Petition for Writ of Certiorari — In Re Daniel E. Hall, Petitioner
Supreme Court briefNov 7, 2024
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DANIEL E. HALL, PETITIONER
v.
TWITTER, INC., RESPONDENT
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
ATTACHED APPENDIX I- COURT ORDERS
Daniel E. Hall
Petitioner, Pro Se
Aka. Sensa Verogna
393 Merrimack Street
Manchester, N.H. 03103
SensaVerogna@gmail.com
September 15, 2024
Case: 23-1555
Document: 00118149420
Page: 1
Date Filed: 05/28/2024
Entry ID: 6645011
United States Court of Appeals
For the First Circuit
No. 23-1555
DANIEL E. HALL, a/k/a Sensa Verogna,
Plaintiff - Appellant,
v.
TWITTER, INC.,
Defendant - Appellee.
Before
Kayatta, Gelpi and Montecalvo,
Circuit Judges.
JUDGMENT
Entered: May 28, 2024
Plaintiff appeals the dismissal of his complaint against Twitter, Inc. (now X Corp.). We
have carefully considered the filings of the parties and the district court record.
Plaintiffs multiple motions to take judicial notice are resolved as follows: we have
reviewed the submitted documents and have taken judicial notice of any proffered materials to the
extent they are relevant and appropriate for consideration for purposes of this appeal.
We review the dismissal of plaintiffs complaint de novo. See, e.g.. Cardigan Mountain
Sch. v. New Hampshire Ins. Co.. 787 F.3d 82, 84 (1st Cir. 2015). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009);
Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 555 (2007) ("[f]actual allegations must be enough to
raise a right to relief above the speculative level....").
After thorough review, we agree with the district court that plaintiff failed to plead facts
Sufficient to make out a plausible claim that Twitter suspended his account on the basis of race or
that Twitter is a state actor for constitutional purposes under the circumstances of this case. See
Doe v. Brown Univ.. 43 F.4th 195, 208 (1st Cir. 2022) (explaining that a § 1981 claim requires
PETITIONER HALL'S
EXHIBIT A
Case: 23-1555
Document: 00118149420
Page: 2
Date Filed: 05/28/2024
Entry ID: 6645011
proof of an intent to discriminate on the basis of race); Manhattan Comm. Access Corp. v. Halleck.
587 U.S. 802 (2019) (explaining requirements for a private entity to be deemed a state actor).
Plaintiffs other arguments are rejected as meritless.
To the extent not mooted by the foregoing, all remaining motions are denied. See 1st Cir.
L. R. 27.0(c).
By the Court:
Maria R. Hamilton, Clerk
cc:
Daniel E. Hall
Demetrio F. Aspiras III
Kenneth Michael Trujillo-Jamison
David M. Lieberman
PETITIONER HALL'S
EXHIBIT A
Case: 23-1555
Document: 00118164744
Page: 1
Date Filed: 07/10/2024
Entry ID: 6653555
United States Court of Appeals
For the First Circuit
No. 23-1555
DANIEL E. HALL, a/k/a Sensa Verogna,
Plaintiff - Appellant,
v.
TWITTER, INC.,
Defendant - Appellee.
Before
Barron, Chief Judge.
Kayatta, Gelpi, Montecalvo
Rikelman and A frame*, Circuit Judges.
ORDER OF COURT
. Entered: July 10, 2024
The petition for rehearing having been denied by the panel of judges who decided the case
and the petition for rehearing en banc having been submitted to the active judges of this court and
a majority of the judges not having voted that the case be heard en banc, it is ordered that the
petition for rehearing and petition for rehearing en banc be denied.
By the Court:
Maria R. Hamilton, Clerk
cc:
Daniel E. Hall, Demetrio F. Aspiras III, Kenneth Michael Trujillo-Jamison, David M. Lieberman
* Judge Aframe is recused and did not participate in the determination of this matter.
PETITIONER HALL'S
EXHIBIT B
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 1 of 13
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel E. Hall
v.
Case No. 20-cv-536-SE
Opinion No. 2023 DNH 054
Twitter, Inc.
ORDER
Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981,
prohibits discrimination on the basis of race. But it does not
protect against discrimination based on a person's political
beliefs, even when those political beliefs are purportedly
favored by a particular race. At bottom, that is what plaintiff
Daniel Hall's complaint alleges: that defendant Twitter, Inc.
suspended his account because of his conservative viewpoints,
and that Twitter's action constitutes racial discrimination
because he and the majority of conservatives are white. Case law
directly contradicts that theory and, as such, Hall's § 1981
claim fails. So, too, do his other theories of liability against
Twitter and the court therefore grants Twitter's motion to
dismiss. Doc. no. 3.
Standard of Review
"To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 2 of 13
relief that is plausible on its face. "i Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)
(quotation omitted). Under this
plausibility standard, the plaintiff must plead "factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. This
pleading requirement demands "more than a sheer possibility that
[the] defendant has acted unlawfully," or "facts that are merely
consistent with [the] defendant's liability." Id.
(quotation
omitted). Although the complaint need not set forth detailed
factual allegations, it must provide "more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." Id.
In deciding a motion to dismiss, the court takes the nonconclusory factual allegations in the complaint as true and
resolves reasonable inferences in favor of the nonmoving party.
Doe v. Stonehill College, Inc., 55 F.4th 302, 316 (1st Cir.
2022). The court "may also consider facts subject to judicial
notice, implications from documents incorporated into the
complaint, and concessions in the complainant's response to the
motion to dismiss." Breiding v. Eversource Energy, 939 F.3d 47,
1 Hall's complaint is 57 pages long and is accompanied by
429 pages of exhibits. Although a motion to dismiss is
ordinarily based on the properly pleaded allegations in the
complaint, exhibits attached to the complaint are considered
part of the complaint for the purposes of a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Trans-Spec Truck
Serv., Inc, v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.
2008).
2
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 3 of 13
49 (1st Cir. 2019)
(quotation omitted). When the plaintiff is a
pro se litigant, the court construes his complaint liberally.
Boivin v. Black, 225 F. 3d 36, 43 (1st Cir. 2000).
Background
Hall's relationship with Twitter began in March 2019 when
he signed a Twitter user agreement for services through the
website Twitter.com, under the pseudonym "Senza Vergogna. "2
Hall alleges that on December 5, 2019, Twitter banned him from
using many of the services offered at Twitter.com. He states
that he is still able to log into his Twitter.com account,
@Basta_Lies, but his cover photograph is blocked out and his
posted materials and followers are missing. Hall has learned
that his account does not exist except to him.
The problems between Hall and Twitter began with a Tweet he
posted in late 2019:
If I had special powers I would reach through that
video and Bitch slap that commie Bitch who is yelling
like a 3-year old!!!
2 In the exhibits submitted with his complaint, Hall's
pseudonym is "Senza Vergogna" and his Twitter- account is
identified as "Senza Vergogna @ Basta_Lies." Hall identified
himself as "Sensa Verogna" in his complaint filed in this case
and in subsequent filings. The correct spelling of Hall's
pseudonym is not material, however, because the court denied
Hall's request to proceed under his pseudonym. Doc. no. 54.
