As Jimmy Kimmel Becomes a Speech Icon, Alex Berenson Fights on Alone

An imperious talk show host won the love of Hollywood and the ACLU, but to stop government pressure on companies, speech defenders need to recognize Alex Berenson

Last week, after ABC late night host Jimmy Kimmel infuriated conservatives with a monologue decrying the “MAGA gang” for “trying to characterize this kid who killed Charlie Kirk as anything other than one of them,” FCC Chair Brendan Carr railed against Disney on a podcast with Benny Johnson. “We can do this the easy way or the hard way,” Carr seethed. “These companies can find ways to take action on Kimmel or there is going to be additional work for the FCC ahead.”

Kimmel was fired by Disney, leading to an outpouring of support for the First Amendment that was heartening on one level, infuriating on another. Lame-duck comic Stephen Colbert unironically announced “We are all Jimmy Kimmel,” and 400+ Hollywood celebrities signed an ACLU letter in Kimmel’s defense, with Senators like Connecticut’s Richard Blumenthal citing an “unprecedented act of government censorship.”

It wasn’t unprecedented. A close analog to the Kimmel situation was already moving through courts in a high-profile First Amendment case called Berenson v. Biden. Just like Jimmy Kimmel, former New York Times reporter Alex Berenson was “jawboned” off a public platform. He was identified by a combination of White House officials and pharmaceutical executives as a voice they wanted to remove from Twitter for criticism of the Covid-19 vaccine. Also just like Kimmel, Berenson was actioned just after a high-profile government official made a televised complaint, in this case a July 16, 2021 appearance by Joe Biden:

Berenson was locked out of his account for the first time hours after Biden’s appearance. Weeks later, he was suspended for good. Not that it matters, but while Kimmel was threatened for inaccuracy, Berenson’s problems stemmed from being too accurate about the mRNA Covid vaccines, about everything from studies showing surprising inefficacy to potential links to myocarditis that even Biden’s CDC eventually acknowledged. Critics have gone after other Berenson statements, but the ones that got him in trouble were exactly what the Founders had in mind when they thought about speech: true statements made in opposition to an official propaganda campaign. The last straw was this accurate tweet from August 28, 2021:

It doesn’t stop infection. Or transmission. Don’t think of it as a vaccine. Think of it—at best—as a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS. And we want to mandate it? Insanity.

Berenson’s removal marked the end of a five-month campaign that involved current and former high-level officials from Pfizer and multiple government agencies. Onetime Biden official Andy Slavitt commemorated Berenson’s silencing by posting a screenshot of Berenson’s locked account. That tweet is still live:

What does this have to do with Kimmel, who’s been reinstated by Disney and returns to the air tonight in what will be hyped as the greatest First Amendment comeback since the Pentagon Papers? A lot.

First, Google just made a remarkable admission in a letter to House Judiciary Chair Jim Jordan, admitting it was censored during Covid. “Biden administration officials, including White House officials,” the firm wrote, “conducted repeated and sustained outreach” regarding “user-generated content related to the COVID-19 pandemic that did not violate its policies.” The firm added it was “unacceptable and wrong” when “any government” attempts to dictate content decisions. There were additional complaints about the “onerous obligations” of European laws like the Digital Services Act (Racket will have more on this soon).

Even though Berenson’s case is built around Twitter and not YouTube, Google’s admissions leave no doubt about the “repeated and sustained” censorship of that era, which everyone seems to be forgetting. While people like Kimmel and Colbert were swimming in bucks pumping out grotesque vaccine propaganda, the primary victims were people like Berenson.

“It’s just more evidence,” Berenson says of the Google news. “The companies can say they acted independently, but they’re acknowledging they felt pressure.”

More importantly, this case is alive and in the hands of the Trump administration. If new speech converts want to pressure this White House, this is one place to do it.

Just a few months before Brendan Carr’s outburst, Biden-appointed Judge Jessica G. L. Clarke of the Southern District of New York handed down a ruling in Berenson’s case that should have shocked speech advocates. On July 14th, Clarke dismissed the private defendants, writing:

Plaintiff lacks standing to assert a First Amendment claim against Slavitt because Berenson cannot obtain equitable relief or Bivens monetary damages against him.

This seeming throwaway line packed a wallop, as a frustrated Berenson wrote on his Substack in July.

“Clarke found that my core First Amendment claims are barred not because I couldn’t prove the White House censored me or I was injured as a result,” he said, “but because the Supreme Court has not allowed for money damages against the federal government for First Amendment violations.”

He was referring to so-called Bivens actions, which allow citizens to sue for federal rights violations only in certain circumstances (until now, not on First Amendment grounds). Paired with the problem of ordering injunctive relief in a speech case — the analogous action for Kimmel would be forcing Disney to re-hire him, which would create a new speech violation — Clarke essentially ruled that since people censored via third parties aren’t entitled to relief, his case has to be dismissed.

It was bad enough that everyone in media missed this ruling when it happened, including me, but now? Berenson has been hopping mad since the Kimmel brouhaha kicked off, and has a right to be, since his case speaks directly to the Kimmel issue, and former colleagues still won’t shine a light.

