforms are common carriers, which means they must serve all comers. Remarkably, Prodigy called itself a “common carrier” way back in 1995 in the case I previously discussed. This also how the Texas statute which was recently upheld by the Fifth Circuit against a First Amendment challenge treats the platforms. Supporters of decentralized government and a strict construction of the Constitution should welcome these State-based approaches to regulation, even if they disagree with how specific States tackle the problem.
Regardless, the raison d’être of the Right is not to prevent large technology companies from having to conduct fifty-state surveys for the States they operate in. That social media consumers might have different user experiences in different jurisdictions is a feature, not a bug, of the Constitution.
EVEN IF ALL THE PLATFORMS WERE COMMON CARRIERS, SELF-CENSORSHIP WOULD BE A PROBLEM. Jeff Deist has called political correctness “very real” and “deeply authoritarian.” He notes that offending PC sensibilities can lead to “the possible loss of one’s job, reputation, friends, and even family.”
Former Levi’s executive Jennifer Sey knows this firsthand. In her book Levi’s Unbuttoned, Sey chronicles her journey at Levi’s, rising through the ranks to Chief Marketing Officer, with a view to become CEO of the iconic jeans company. Sey delivered top-notch results for Levi’s. After the COVID-19 pandemic started, Sey started questioning the public policy response to the virus on social media, including San Franciso’s decision to shut down public schools. Sey’s husband Daniel Kotzin, who I represented against Twitter, also attacked COVID-19 lockdowns and criticized the vaccines. All this came to the attention of Levi’s management, which pressed her to stop talking.
Sey declined the invitation. She simply would not stay silent while many of her Levi’s colleagues were sending their own children to in-person private schools, all while working-class and poor families suffered through distance learning. A self-identified left-leaning progressive, this went against everything she believed. “But in the world of left-leaning ‘woke-ism,’ there is no forgiveness,” she writes. She walked away from her career, and a hefty severance, because some things are more important.
Undoubtedly, there were others in Levi’s who agreed with Sey, but they kept their heads down while their colleague was run out of the business. The outcome was a product of systematic cowardice. “The fact is, in business we need rabble-rousers and dissenters, even whistleblowers,” Sey writes. Ultimately, Levi’s lacked the courage to back one of their own.
We must be brave. Reading Sey’s story, I thought of Christ’s words in the Gospel of Mark. “Anyone who loves his father or mother more than Me is not worthy of Me,” and “anyone who does not take up his cross and follow Me is not worthy of me.” The strength to do that comes from the same source King Jesophat called on long ago in facing down his enemies: “Our God, will you not judge them? For we have no power to face this vast army that is attacking,” the King said. “We do not know what to do, but our eyes are on you.” You can continue imbibing all the vanities this world has to offer, or you can join Job at the whirlwind.
We must apply this resolve in our own house. Imagine if our country’s Founders sought approval from opponents of American independence for which views would be allowed to be aired in the Continental Congress. Would we have ever gotten the Declaration of Independence? In some cases, the Right inverts Kerensky’s statement “no enemies to the left” into “no friends to the right.”
Consider Darren Beattie’s story. Dr. Beattie lost his post as a speech writer for President Trump, not because of anything he said, but because of who he presented alongside at a conference. In New Testament terms, Dr. Beattie dined with tax collectors and sinners, and paid a price. An opposition that allows the likes of Chris Cuomo, Taylor Lorenz, or Ben Collins to gatekeep the frontiers of our minds is no opposition at all.
Woke enforcers cannot burn you at the stake. Professional and reputational loss is real, but most of us are not going to be become destitute for offending the PC gods. Practically, it could be the difference between driving a BMW and a late model Honda Accord.
We need more Alex Berensons, more Jennifer Seys, more Daniel Kotzins, more Darren Beatties, more people who refuse to bow the knee. We all have our spheres of influence. We all face moments where we stay silent when we know we should speak up. If we can resist the impulse to avoid conflict, if we press forward in good faith, that would go a long way toward making speech free again.
So let’s take Tucker Carlson’s advice and, as it says on the colonial-era Pine Tree Flag, lodge an appeal to heaven by praying for our families, our neighbors, our nation, our world—and yes, even for our enemies. Let’s “run the race that has been set before us.” Hebrews 12:1.
God help us. He helped me.
James R. Lawrence, III is a lawyer and partner at Envisage Law. He previously served as a Deputy General Counsel at the U.S. Department of Health and Human Services and was outgoing Chief Counsel of the Food and Drug Administration under President Donald J. Trump. He is a graduate of North Carolina State University. Follow him on Twitter.
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