The Trump administration recently axed its predecessor's social media censorship machine in a "big freaking" consent decree with Missouri, Louisiana and individual victims of suppression – notable for letting the plaintiffs recover attorney's fees and explicitly acknowledging they are "prevailing parties" for the purpose of attorney's fees.

But the feds didn't wait for a court to approve attorney's fees for the plaintiff in a similar, long-running case – this one challenging the Biden administration's suppression of disfavored narratives via pressure on tech platforms, paying former New York Times drug industry reporter Alex Berenson $150,000 and acknowledging the government's role in his censorship by Twitter.

Berenson gave Just the News a copy of his settlement with federal defendants – the U.S. government, President Trump and Office of the Surgeon General — which they reached before the 2nd U.S. Circuit Court of Appeals could review Berenson's appeal of a lower court's September ruling for the feds.

It's an about-face for the Trump administration, which had asked U.S. District Judge Jessica Clarke for time to re-evaluate the government's position after Trump's return to office but then continued his predecessor's argument to dismiss the independent journalist's case.

The settlement, which Berenson has yet to publicly post, explicitly preserves his claims against the remaining defendants in the lawsuit.

'I almost didn't take the deal'

Berenson's still appealing Clarke's July ruling for Pfizer Chair and CEO Albert Bourla and board Director Scott Gottlieb, also Trump's first-term Food and Drug Administration commissioner, whom Berenson alleged conspired with the feds to coerce X, then Twitter, to deplatform him in 2021 for his skepticism of COVID-19 vaccines.

Berenson compelled Twitter to reinstate his account four years ago and reached a settlement with the platform that included internal emails Berenson then used as evidence of unconstitutional coercion in his lawsuit against the feds, including Biden White House senior adviser Andy Slavitt. The Twitter Files revealed more.

Bourla and Gottlieb filed their joint brief with the 2nd Circuit on Monday, the same day Berenson and the feds informed the appeals court they resolved their dispute. 

The federal acknowledgment in the settlement could be "crucial" to his Pfizer appeal, Berenson told readers of his newsletter Monday in announcing the "six-figure settlement." He disclosed the specific amount Tuesday, saying it will help pay for the appeal but is "not life-changing."

After already agreeing not to seek a consent decree binding on the feds, Berenson said, "I almost didn't take the deal" for $150,000 because the Justice Department was resisting language requested by Berenson's counsel, former Trump administration lawyer James Lawrence, that the feds acknowledge Berenson was censored.

National Institutes of Health Director Jay Bhattacharya "repeatedly mentioned" Berenson's censorship at a dinner last week that both attended, cementing his resolution to hold out, Berenson said. 

"You did it, man," Bhattacharya told him after the settlement was filed Monday, according to Berenson.

The parties agreed on the language on the eve of a deadline for the government to respond to the 2nd Circuit appeal, and it's notably flattering to President Trump.

As recognized by Trump's second-term Inauguration Day executive order "ending federal censorship," the government "did in fact violate the First Amendment by exerting substantial coercive pressure on social media companies such as Twitter to suppress disfavored speech like Plaintiff’s," the settlement reads, repeatedly citing that order.

It also invokes Trump's July 21 "Promises Made, Promises Kept" statement "rightly and deservedly taking pride in his delivering on core campaign promises," including to "bust up the censorship regime."

Berenson and Lawrence "believe this settlement marks the first time any individual American has received a cash payment to resolve a lawsuit over government coercion of social media companies," Berenson wrote.

Unvaccinated Americans as a class with First Amendment rights

"This case's posture is remarkable," says Berenson's appellate brief, noting the government "now concedes that federal officials violated the First Amendment" after waving away the detailed allegations in the first two versions of his lawsuit. (Filed in February, the brief predates the consent decree in the Missouri-Louisiana case.)

The defendants targeted Berenson for censorship "by reason of his status as a representative speaking for and to unvaccinated Americans," and Judge Clarke botched the question of "whether unvaccinated people as a class have a First Amendment right to speak and hear opinions and reporting without federal interference," the brief says.

He unambiguously has "traceability" – hard evidence that Twitter never restricted or warned Berenson, and even assured him his name hadn't come up in White House conversations about COVID misinformation, before the platform's April 2021 meeting with Biden adviser Slavitt and White House Director of Digital Strategy Rob Flaherty, revealed in Twitter's internal records.

Berenson was the only name discussed at that meeting, with officials asking why he hadn't been deplatformed and calling Berenson "ground zero for covid misinformation." Another Twitter employee told a colleague, "They really wanted to know about Alex Berenson."

Shortly after Twitter locked Berenson out of his account for the first time, Gottlieb and Slavitt – who had recently departed the White House but publicly said he remained in close contact – "held behind-the-scenes meetings with Twitter, contacts Twitter itself linked to the Government’s overall efforts regarding social media," the appeal says.

Days before Berenson's ban, a Twitter lobbyist described updating the White House, Slavitt and Gottlieb on its misinformation enforcement "to keep the target off our back."

The same lobbyist delivered Gottlieb's "knock-out blow" by pushing the former FDA commissioner's complaint about Berenson's last-straw tweet, that COVID vaccines neither stop transmission nor infection, "through Twitter’s content moderation channels on a Saturday night," weeks before President Biden mandated jabs on workers nationwide.

Vaccination cannot be 'inherited or immutable,' so it's not a class

Bourla first appears alongside Slavitt and Gottlieb, all accused of "tortious interference with contract" for getting Berenson deplatformed, when Slavitt "interviewed" him in late July 2021, a month before Berenson's ban. The Pfizer chief went to the White House with its general counsel the same week, when Twitter issued Berenson a third "strike," the appeal emphasizes.

A footnote answers Judge Clarke's confusion on how Bourla was involved. The Pfizer chief "maintained a close working relationship" with Gottlieb and described speakers like Berenson as "criminals because they have cost literally millions of lives" through COVID misinformation, so it's a "reasonable inference" that Bourla supported Gottlieb's vendetta against Berenson.

The May 11 response brief by Gottlieb and Bourla – Slavitt is not part of the appeal – defends Clarke's dismissal on the grounds that "Berenson failed to plead a cognizable class," unvaccinated Americans, and "class-based discriminatory animus," or even allege "an actionable conspiracy" involving Gottlieb or Bourla.

The 2nd Circuit has already ruled that the federal statute authorizing recovery of damages from individuals conspiring to interfere with civil rights applies only to classes defined by "inherited or immutable characteristics," and the Supreme Court has never applied it beyond "race-based classes," their joint brief says.

"As every court to answer the question has held, vaccination status is categorically different. It is defined by a single decision about a specific medical product," and because "every person who is now vaccinated was once unvaccinated" it cannot be inherited or immutable, they said. "Berenson offers no response to any of this controlling authority."

Clarke correctly read Berenson's allegations as saying the defendants targeted him "because of the perceived danger of his reporting, not because of his vaccination status," and he never alleged they "even knew that status, much less acted because of it," the brief says.