3
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 4 of 13
Doc. no. 1, 51 18(a). In response, Twitter locked Hall's account
on November 7, 2019, for seven days for violating Twitter's
rules against hateful conduct and stated that:
You may not promote violence against, threaten, or
harass other people on the basis of race, ethnicity,
national origin, sexual orientation, gender, gender
identity, religious affiliation, age, disability, or
serious disease.
Id. Twitter notified Hall "that repeated violations may lead to
a permanent suspension of [his] account." Doc. no. 1-2 at 72.
Undeterred by Twitter's warning, Hall posted a Tweet,
apparently aimed at a woman who was the subject of a Washington
Post article about how President Trump had belittled her. Doc.
no. 1-2 at 74. Hall wrote:
Ya, let's all get all cutesy with a fkcn #Traitor who
should be hung if found guilty!!
Doc. no. 1, H 18(b). On December 5, 2019, Twitter permanently
suspended Hall's account because he violated Twitter's rules
against abuse and harassment and provided the following notice:
You may not engage in the targeted harassment of
someone, or incite other people to do so. This
includes wishing or hoping that someone experiences
physical harm.
Doc. no. 1-2 at 73. Twitter also notified Hall that "if you
attempt to evade a permanent suspension by creating new
accounts, we will suspend your new accounts." Id.
4
PETITIONER HALL’S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 5 of 13
Hall appealed Twitter's decision to suspend his account,
asserting that the cited Tweet did not violate Twitter's rules
because it only recited the United States Code that a traitor
who is found guilty of treason would or could be hung. Doc. no.
1-2 at 76. On December 7, 2019, Twitter notified Hall that his
account would not be restored because his Tweets were in
violation of the Twitter rules against targeted abuse. Doc. no.
1-2 at 79.
Hall filed the instant suit against Twitter in May 2020.
Doc. no. 1. He alleges claims that Twitter's decision to suspend
his account violated 42 U.S.C. § 1981 (Count I); Title II of the
Civil Rights Act, 42 U.S.C. § 2000a, and RSA 354-A:17
(Count
II); and his state and federal constitutional rights (Count
III). Hall filed a series of motions for legal determinations
about Twitter's status, requesting to be allowed to proceed
anonymously, and other matters. The court largely denied Hall's
motions. Doc. no. 54 & endorsed orders July 8, 2020, through
September 28, 2020.
Hall then filed several interlocutory appeals. Doc. nos.
57, 63, 64, & 69. While Hall's appeals were pending, this court
denied Twitter's motion to dismiss (doc. no. 3), along with
other pending motions, without prejudice to the parties' right
to renew the motions after the First Circuit Court of Appeals
resolved Hall's interlocutory- appeals. Endorsed Order March 8,
5
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 6 of 13
2021. Despite his pending appeals, Hall continued to file
motions, which the court denied. Hall filed another
interlocutory appeal on April 19, 2021, and an amended notice of
interlocutory appeal on April 26, 2021. Doc. nos. 78 & 81. The
First Circuit Court of Appeals affirmed the court's orders and
dismissed Hall's remaining appeals, but Hall moved for
rehearing. Doc. no. 87 & endorsed order Sept. 15, 2022. The
First Circuit issued its mandate on Hall's interlocutory appeals
on September 29, 2022, which allowed the case to proceed.3
As permitted, the parties then renewed several of their
motions that the court had denied without prejudice pending
resolution of the interlocutory appeals. Hall also moved for the
recusal of the undersigned judge and to transfer the case to a
different district. The court denied both motions. Endorsed
Order Nov. 23, 2022. Hall filed an interlocutory appeal of the
order denying those motions. Doc. no. 125. Hall then withdrew
his appeal, and the First Circuit issued its mandate on January
5, 2023.
3 Because of the possibility of the appearance of partiality
after the merger of the law firm representing Twitter with
another firm with whom the sitting judge, Judge McAuliffe, has a
relationship, he recused himself from the case on October 11,
2022. See doc. no. 98. The case was then reassigned to the
undersigned judge.
6
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 7 of 13
The court has ruled on all pending motions other than
Twitter's renewed motion to dismiss. With Hall's most recent
interlocutory appeal now resolved, the court turns to that
motion.
Discussion
In support of dismissal, Twitter argues that each Count
fails to allege at least one necessary element. Twitter also
contends thsit it is immune from Hall's claims under the
Communications Decency Act ("CDA"), 47 U.S.C. § 230.4 Hall
disputes Twitter's arguments and contends that the court should
permit his claims to proceed.
I. Count I
Racial Discrimination in Violation of § 1981
In Count I, Hall alleges that Twitter violated the
provisions of 42 U.S.C. § 1981 by discriminating against him on
the basis of race, that is, "because he was white." Doc. no. 1,
SISI 141, 147. Twitter argues that Hall fails to allege any basis
for racial discrimination.
Section 1981 provides that "[a]11 persons within the
jurisdiction of the United States shall have the same right in
4 Alternatively, Twitter asks that the court transfer the
case, or any part that remains after the court decides the
motion to dismiss, to the Northern District of California.
7
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 8 of 13
every State and Territory to make and enforce contracts ... as
is enjoyed by white citizens."5 An essential element of a viable
claim of racial discrimination under § 1981 is that the
defendant discriminated against the plaintiff on the basis of
his or her race. See, e.g., Hammond v. Kmart Corp., 733 F.3d
360, 362 (1st Cir. 2013); Garrett v. Tandy Corp., 295 F.3d 94,
98 (1st Cir. 2002) .
Although Hall acknowledges that he operated his Twitter
account pseudonymously, he alleges that Twitter was aware that
he was white because he espoused Republican and conservative
viewpoints in his Tweets. His complaint cites a research study
stating that "Republican and Republican-leaning voters continue .
to be overwhelmingly white: 83% of Republican registered voters
are white non-Hispanics with conservative beliefs, similar to"
his beliefs. Doc. no. 1, I 23. He contends that because
Republicans and conservative voters are largely white, the court
can infer that Twitter was aware that Hall was white.6 The court
disagrees.
5 The Supreme Court has held that § 1981 protects white
persons, in addition to non-white persons, from discrimination.
McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 287 (1976).
6 In his objection, Hall notes that his Twitter account
displayed a picture of a white man. Doc. no. 13-2, SI 28. It is
unclear if Hall himself is displayed in the picture.
8
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 9 of 13
Moreover, even assuming that Hall's allegations supported
the inference that Twitter knew he was white when it suspended
his account, he has not alleged any facts to show that Twitter
suspended his account because he is white. At best, Hall alleges
that Twitter discriminated against him because of his political
beliefs, and that those beliefs are overwhelmingly held by white
individuals. Section "1981, however generously construed, does
not prohibit discrimination on the basis of political
affiliation." Keating v. Carey, 706 F.2d 377, 384 (2d Cir.
