Appeals Court Throws Out Alex Berenson’s Case Against Pfizer Executives

Authored by Zachary Stieber via The Epoch Times,

A federal appeals court has thrown out a lawsuit from independent journalist Alex Berenson accusing Pfizer executives of pressuring Twitter to censor him because of his comments opposing COVID-19 vaccines.

A unanimous panel of U.S. Court of Appeals for the Second Circuit judges on Oct. 20 determined that Twitter’s terms of service were not altered by a subsequent “five strikes” policy and promises made to Berenson that his posts on COVID-19 vaccines would not lead to strikes.

The terms said that Twitter may suspend or terminate an account “at any time for any or no reason,” including for violations of Twitter rules and policies.

“The five-strike policy is clearly among the ‘Rules and Policies’ that the Terms of Service contemplates,” the circuit judges said in the decision.

“However, the provision makes clear that suspension or termination of an account is not limited to violations of that policy; rather, as noted above, such suspension or termination could be ‘at any time for any or no reason.’

“Thus, the five-strike policy is not wholly incompatible or inconsistent with the Terms of Service and did not modify it.“

Twitter executive Brandon Borrman’s comments to Berenson before he was banned from Twitter – including that “the points you’re raising should not be an issue at all” – are too vague to modify the terms of service, the panel also said.

The appeals court judges also agreed with other conclusions from U.S. District Judge Jessica Clarke, a New York-based judge who wrote in a 2025 decision that Berenson “has not plausibly alleged the existence of a cognizable protected class, or any discriminatory animus” from the Pfizer executives.

Berenson had said he was part of a class of people who declined to take the COVID-19 vaccine, and that the executives showed animus against them.

Government defendants previously conceded that the government violated Berenson’s First Amendment rights “by exerting substantial coercive pressure on social media companies such as Twitter to suppress disfavored speech.”

Berenson told The Epoch Times via email on Thursday that he was “disappointed the judges did not follow the lead of the federal judge in California who found I had presented evidence of a valid and enforceable contract with Twitter.”

He added he was “even more disappointed they didn’t recognize the discrimination that I, and other Covid unvaccinated people, faced in 2021.”

U.S. District Judge William Alsup, based in California, said in a separate case that Berenson brought against Twitter that the five-strike policy and the assurances Borrman gave to Berenson modified the contract between Twitter and Berenson.

That finding led to a settlement between Berenson and the social media company, which is now known as X.

Berenson said that he and his legal team “are considering all options.”

A lawyer representing the executives did not return a request for comment by publication time.