A federal appeals court has thrown out Alex Berenson's lawsuit over the permanent suspension of his Twitter account in 2021, rejecting his claim that the Biden administration and Pfizer executives conspired with the platform to silence him. The decision, issued by a three-judge panel of the U.S. Court of Appeals for the Second Circuit, upholds a lower court's dismissal of Berenson's civil rights conspiracy claim under 42 U.S.C. § 1985(3).
Berenson, a COVID-19 vaccine skeptic whose Twitter following grew from roughly 7,000 to over 229,000 during the pandemic, alleged that administration officials and Pfizer figures pressured Twitter to suspend him. He received strikes under Twitter's five-strike misinformation policy and was permanently suspended in August 2021. But the appeals court focused on a threshold requirement of § 1985(3): plaintiffs must show that the alleged conspiracy was driven by racial or otherwise class-based invidious discrimination.
The court noted that protected classes under the statute must possess "inherited or immutable characteristics," and that political parties have been recognized in some prior Second Circuit precedent. Berenson, however, defined his class as "Americans who had chosen not to receive a COVID-19 vaccine" or "did not want to be forced to take a shot." The panel agreed with the district court that this is "precisely the kind of class" the Supreme Court cautioned against in Bray v. Alexandria Women's Health Clinic—a group defined by a shared desire to engage in disfavored conduct, not by immutable status. Treating it as protected, the court wrote, would turn the civil rights statute into a general tort law, which the animus requirement was designed to avoid.