1983); see Dartmouth Rev, v. Dartmouth Coll., 709 F. Supp. 32,
37 (D.N.H. 1989), aff'd, 889 F.2d 13 (1st Cir. 1989). Instead,
"to sufficiently state a claim under § 1981, plaintiffs must
allege some facts that demonstrate that their race was the
reason for defendants' actions." Dartmouth Rev., 709 F. Supp. at
36 (quotation and alterations omitted). Viewing Hall's complaint
generously, he has not done so.
In sum, Hall has failed to allege that Twitter
discriminated against him on the basis of his race. Therefore,
the court dismisses his claim in Count I.
II. Count II
Racial Discrimination in Violation of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a, and RSA 354-A:17
In Count II, Hall alleges that Twitter discriminated
against him by suspending his account because he is white in
9
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 11 of 13
v. Meta, Inc., No. 21-5325, 2022 WL 4635860, at *3 (E.D. Pa.
Sept. 30, 2022); Martillo v. Twitter Inc., No. 21-11119-RGS,
2021 WL 8999587, at *1 (D. Mass. Oct. 15, 2021).
The New Hampshire Supreme Court has not had occasion to
address the meaning of public accommodation in this context. But
when construing RSA 354-A, the New Hampshire Supreme Court has
looked to the way federal courts interpret the Civil Rights Act
of 1964. See Burnap v. Somersworth Sch. Dist., 172 N.H. 632,
636-37 (2019)
("In interpreting RSA chapter 354-A, we are aided
by the experience of the federal courts in construing the
similar provisions of Title VII of the 1964 Civil Rights Act."
(citation omitted)). Therefore, the court also looks to federal
guidance as to the proper interpretation of RSA 354-A and
concludes that Twitter is not a place of public accommodation
under that statute.
Because Twitter is not a place of public accommodation, and
because Hall does not allege facts sufficient to establish that
Twitter was motivated by his race, Hall cannot show that Twitter
violated § '2000a or RSA 354-A:17. The court therefore dismisses
Count II.
III. Count III
Rights
Violation of State and Federal Constitutional
Hall alleges that Twitter suspended his account because of
11
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 139 Filed 05/09/23 Page 12 of 13
the content of his Tweets in violation of his right to free
speech, expression, and assembly under the First Amendment of
the United States Constitution and Part I, Articles 22 and 32 of
the New Hampshire Constitution. He also asserts violation of his
rights to due process and equal protection under both
constitutions.
The First Amendment protections, along with the Fourteenth
Amendment protections for due process and equal protection,
apply only against governmental action, that is, restrictions or
discrimination imposed by state actors. 42 U.S.C. § 1983;
Goldstein v. Galvin, 719 F.3d 16, 24 (1st Cir. 2013); see also
Jarvis v. Village Gun Shop, Inc, 805 F.3d 1, 8 (1st Cir. 2015).
Governmental action is also a required element of a claim under
the New Hampshire Constitution. HippoPress, LLC v. SMG, 150 N.H.
304, 308 (2003). As Twitter argues, it is a private company, not
a government or state actor, and Hall has not shown that the
state action doctrine would apply in the circumstances of this
case. See, e.q., O'Handley v. Weber, No. 22-15071, 2023 WL
2443073, at *4-5 (9th Cir. Mar. 10, 2023); Berenson v. Twitter,
Inc., No. C 21-09818 WHA, 2022 WL 1289049, at *3 (N.D. Cal. Apr.
29, 2022); Freedom Watch, Inc, v. Google, Inc., 368 F. Supp. 3d
30, 40-41 (D.D.C. 2019), aff'd, 816 F. App'x 497 (D.C. Cir.
2020).
12
PETITIONER HALL'S
EXHIBIT C
Case l;20-cv-00536-SE Document 139 Filed 05/09/23 Page 13 of 13
Because Twitter is not a state actor, Hall does not state
viable claims for constitutional violations as alleged in Count
III. Therefore, the court dismisses that Count.
IV. Result
For the reasons stated above, the court dismisses Hall's
claims on the merits. Therefore, there is no need to address
Twitter's defense based on immunity under § 230 or the other
defenses raised. Also, because the case is dismissed, the court
will not address that part of the motion seeking to transfer the
case to the Norther District of California.
Conclusion
For the foregoing reasons, Twitter's motion to dismiss
(document no. 3) is granted. The clerk of court shall enter
judgment accordingly and close the case.
■SO ORDERED.
cUMb
Samantha D. Elliott
United States District Judge
May 9, 2023
cc: Daniel E. Hall, pro se.
Counsel of record.
13
PETITIONER HALL'S
EXHIBIT C
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 1 of 10
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Daniel E. Hall
v.
Civil No. 20-cv-536-SE
Twitter, Inc.
ORDER
Daniel Hall, proceeding pro se, brings suit against
Twitter, Inc., alleging violations of state and federal law
arising out of his suspension from Twitter's social media
platform. There are several motions pending before the court: 1)
Twitter's motion to renew its motion to dismiss and stay other
briefing (doc. no. 99); 2) Hall's motion to strike Twitter's
motion to dismiss (doc. no. 100); 3) Hall's motion for default
(doc. no. 101); 4) Hall's motion for default judgment (doc. no.
102); 5) Hall's motion for leave to amend his motion for default
judgment (doc. no. Ill); 6) Hall's motion to take judicial
notice (doc. no. 122); and 7) Hall's motion for hearing
regarding judicial notice (doc. no. 123). The court addresses
each motion in turn.
I.
Hall's Motion for Leave to Amend Motion for Default
Judgment (doc, no. Ill)
Hall's motion seeking leave to amend his motion for default
judgment states that his request is for "reasons of clarity as
Plaintiff got the verbiage correct but confused and misplaced
PETITIONER HALL'S
EXHIBIT D
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 2 of 10
the rules of the Court." Doc. no. Ill at 1. Hall included as an
exhibit to his motion a proposed amended version of his motion
for default judgment. Doc. no. 111-1. The proposed amended
version makes a minor, clerical change from the original
version. Therefore, the court grants the motion to amend and has
considered the amended version of Hall's motion for default
judgment when ruling on that motion in this order.
II.
Hall's Remaining Pending Motions
As has been the case with several of Hall's prior motions
in this litigation, Hall's five other pending motions involve
his belief that he is entitled to judgment because Twitter's
motion to dismiss includes on its signature line the name of
Julie E. Schwartz, a California-barred attorney, with the
notation "{motion for pro hac vice admission to be filed)
See
doc. no. 3 at 2. Although Attorney Jonathan Eck, a New
Hampshire-barred attorney who is admitted to practice before
this court, filed the motion on Twitter's behalf and is listed
on the motion's signature line, Hall believes that the inclusion
of Attorney Schwartz's name on the signature line invalidates
the filing. i Further, he contends that he is entitled to judgment
i
Attorney Eck subsequently moved for the admission of
Attorney Schwartz pro hac vice. Doc. no. 9. Magistrate Judge
Johnstone granted that motion. See August 19, 2020 Endorsed
Order.
