We have covered several vaccine cases over the last few months, but Berenson v. Gottlieb et al., 2026 WL 3135334 (2d Cir. Oct. 20, 2026), is of a different sort. The plaintiff is a fairly famous writer who once worked for The New York Times, has written several books, and is now characterized by the court as an “independent journalist.” In his appellate brief, the plaintiff characterized himself as “a vocal critic of the public policy response to COVID-19, questioning the underlying evidentiary basis for business and school closures.” 

Today’s case arose when the plaintiff sued several government officials, the government, and the CEO of a vaccine manufacturer, claiming that they conspired to suppress his views expressed on social media. The specific claims were for (1) violation of the First Amendment; (2) a conspiracy to suppress the plaintiff’s speech in violation of 42 U.S.C. Section 1985(3); and (3) tortious interference with the plaintiff’s contractual relationship with Twitter. Let’s start with some technical, nominal, cleanup matters. The first named defendant, Scott Gottlieb was both a former FDA Commissioner and a member of Pfizer’s Board of Directors. Maybe this constitutes a disclosure of our priors, but we always found Gottlieb to be one of the more rational commentators when COVID-19 policy was addressed on the Sunday morning shows. The plaintiff also sued President Biden in his official capacity, and that was later automatically changed to President Trump. That is not exactly ironic, but it is a bit strange. Anyway, the plaintiff ended up stipulating to the dismissal of the federal defendants, so the First Amendment claim went away before the Second Circuit could wrestle with it. The Twitter contract was governed by California law, but the interference claim was governed by New York law. Got it? The posture on appeal was that, in a series of orders, the district court dismissed all the claims against everyone. What was on appeal were the dismissals of the section 1985 claim and the New York interference claim. 

The plaintiff’s main beef was that Twitter/X applied its “five strike rule” to suspend the plaintiff’s Twitter account permanently. Under the five strike rule, increasing instances of “Covid-19 misinformation” led to “increasing levels of discipline,” ranging from a warning to temporary account locks to a “permanent suspension.” The five strike rule went into effect on March 1, 2021, while the Covid debate was going full throttle. The plaintiff contacted Twitter about the policy and was told that the points he was raising “should not be an issue at all.” Nevertheless, as the plaintiff tells it, the Biden administration pressured Twitter to misapply the five strikes policy and shut down the plaintiff’s tweets. 

The Second Circuit affirmed the district court’s dismissal of the case. The plaintiff’s §1985 claim failed because antivaxxers and their circle (“Americans who had chosen not to receive a COVID-19 vaccine”) are not a protected class. Rather, such a “class” is of precisely the type that the Supreme Court held does not legally exist − a class of individuals who share a desire to engage in conduct (not getting vaccinated) that the defendants allegedly disfavored.

As an initial matter, there is a difference between a group with immutable characteristics and a group that has certain policy predilections.  The plaintiff tried to get around that distinction by asserting that his proposed affected class included “a disproportionate number of African-Americans, political conservatives, and evangelical Christians.” The Second Circuit expressed skepticism about this forensic maneuver, and swatted it away by holding that section 1985 plaintiffs cannot proceed by arguing disparate impact. More to the point, the court reasoned that the plaintiff’s dispute is that he, personally, was targeted, not any class.  Accordingly, the §1985 claim necessarily failed because the statute is directed against class-based discrimination. 

Next, we get to the claim for tortious interference.  Essentially, the court held that the contract had been enforced by Twitter, not interfered with by the defendants. Twitter’s contract with the plaintiff specified that his account could be terminated at any time for no reason. Thus, according to the court, Twitter’s five-strike policy was actually more generous to plaintiff than necessary under the contract.  None of the plaintiff’s claimed private conversations, with whatever comforting assurances by Twitter personnel, changed that. Thus, there “was no modification of that contract and [the plaintiff] has failed to allege an actual breach of contract.”