'The truth lost': Appeals court clears Pfizer leaders in COVID vaccine critic's censorship lawsuit

Five months after the Trump administration settled with former New York Times drug industry reporter Alex Berenson for its predecessor's role in getting Twitter to deplatform the COVID-19 vaccine critic in 2021, the pharmaceutical leaders targeted by Berenson for their alleged conspiracy with the Biden administration have gotten off scot-free.

The 2nd U.S. Circuit Court of Appeals issued a summary order upholding the dismissal of the independent journalist's class-action lawsuit against Pfizer CEO Albert Bourla and board member Scott Gottlieb, who resigned as Food and Drug Administration commissioner months before joining Pfizer, days after disastrous oral arguments for Berenson's lawyer.

Twitter pulled the trigger against Berenson in August 2021 when he tweeted that COVID vaccines stop neither infection nor transmission, which the Biden administration tacitly acknowledged weeks earlier by recommending indoor masking for those "fully vaccinated" against COVID amid a barrage of breakthrough infections.

President Biden continued to falsely claim that COVID vaccines stop infection and transmission, the basis for his short-lived mandate on large employers, for at least the next several months, repeatedly using the phrase "pandemic of the unvaccinated" and saying vaccinated people "do not spread the disease to anyone else." 

The 2nd Circuit ruling reaffirmed the centrality of terms of service, which federal courts have long upheld as binding, in determining what tech platforms can do to users.

Twitter's were especially sweeping, giving the platform the right to suspend or terminate accounts "at any time for any or no reason," but Berenson argued the platform's five-strike policy against supposed COVID misinformation and "assurances" to Berenson from a Twitter executive that his posts were fine had modified the terms of service.

Berenson's original litigation in 2022 convinced U.S. District Judge William Alsup that Berenson plausibly alleged Twitter didn't follow the five-strike policy or "its specific commitments," made directly to Berenson by then-Vice President of Global Communications Brandon Borrman.

He accused Bourla and Gottlieb of discriminating against Twitter users like him who were unvaccinated against COVID, showing animus against them as a class of people, by colluding with the White House to silence Berenson on Twitter.

The appeals panel, nominated by presidents Clinton, George W. Bush and Trump, disagreed completely. Twitter's terms gave it the unqualified right to ban Berenson, and the Supreme Court discourages class actions based on shared desire to engage in disfavored conduct, such as forgoing COVID vaccination, it ruled Tuesday.

While Gottlieb's pressure on Twitter to silence users for COVID wrongthink has been thoroughly documented, both in Berenson's litigation and the Twitter Files, the panel emphasized Berenson didn't even allege Bourla talked to Twitter, just that Gottlieb colluded with the White House with Bourla's "full knowledge and approval." 

Judge Alsup's reasoning was "unpersuasive," the panel wrote. 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 he would necessarily receive advance notice of any action."

"We lost. I lost. The truth lost. Pfizer won," Berenson wrote in his newsletter Tuesday night, disclosing that "I was sure we had lost when I left the courtroom" Oct. 15.

Aside from the panel ignoring the evidence that "Scott Gottlieb conspired to get me forced off Twitter," Berenson said the ruling "really hurts" because it means he'll "never get to find out what really happened in 2021." He doubts the Supreme Court would review the case.

The 2nd Circuit "has a long history of extending civil rights protections to disfavored groups, even including Muslim and Arab men after Sept. 11," yet the panel "essentially laugh[ed] even at the idea that people unvaccinated against Covid had faced discrimination or animus in 2021, or that they had any claim to protection," he marveled in a subsequent post.

An 'aspirational' assurance or a landlord 'chang[ing] the bargain at the last minute'?

Berenson's partial legal victory against Twitter in 2022 prompted the platform to reinstate him and agree to a settlement that included internal emails Berenson would use in his litigation against the Biden administration for unconstitutional coercion of Twitter, since renamed X under Elon Musk's ownership.

He portrayed Gottlieb and Bourla as part of a cabal with Andy Slavitt, former senior adviser to the COVID-19 response coordinator, who hosted the duo on Slavitt's Pfizer-sponsored podcast. Berenson said censorship was "ultimately traceable" to Slavitt, who was dismissed as a defendant when Berenson's First Amendment claims were dismissed.

After Musk's acquisition, Twitter gave Berenson an Aug. 21, 2021, email from a Twitter lobbyist to his boss – several days before Berenson's permanent suspension – saying the lobbyist had contacted "WH, Andy and Scott Gottlieb" to "keep the target off our back." 

The Twitter Files showed Gottlieb also pressuring Twitter to censor his interim successor at the FDA for promoting natural immunity over vaccination.

The Oct. 15 hearing transcript shows immediate skepticism for arguments by Berenson's lawyer James Lawrence, especially his repeated invocation of Judge Alsup's analysis and "experience interpreting and applying California law," which determines whether Twitter modified its contract with Berenson at the time. (Musk subsequently moved X to Texas.)

"How is that a modification of a contract where it says they can [suspend a user] any time for any reason?" an unidentified judge asked Lawrence when he brought up Twitter VP Borrman's assurances to Berenson. 

"Is that a promise that you can rely on if your colleague said 'I'll try to be there at five' and you're going to count on it being there at five?" another judge asked. "It's aspirational." 

The better comparison is a California landlord telling a tenant for 11 months "you can turn in rent late" and then "chang[ing] the bargain at the last minute," Lawrence answered.

The panel gave Lawrence just one minute to defend Berenson's Section 1985 claim against Bourla and Gottlieb, for a "private conspiracy" that targets COVID-unvaccinated Americans as a class by getting Berenson kicked off Twitter.

"It has to be class-based animus, which you clearly don't have," a judge told Lawrence, noting SCOTUS rejected Section 1985 for conspiracies motivated by "economic or commercial animus" such as anti-unionization. 

Panel implies Berenson is a grifter

Lawrence objected to the panel's characterization of the class that Berenson asserted. It's not defined by "conduct" but by Berenson's right to "to speak on behalf of this class," which is Americans unvaccinated against COVID.

Pfizer lawyer James Rouhandeh faced almost no skepticism from the judges, arguing that because Berenson never claimed Bourla and Gottlieb "had any knowledge of those private assurances" from a Twitter executive, they couldn't commit "tortious interference."

Twitter also modified its terms of service nine days before Berenson's ban – several months after Borrman's assurances – to exclude any "representation or warranty, oral or written," that purports to modify the terms, Rouhandeh said.

Berenson took strong exception Wednesday to an exchange during Rouhandeh's argument, in which a judge speculated out of nowhere that Berenson was a grifter.

"There are a lot of people who inveigh against vaccination for political purposes, but they make darn sure to get themselves vaccinated nonetheless," the judge said after Rouhandeh confirmed the lawsuit doesn't allege Bourla and Gottlieb knew anything about Berenson's vaccination status. 

"I agree, Your Honor, that's been my personal experience," Rouhandeh responded, before another judge tried to steer the issue back to Berenson actually arguing animus against himself, not a class of unvaccinated people. The ruling emphasizes Berenson's lawsuit is "replete" with claims he was "specifically targeted."

The panel "not-so-subtly hinted" that Berenson "actually thought the jabs were protective and had intentionally misled you (and millions of Tucker Carlson and Joe Rogan viewers) and put you at risk for my own celebrity and financial gain, with Rouhandeh "slyly playing along with this slander," Berenson told readers Wednesday.

"So much disappointment in so little time, it felt like a typical New York Jets fourth quarter," the New York-based journalist said. "But seeing these theoretically neutral arbiters fall into the trap of their own prejudices was hard to face."