2
PETITIONER HALL'S
EXHIBIT D
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 3 of 10
because Magistrate Judge Johnstone purportedly adopted
"unwritten, illegal pro hac vice policies" by allowing the names
of other attorneys from Attorney Schwartz's law firm to appear
on the signature line of filings in other cases even though they
were not yet admitted pro hac vice at the time of the filings.
Hall's complaints about Attorney Schwartz and Magistrate
Judge Johnstone's purported pro hac vice policies provide the
basis for Hall's pending motions as follows:
•
Motion to Strike Twitter's Motion to Dismiss (doc, no.
100): Hall argues that the court should strike Twitter's
motion to dismiss (doc. no. 3) because Attorney Schwartz
was not admitted to practice before the court when Twitter
filed the motion, and Attorney Schwartz's name on the
filing is an example of Magistrate Judge Johnstone's
purported illegal pro hac vice policies.
•
Motion for Default (doc, no. 101): Hall argues that because
Twitter's motion to dismiss is invalid and should be
stricken from the record for the reasons discussed above,
Twitter therefore failed to respond to his complaint
properly and in a timely fashion, necessitating the entry
of a default.
•
Motion for Default Judgment (doc, no. 102): Hall argues
that he is entitled to a default judgment for the reasons
3
PETITIONER HALL'S
EXHIBIT D
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 4 of 10
stated in his motion to strike Twitter's motion to dismiss
and in his motion for default.
Motion to Take Judicial Notice (doc, no. 122): Hall
requests that the court take judicial notice of the
existence of Twitter's motion to dismiss in this case, as
well as filings in three other cases in this district in
which the name of an attorney from Attorney Schwartz's law
firm similarly appeared on signature lines without prior
admission pro hac vice.2
Motion for Hearing Regarding Judicial Notice (doc, no.
123): Hall requests a hearing on his motion to take
judicial notice.
A.
Hall's Motions Regarding Judicial Notice (doc, nos. 122
and 123)
Hall's motion to take judicial notice requests that the
court "take judicial notice of the District Court for the
District of New Hampshire's court records and information
contained within the New Hampshire Law Library." Doc. no. 122 at
1. Specifically, he requests that the court take judicial notice
of filings in other cases in which the name of another attorney
from Attorney Schwartz's firm, Ryan Mrazik, was included in a
filing's signature line even though he was not admitted to
2 Hall was not a party to these other litigations.
4
PETITIONER HALL'S
EXHIBIT D
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 5 of 10
practice before this court pro hac vice at the time of the
filing.3
To the extent that document no. 122 requests that the court
take judicial notice of the existence of these court records,
the court grants the motion. Hall does not appear to seek any
relief other than that the court takes judicial notice of the
existence of the filings referenced in the motion. In light of
Hall's pro se status, however, the court clarifies that the
motion is denied to the extent that he seeks additional relief.
Hall's motion requesting a hearing on his motion for
judicial notice (doc. no. 123) is denied as moot.
B.
Hall's Remaining Motions
The court denies Hall's motions to strike, for default, and
for default judgment. To begin, the court has already denied
Hall's prior motion for default, which was based on similar, if
not identical, grounds. See July 8, 2020 Endorsed Order. The
court also denied Hall's motion to reconsider that order. See
August 13, 2020 Endorsed Order.
Even if the court had not previously ruled on the issues
raised, Hall offers no legally cognizable basis for his motions.
3 Hall's motion also requests that the court take judicial
notice that Attorney Schwartz's name is included in Twitter's
motion to dismiss in this case.
5
PETITIONER HALL'S
EXHIBIT D
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 6 of 10
He provides no support for his theory that the court must strike
a filing signed by a New Hampshire-barred attorney who is
admitted to practice before this court (here, Attorney Eck)
merely because it includes the name of an out-of-state attorney
who was not yet admitted pro hac vice.
Further, even if Attorney Schwartz, and not Attorney Eck,
had filed the motion to dismiss on Twitter's behalf, the court
would deny Hall's motions. The court agrees with the reasoning
of the many courts that have rejected similar motions based on
identical grounds. See Wolford v. Budd Co., 149 F.R.D. 127, 130
(W.D. Va. 1993)
(denying motion to dismiss complaint based on
argument that the complaint was signed by an attorney not
admitted to practice in the state or before the court and noting
that its "decision is in accordance with decisions of numerous
other federal courts which have refused to dismiss pleadings or
motions filed by attorneys not admitted to practice before the
court" (collecting cases)); see also Powe v. Boykins, 810 F.
App'x 331, 331-32 (5th Cir. 2020)
(noting in the context of
affirming a district court's order granting a motion to dismiss
filed by the defendant's out-of-state attorney who had not yet
been granted leave to appear pro hac vice that, as in this case,
"the district court granted the pro hac vice motion before
ruling on the motion to dismiss" and that, regardless, "a
district court has broad discretion to control its own docket
6
PETITIONER HALL'S
EXHIBIT D
iL
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 7 of 10
and permit the filing of pleadings" (quotation omitted));
Copeland v. D & Constr. LLC, No. 3:13-CV-4432-N-BH, 2014 WL
12780049, at *1 (N.D. Tex. Mar. 4, 2014)
(Plaintiff "provides no
authority for striking the defendants' answer solely on grounds
that counsel had not yet been admitted to practice in this Court
pro hac vice at the time that he filed it. Counsel had filed his
motion to appear pro hac vice and ultimately received permission
to so appear."); Santander Sec. LLC v. Gamache, No. CV 17-317,
2017 WL 1208066, at *6 (E.D. Pa. Apr. 3, 2017)
(permitting
attorneys to continue to represent their clients despite not
being members of the bar of the court or moving for pro hac vice
admission, concluding "that the firm's active participation in
this litigation subjects it to my inherent authority to
supervise the professional conduct of attorneys appearing before
me" (quotation omitted)).
HI* Twitter's motion to renew its motion to dismiss and stay
other briefing (doc. no. 99)
Twitter filed its motion to dismiss in June 2020, less than
a month after Hall initiated this action. See doc. no. 3. The
motion to dismiss has been fully briefed by the parties. On
March 8, 2021, after Hall filed the first of multiple
interlocutory appeals of certain of the court's orders, the
court denied Twitter's motion to dismiss "without prejudice to
7
PETITIONER HALL'S
EXHIBIT D
■
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 9 of 10
»
In accordance with the March 8 order, the court grants
Twitter's request to renew its motion to dismiss (doc. no. 3).
The court will consider the parties' briefings on the motion and
issue an order in due course. Further, Hall's filings since the
resolution of his interlocutory appeals underscore the necessity
of reinstating a stay of these proceedings as described in the
concluding paragraph below and consistent with the terms
delineated in the court's prior order.
Conclusion
For the foregoing reasons, the plaintiff's motion for leave
to amend his motion for default judgment (doc. no. Ill) is
granted and his motion to take judicial notice (doc. no. 122) is
granted to the extent that it requests that the court take
judicial notice of the existence of certain court records filed
in other cases and in this case and is otherwise denied.