“It’s a flaw in the law and it doesn’t just apply to me. It’s wrong philosophically that you can’t get damages from the federal government for a violation of your First Amendment rights,” Berenson says. “And it would have been the same thing for Jimmy Kimmel.”

When he won last year’s election, Trump took over for the Biden defendants in Berenson’s case. After Clarke’s decision, Trump defendants are the only ones left in the case. It wouldn’t help with the gaping loophole that now appears to exist with third party censorship, but it would set a cost for violating speech rights. The administration’s hesitancy to make good with Berenson is at best curious, and Judge Clarke’s own mysterious failure to dismiss with regard to the Trump administration opens the door for a message to be sent.

For administration critics who’ll cheer their next-gen Lenny Bruce on ABC tonight, why not also push Trump to make a meaningful gesture toward the First Amendment by settling with someone he doesn’t even hate?

THEY WENT THERE: USA Today invoked Lenny Bruce in its Kimmel coverage

If the ACLU can get Tom Hanks, Meryl Streep, Ben Stiller and 400 other stars for Kimmel, they really can’t organize twenty signatures for a case right down the fairway of their historical mission? Sadly, it’s obvious why it won’t happen:

When Kimmel was fired by Disney, commentators rushed to speculate about a suit, with Politico going so far as to say Kimmel “should have strong odds at the Supreme Court.” Politico’s ostensible point was that unlike the Murthy v. Missouri Supreme Court case, in which defendants like NIH Director Jay Bhattacharya were sent back down to the lower court because (as Politico put it) “they could not link anything the federal government did to the suppression of their speech,” Kimmel had a great shot. As University of Chicago law professor Aziz Huq put it, “the evidence of ‘specific causation’” with Kimmel was “plain to see.”

Berenson has a better case than either Kimmel or the Murthy defendants. The Supreme Court claimed the Murthy defendants failed to prove a “substantial risk of future injury that is traceable to the government defendants” — in other words, even if plaintiffs like Bhattacharya could prove they were suppressed, they couldn’t “trace” the suppression back to specific government action. Berenson doesn’t have that problem. The last reporter to have access to the Twitter Files, he obtained documents that firmly demonstrated causation and eviscerated the “traceability” problem that sank Murthy. This is one of the reasons why it’s important to get a settlement. If someone with such extraordinary access to the scene of the crime can’t win, who can?

As bad as the Murthy evidence was, the Berenson material was worse. As reported by David Zweig, Twitter head of Government Affairs Lauren Culbertson wrote, “one of the first meeting requests from the Biden White House was about COVID-19 misinformation” and “Biden’s staff focused on vaccines and high-profile anti-vaxxer accounts, including Alex Berenson.”

Berenson wasn’t an “anti-vaxxer.” He favored mRNA treatments for people over 70 and suggested people between 50-70 make a choice based on “personal risk factors.” To the Biden White House, he was a threat precisely because he wasn’t crazy. As an email from White House Digital Policy Director Rob Flaherty to Facebook read, the White House knew “the problem does not fit in ‘microchips’-land,” but in the “‘skeptical’… What actions are being taken on ‘skepticism’?”

In a Slack discussion the next day, Twitter employees described getting “one really tough question” from the White House “about why Alex Berenson hadn’t been kicked off the platform.” One employee noted official Andy Slavitt “really wanted to know about Alex Berenson” because of his impact on the “persuadable public.” Subsequent contacts by former FDA Commissioner and Pfizer board member Dr. Scott Gottlieb inquired about Berenson’s status and whether or not his statements earned “strikes” toward removal.

Biden meanwhile had already given his public speech about social media “killing” people and the White House separately issued statements about the platforms, saying, “They should be held accountable” for misinformation. Finally, on August 28th, Berenson was removed, leading to Slavitt’s vile digital Gronk spike.

Noting that the Supreme Court under John Roberts has “reexamined the law and Constitution on many fronts,” Berenson doesn’t think the door should be closed on speech claims of his type. Judge Clarke, he wrote, “is right that until now the Supreme Court hasn’t allowed those types of damage suits against the government. But that’s an issue I would happily raise on appeal.”

If nothing else, the Kimmel case fully revealed the prior era’s speech hypocrites. Derek Thompson, who wrote a sleazy hit piece for the Atlantic about Berenson called “The Pandemic’s Wrongest Man,” all but admitted that the Biden administration censored people, but for better reasons:

The Biden administration working with social media companies to throttle what they considered COVID misinformation might or might not have been legally principled, but it did at least pretend to have a substantive moral argument that was something like, "We don’t want people to die and we’re willing to take drastic steps to block information we believe might lead to their death.”

The moral argument for the FCC and president going around telling media companies to fire their progressive talent or else risk the wrath of the state seems to be “we believe we were treated unfairly, and now we have power, so suck it, losers,” which I understand as an emotional reaction, but… I haven’t heard anybody even pretend that there’s a deeper principle at stake here.

It’s an open admission: our censoring was better than yours, and we’ll go back to doing it when we have a chance. Can’t that bluff be called?