The plaintiff's motion for a hearing on his motion for
judicial notice (doc. no. 123) is denied as moot, and his motion
to strike Twitter's motion to dismiss (doc. no. 100), motion for
default (doc. no. 101), and motion for default judgment (doc.
no. 102) are denied.
The defendant's motion to renew its motion to dismiss and
stay other briefing (doc. no. 99) is granted. The court shall
9
PETITIONER HALL'S
EXHIBIT D
Case l:20-cv-00536-SE Document 124 Filed 11/30/22 Page 10 of 10
4
ii
■
't
consider the defendant's motion to dismiss and the parties'
briefing on that motion in due course.
In accordance with the parameters of the court's previous
order, until the court:
(a) issues its order on the
defendant's pending motion to dismiss, or (b) solicits briefing
from the parties, or (c) authorizes additional filings, neither
party shall file any additional papers, pleadings, notices, or
motions with the court, except as necessary on an emergency
basis and only with prior leave of the court (that is, by way of
first seeking, and obtaining, leave to file). Failure to comply
with this order may expose the violator to an order imposing
costs and legal fees.
SO ORDERED.
Samantha
United States District Judge
November 30, 2022
cc:
Daniel E. Hall, pro se
Counsel of Record
10
PETITIONER HALL'S
EXHIBIT D
A'
i
■ t
No.
A
3n tfje Supreme Court of tfjc Mnttcb States
DANIEL E. HALL, PETITIONER
v.
TWITTER, INC., RESPONDENT
ON PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
ATTACHED APPENDIX II- APPELLANT BRIEFS
Daniel E. Hall
Petitioner, Pro Se
Aka. Sensa Verogna
393 Merrimack Street
Manchester, N.H. 03103
SensaVerogna@gmail.com
September 15, 2024
Case: 23-1555
Document: 00118046219
Page: 1
Date Filed: 08/30/2023
Entry ID: 6588352
UNITED STATES COURT OF APPEALS
for the
FOR THE FIRST CIRCUIT
Case No. 23-1555
DANIEL E. HALL,
PLAINTIFF - APPELLANT,
- v. -
TWITTER, INC.,
DEFENDANT - APPELLEE.
Appeal from the United States District Court
For the District of New Hampshire
Case No. l:20-cv-00536-SE
Judge Samantha D. Elliott
APPELLANT'S BRIEF
Daniel E. Hall, PRO SE
Aka. Sensa Verogna
SensaVerogna@gmail.com
Dated: August 28, 2023
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
i
Document: 00118046219
Page: 2
Date Filed: 08/30/2023
Entry ID: 6588352
*
TABLE OF CONTENTS
TABLE OF CONTENTS......................................................................
TABLE OF AUTHORITIES................................................................
ISSUES PRESENTED IN THE PETITION.......................................
I. INTRODUCTION.............................................................................
II. JURISDICTION................................................................................
III. LEGAL STANDARDS OF REVIEW...........................................
IV. THE CERTIFIED RECORD.........................................................
V. CLAIM I- § 1981 VIOLATIONS OF CONTRACT......................
A. Standards of a § 1981 Claim....................................................
B. Hall's Complaint and Exhibits................................................
C. GetWhitey................................................................................
D. Twitters "GetWhitey" Workforce.........................................
E. Argument.................................................................................
VI. CLAIM II- 42 U.S.C. §2000a & NH REV STAT § 354-A
PUBLIC ACCOMMODATION................................................
VII. CLAIM III- VIOLATION OF CONSTITUTIONAL RIGHTS
A. Section 47 U.S.C. § 230...........................................................
.1
n
in
1
3
3
4
4
4
5
6
7
10
14
16
16
(1) Unconstitutionally Vague, Overbroad
and Discriminatory on its Face.................
16
(2) Sovereign Powers..................................
17
(3) Policing Powers.....................................
19
(4) Conclusion.............................................
19
B. Federal Actor.........................................
20
(1) Government "Partners"........................
20
(2) Congressional Demands and Coercion
20
(3) "Partner" Benefits.................................
23
(4) Constitutional Rights...........................
23
(5) Conclusion.............................................
24
VIII. MAGISTRATE JOHNSTONE'S ILLEGAL POLICY.
26
i. 1
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
4)
Document: 00118046219
Page: 3
Date Filed: 08/30/2023
Entry ID: 6588352
V
IX. MAGISTRATE JOHNSTONE'S ILLEGAL POLICY
A. Biased Tribunal.......................................................
B. Motions to Void.....................................................
C. Strike Motions.........................................................
D. Default Motions............................................... :...
E. Motion to Renew.....................................................
X. THE REAPPOINTMENT COMMISSION..................
A. Recusal............................................................ ........
XI. CONCLUSION...................................................... ........
XII. CERTIFICATE OF SERVICE.................................
XIII. CERTIFICATE OF COMPLIANCE........................
i. 2
26
28
29
30
33
33
33
35
39
39
40
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 4
r
U.S. SUPREME COURT
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 92, 58
S.Ct. 817, 82 L.Ed. 1188 (1938)
Adickes v. S. H. Kress & Co., 398 U. S. 144, 398
U.S.155-156(1970)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
Date Filed: 08/30/2023
Entry ID: 6588352
32
24
32
2
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127
S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)
Burton v. Wilmington Parking Authority, 365
U.S. 715(1961)
Columbus Bd. of Educ. v. Penick, 443 U.S. 449,
464, 99 S.Ct. 2941, 2950, 61 L.Ed.2d
666(1979)
Comcast Corp. v. National Association of
African-American Owned Media, 589 U.S.__
(2020)
Court. City of Canton v. Harris, 489 U.S. 378,
388 (1989)
Dep't of Transp. v. Ass'n of Am. Railroads, 575
U.S. 43, 54-55 (2015)
Edmonson v. Leesville Concrete Co.,__ U.S.
Ill S.Ct. 2077, 2083, 114 L.Ed.2d
660(1991)
2
24
12
11
30
18
25
Engquist v. Or. Dep't of Agric., 553 U.S. 591,
598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008)
18
Fitzgerald v. Barnstable Sch. Comm., 555 U.S.
246, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009)
Gasperini v. Ctr. for Humanities, Inc.,518 U.S.
415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659
(1996)
Hoover v. Ronwin,466 U.S. 558,104 S.Ct.
1989, 80 L.Ed.2d 590 (1984)
In Forrester v. White, 484 U.S. 219, 229,108
S.Ct. 538, 98 L.Ed.2d 555 (1988)
In re Murchison, 349 U.S. 133, 136 (1955)
Koon v. United States, 518 U.S. 81,100,116
S.Ct. 2035, 135 .Ed.2d 392 (1996)
Lebron v. National Railroad Passenger
Corp.,513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d
902 (1995)
Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 850-51 (1988)
2
32
36
38
36, 37
2
18
28, 37
ii. 1
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 5
Date Filed: 08/30/2023
Entry ID: 6588352
T
Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct.
666, 668, 82 L.Ed. 949, 952, (1938)
Lugar v. Edmondson Oil Co.,457 U.S. 922,102
S.Ct. 2744, 73 L.Ed.2d 482 (1982)
Marsh v. Alabama, 326 U. S. 501 (1946)
New York Times Co. v. Sullivan (1964)
16
25
23
17
Norwood v. Harrison, 413 U.S. 455, 465 (1973)
Patterson v. McLean Credit Union, 491 U.S.
164, 186(1989)
20
Rendell-Baker v. Kohn, 457 U.S. 830 (1982)
States v. Alabama, 487 U.S. 1210,108 S.Ct.
2857, 101 L.Ed.2d 894(1988)
Turney v. Ohio, 273 U.S. 510, 535 (1927)
United Auto Workers, at 902, 910, (citing Cox
v. New Hampshire,312 U.S. 569, 574, 61 S.Ct.
762, 765, 85 L.Ed. 1049 (1941))
United States v. Cowden, 430 U.S. 909, 97 S.Ct.
1181, 51 L.Ed.2d 585(1977)
United States v. Price,383 U.S. 787, 86 S.Ct.
1152, 16 L.Ed.2d 267 (1966)
Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d
450(1977)
20
10
37
32
18
3
25
12
Washington Post Co. v. Chaloner 1746, 63 L.
Ed. 987, 39 S. Ct. 448, 250 U.S. 290 (1919)
31
Withrow v. Larkin, 421 U.S. 35, 47 (1975)
36
FIRST CIRCUIT
Alston v. Spiegel, 988 F.3d 564, 572 (1st Cir.
2021)
Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st
Cir.2011)
Crowe v. Marchand, 506 F.3d 13,19 (1st Cir.
2007)
e.g., Hammond v. Kmart Corp., 733 F.3d 360,
362 (1st Cir. 2013)
4,10
e.g., O'Handley v. Weber, No. 22-15071, 2023
WL 2443073, at *4-5 (9th Cir. Mar. 10, 2023)
24
El Fenix de Puerto Rico v. The M/Y Johanny, 36
F.3d 136, 141 n.4 (1st Cir. 1994)
337
10
3
1
ii.2
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 6
!
Garita Hotel Ltd. P'ship v. Ponce Fed. Bank,
F.S.B., 958 F.2d 15, 17 (1st Cir. 1992)
Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir.
2002)
Golas v. HomeView, Inc., 106 F.3d 1, 3 (1st
Cir.1997)
Hoyos v. Telecorp Communications, Inc.,488
F.3d 1, 5 (1st Cir.2007)
In re Boston's Children First, 244 F.3d 164,167
(1st Cir. 2011)
In re Martinez Catala, 129 F.3d 213, 218 (1st
Cir. 1997)
In re United States, 158 F.3d 26, 36 (1st Cir.
1998)
In re United States, at 67; In re. Bulger, 710
F.3d 42, 45-46 (1st Cir. 2013)
Marie v. Allied Home Mortg. Corp., 402 F.3d 1,
7, fn. 2 (1st Cir. 2005)
Date Filed: 08/30/2023
Entry ID: 6588352
3
4
2
32
37
36, 37
33
37
1
Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008)
Rockwell v. Cape Cod Hospital, 26 F.3d. 258
(1st Cir. 1994)
Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76,
82 (1st Cir. 2008)
Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st
Cir. 2011)
Straughn v. Delta Air Lines, Inc., 250 F.3d 23,
42 (1st Cir. 2001)
United States v. Cowden, 545 F.2d 257, 265
(1st Cir.1976)
United States v. Kelley, 712 F.2d 884, 889 (1st
Cir. 1983)
United States v. Mirkin,649 F.2d 78, 81 (1st Cir.
1981)
United States v. Wiseman 404 U.S. 967, 92
S.Ct. 346, 30 L.Ed.2d 287 (1971)
Venegas-Hernandez v. Sonolux Records,370
F.3d 183, 195 (1st Cir.2004)
2
17
1
3
10
3
37
37
25
1
2
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)
OTHER CIRCUITS
Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949)
Bigio v. the Coca-Cola Company, 235 F.3d 63,
71-72 (2d Cir. 2000)
30
24
ii.3
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 7
Date Filed: 08/30/2023
Entry ID: 6588352
i.
Bright v. GB Bioscience Inc., 305 Fed. Appx.
197, 201 n.3 (5th Cir. 2008)
Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
1095 (9th Cir. 2005)
e.g., United States v. Alabama, 828 F.2d 1532,
1543-46 (11th Cir. 1987)
e.g., Williams v. Lindenwood Univ., 288 F.3d
349,356 (8th Cir. 441 2002)
Franks v. Nimmo, 796 F.2d 1230,1234-35
(10th Cir. 1986)
Garrett at, 98; Arguello v. Conoco, 330 F.3d
355, 358 (5th Cir. 2003)
Howard Gault Co. v. Texas Rural Legal Aid,848
F.2d 544, 552-57 (5th Cir. 1988)
Lindsey v. Detroit Entertainment. LLC, 484 F.3d
824 (6th Cir. 2007)
Mitchell v. Sirica, 502 F.2d 375, 390 (D.C. Cir.
1974)
Nicodemus v. Chrysler Corp., 596 F.2d 152,
155-56 (6th Cir. 1979)
10
11
37
10
36
10
25
18
36
36
Payton v. Rush Presbyterian-St. Luke Medical
Center, 184 F.3d 623 (7th Cir. 1999)
Pratt v. City of Houston, 247 F.3d 601, 606 n.l.
(5th Cir. 2001)
President's Com'n on Organized Crime
("Scarfo"), 783 F.2d 370, 377 (3d Cir. 1986)
Romanski v. Detroit Entertainment. L.L.C., 428
F.3d 629,638 (6th Cir. 2005)
Scandinavian Satellite Sys. v. Prime TV Ltd.,
291 F.3d 839, 844 (D.C. Cir. 2002)
United Auto Workers v. Gaston Festivals, Inc.,
43 F.3d 902, 906 (4th Cir. 1995)
United States v. Carignan, 600 F.2d 762, 763
(9th Cir. 1979)
United States v. Greer, 285 F.3d 158,171 (2d
Cir.2002)
United States v. Hines, 696 F.2d 722, 728 (10th
Cir. 1982)
United States v. Nelson,718 F.2d 315, 321 (9th
Cir. 1983)
United States v. Torres, 128 F.3d 38, 46-47 (2d
Cir.1997)
United States v. Wiseman,445 F.2d 792 (2d
Cir.)
Wade v. Byles, 83 F.3d 902,906 n.5 (7th Cir.
1996)
25
10
31, 34
25
2
18
37
38
36
36
38
22
18
ii.4
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 8
Date Filed: 08/30/2023
Entry ID: 6588352
't
i
DISTRICT COURTS
Boyle v. Torres, 756 F. Supp. 2d 983, 995 (N.D.
III. 2010)
Brignac v. Yelp Inc., 2019 WL 2372251, at
*5 (N.D. Cal. June 5, 2019)
Bronner v. Duggan , 249 F.Supp.3d 27, 41
(D.D.C. 2017)
Caperton v. A. T. Massey Coal Co. 556 U.S. 868
(2009)
Clean Water Action v. Searles Auto Recycling,
Corp., 288 F. Supp. 3d 477, 480 (D. Mass.
25
11
23
34
2018)
2
Cordero Jimenez v. University of Puerto Rico
371 F. Supp. 2d 71 (D.P.R. 2005)
Folly-Notsron v. 180 Broadway Liquor Inc., Civil
Action l:22-cv-11983-WGY, 8 (D. Mass. Apr.
27, 2023)
Freedom Watch, Inc. v. Google, Inc., 368 F.
Supp. 3d 30, 40 (D.D.C. 2019)
Fusco v. Medeiros, 965 F. Supp. 230, 249
(D.R.I. 1996)
Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d
1315, 1320 (S.D. Fla. 2017)
Guthrie v. WERC, 111 Wis. 2d 447, 454,
3
14
23, 24
25
15
331 N.W.2d 331 (1983)
32
Liteky v. United States, 510 U.S. 540, 553 n.2
(1994)
Manning v. Whole Foods Mkt. Grp., Inc., No.
21-CV-10833-ADB, 2022 WL 194999, at *5 (D.
Mass. Jan. 21, 2022)
Newman v. Google LLC, Case No. 20-CV-04011LHK, 3 (N.D. Cal. Jun. 25, 2021)
Toledo v. Pu[e]blo De Jemez, 119 F. Supp. 429,
432 (D.N.M.1954)
Traylor v. Parker Civil No. 3:13cv01828 (AWT)
(D. Conn. Mar. 19, 2015)
U.S. v. Hickernell 690 F. Supp. 272 (S.D.N.Y.
1988)
U.S. v. Three Juveniles 886 F. Supp. 934 (D.
Mass. 1995)
36, 37
14
11
18
15
34, 38
15
United States v. Gonzalez-Gonzalez, Criminal
No. 93-318 (FAB), 6-7 (D.P.R. Feb. 27, 2019)
Whitaker v. McLean, 118 F.2d 596, 596 (D.C.
Cir. 1941)
36
36
ii.5
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 9
Date Filed: 08/30/2023
Entry ID: 6588352
* Williams v. Tobener, 2016 WL 5235039, at
*2 (N.D. Cal. Sept. 22, 2016)
Wolford v. Budd Co., 149 F.R.D. 127, 130 (W.D.
Va. 1993).
11
30, 33
Workgroup Tech. Corp. v. MGM Grand Hotel,
LLC, 246 F. Supp. 2d 102,118 (D. Mass. 2003)
2
CONSTITUTIONS
Part I, Article 22 of the New Hampshire
Constitution
16,17
15, 17, 24
U.S. Const., Amend. I. The First Amendment
16, 32
U.S. Const., Amend. I. Fourteenth Amendment
U.S. STATUTES
26 U.S.C. §455
28 U.S.C. § 1291.
28 U.S.C. § 1331
28 U.S.C. § 1343(a)
28 U.S.C. § 144
28 U.S.C. § 455(a)
28 U.S.C. § 455(b)(1)
28 U.S.C. § 631
28 U.S.C. § 991(a)
42 U.S.C. § 1983
42 U.S.C. § 1981
42 U.S.C. § 1988
42 U.S.C. §2000a
47 U.S.C. § 230
47 U.S.C. §230(c)(2)(A)
28, 29, 35, 36-38
3
3
3
35. 36
36-38
35, 37, 38
30
38
24
4
3
14, 15, 16
passem
16
STATE STATUTES
NH Rev Stat§ 311:7
NH Rev Stat § 354-A
NH Rev Stat § 354-A: 17
37, 33
14, 15, 16
16, 32
FEDERAL RULES
Fed. R. Civ. P. 12(b)(6)
Fed. R. Civ. P. 60(b)
Fed. R. Civ. P. 8(a)(2).
Local Rule 30.0(d)(1),
Local Rule 83.2
2,3
29
2
3
3, 31
OTHER
ii.6
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 10
Date Filed: 08/30/2023
Entry ID: 6588352
*
11 Charles A. Wright et al., Fed. Prac. Proc. §
2804, at 53 (2d ed. 1995).
ABA Rule 5.5(c)(2)
1
32
H. Rep. No. 1453, 93d Cong., 2d Sess., 1974
Metzger, Gillian (2003-01-01). "Privatization as
Delegation". Colum. L. Rev. 103 (6):
1367-1502.
The Federal Magistrate Act of 1979 (Pub. L.
No. 96-82; 93 Stat. 643)
U.S. Code Cong. Admin. News p. 6355. "
Cowden, at 257, 265.
Wright and Miller, Federal Practice and
Procedure: Civil, § 2862, pp. 199-200.
3
18
34
3
30
ii.7
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 11
Date Filed: 08/30/2023
Entry ID: 6588352
iii. ISSUES PRESENTED IN THE PETITION
The following issues are presented for review by this Court:
Did the District Court Judge error in fact or law by;
(1) not providing a constitutional proceeding;
(2) not recusing herself;
(3) refusing to strike Twitter's Motion to Dismiss and MOL;
(4) not defaulting Twitter;
(5) renewing Twitter's Motion to Dismiss;
(6) dismissing Hall's claims under 42 U.S.C. § 1981 for failure to state a claim;
(7) dismissing Hall's public accommodation under 42 U.S.C. § 2000a, et seq.,
in determining that Twitter was not a place of public accommodation;
(8) dismissing Hall's Constitutional claim and determining that Twitter was
not a federal actor and that Section 230 is Constitutional.
III. 1
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 12
Date Filed: 08/30/2023
Entry ID: 6588352
APPELLANTS BRIEF
I. INTRODUCTION
1.
Appellant, Plaintiff, Daniel E. "Hall", respectfully appeals each substantive
order of the District "Court" and the District Court's 6/7/2023 order, denying Hall's
[D. 141] motion for reconsideration, Hall's [D. 142] motion to vacate on the basis
that the District Court failed to provide a constitutional and unbiased tribunal, and
Hall's [D.143] motion to vacate, because of the fraud or misrepresentations
performed by the Defendant, "Twitter" throughout the proceedings. Hall also
appeals the District Courts' "11/23/2022 Order" denying Hall's [D. 104] motion to
recuse "Judge Elliott"; the "[D. 124 Order]" denying Hall's [D. 100] strike motion
and [D. 101] default motion; the [D. 124 Order] denying Hall's [D. 122] judicial
notice motion, and [D. 123] hearing motion; the [D. 124 Order] granting Twitter's
[D. 99] motion to renew; the [D. 139 Order] (Hall v. Twitter Inc. 20-cv-536-SE
(D.N.H. May. 9, 2023)) and [D. 140] judgement, granting Twitter's [D. 3] motion to
Dismiss, and dismissing Hall's [D. 1] "Complaint" and Exhibits, (collectively as
"Complaint"), and on the grounds the District Court has patently misunderstood
Hall's claims. . . or has made an error not of reasoning but apprehension, [1] errors
that are plain and indisputable, which amounts to a complete disregard of the
controlling law, [2] as the Order is against the law, against the weight of the credible
evidence, or tantamount to a miscarriage of justice, and on grounds as stated
throughout, resulting in manifest errors of law and fact. [3]
[1] Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir. 2008).
[2] Venegas-Hernandez v. Sonolux Records,370 F.3d 183, 195 (1st Cir.2004).
[3] Crowe v. Marchand, 506 F.3d 13, 19 (1st Cir. 2007); Marie v. Allied Home Mortg.
Corp., 402 F.3d 1, 7, fn. 2 (1st Cir. 2005). See 11 Charles A. Wright et al., Fed. Prac.
Proc. § 2804, at 53 (2d ed. 1995).
Page 1 of 40
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
2.
Document: 00118046219
Page: 13
Date Filed: 08/30/2023
Entry ID: 6588352
The Court abused its discretion when it made many errors of law through its
"Orders". Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 .Ed.2d 392
(1996); Golas v. HomeView, Inc., 106 F.3d 1, 3 (1st Cir.1997).
3.
Here the District Court reached factual conclusions that are inconsistent with
the Complaint and failed to accept as true Hall's well-pleaded factual allegations set
forth in the Complaint that is the standard under Parker v. 'Hurley, 514 F.3d 87,
90 (1st Cir. 2008) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955,
1965, 167 L.Ed.2d 929 (2007); Scandinavian Satellite Sys. v. Prime TV Ltd., 291
F.3d 839, 844 (D.C. Cir. 2002), and abused its discretion in making factual findings
while determining a motion to dismiss. Workgroup Tech. Corp. v. MGM Grand
Hotel, LLC, 246 F. Supp. 2d 102, 118 (D. Mass. 2003).
4.
Hall's Complaint contains more than just a “short and plain statement of the
claims showing that he is entitled to relief required by Fed. R. Civ. R 8(a)(2).
“[Djetailed factual allegations” are not required under Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and Hall's Complaint contains sufficient factual matter which, taken
as true, states a claim to survive a Rule 12(b)(6) motion, “that is plausible on its
face.” E.g., Twombly, at 544, 556, 570. “Asking for plausible grounds to infer
[unlawful conduct] does not impose a probability requirement at the pleading stage;
it simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of [such conduct].” Id. at 556. At the motion-to-dismiss stage,
moreover, the Court failed to “construe the Complaint in the light most favorable to
Hall and draw all reasonable inferences in [his] favor.” Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009); Clean Water Action
v. Searles Auto Recycling, Corp., 288 F. Supp. 3d 477, 480 (D. Mass. 2018). A
plaintiff need not “submit evidence ... at the pleading stage.” and "are not required
to submit evidence to defeat a Rule 12(b)(6) motion, but need only sufficiently allege
in their complaint a plausible claim." Watterson v. Page, 987 F.2d 1,3 (1st Cir. 1993).
Page 2 of 40
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
5.
Document: 00118046219
Page: 14
Date Filed: 08/30/2023
Entry ID: 6588352
The District Court's decisions were made without regard for the Constitution,
case law, or supreme court rules which address who can fill such a position of public
trust. A court that changes its mind every time there is a new justice or different set
of facts undermines the very concept of the rule of law and creates uncertainty for
citizens, businesses and elected officials trying to go about their lives while
following the laws of the land.
II. JURISDICTION
6.
The Court had jurisdiction as a substantial part of this action arose under the
laws of the United States, 28 U.S.C. §§ 1331, 1343(a) and 42 U.S.C. § 1988, and
through Article III § 2 which extends the jurisdiction to cases arising under the U.S.
Constitution. Since the district court's order [D. 13], and judgment [D. 14] dismisses
all of the underlying claims fully and disposed of the Appellants' claims, this court
of appeals has jurisdiction under 28 U.S.C. § 1291.
III. LEGAL STANDARDS OF REVIEW
7.
A district court's dismissal of a claim under Rule 12(b)(6) is reviewed de
novo by the appeals court. Cordero Jimenez v. University of Puerto Rico 371 F.
Supp. 2d 71 (D.P.R. 2005). Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st
Cir.2011); Santiago v. Puerto Rico, 655 F.3d 61, 72 (1 st Cir. 2011); Garita Hotel Ltd.
P'shipv. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 17 (1st Cir. 1992).
8.
When "determining whether a judge's impartiality might reasonably be
questioned," the First Circuit follows the standard set forth in United States v.
Cowden, 545 F.2d 257,265 (1st Cir. 1976), cert, denied, 430 U.S. 909, 97 S.Ct. 1181,
51 L.Ed.2d 585 (1977), to objectively determine at! if there is a reasonable factual
basis for doubting the judge's impartiality . . . ." H. Rep. No. 1453, 93d Cong., 2d
Sess., 1974; U.S. Code Cong. Admin. News p. 6355.
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PETITIONER HALL’S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 15
Date Filed: 08/30/2023
Entry ID: 6588352
IV. THE CERTIFIED RECORD
9.
Hall has motioned this Court to certify the record as he believes it to be
incomplete and not a true reflection or representation of the certified record.
Although Hall is not required to attach and appendix under Local Rule 30.0(d)(1),
the current certified record consisting of only some of the Court's Orders and not
including documents past [D. 146] is woefully incomplete and would make the
process of this appeal hollow and unfair to Hall, to say the least.
10.
In this brief, Hall temporarily refers to the July 10, 2023 document
(00118028485) in this case no. 23-1555, when referring to docket entries and ask
this court to allow him to supplement any pleadings or orders on the record when
the certified record is complete, and when directed to do so by this Court.
V. CLAIM I- 42 U.S.C. "§ 1981" VIOLATIONS OF CONTRACT
A. Standards of a $ 1981 Claim
11.
The essential element of a § 1981 claim is that the defendant discriminated
against the plaintiff on the basis of his or her race, e.g., Hammond v. Kmart Corp.,
733 F.3d 360, 362 (1st Cir. 2013); Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir.
2002). Under Garrett, "to satisfy the foundational pleading requirement for a [§
1981] suit ..., a retail customer must allege that he was actually denied the ability
either to make, perform, enforce, modify, or terminate a contract, or to enjoy the
fruits of a contractual relationship, by reason of a race-based animus." Id. at 100-01
12.
The Court errored in fact when granting [D. 139] Twitter's Motion to Dismiss
[D. 3], and finding that; (1) no alleged facts show that Twitter suspended his account
because he is white, (2) Hall was banned because he violated Twitter's rules, (3) Hall
alleges that Twitter discriminated against him because of his political beliefs and
because he was white, 4) the court can't infer that Twitter was aware that Hall was
white just because Republicans and conservative voters are largely white, and
because he espoused republican and conservative viewpoints.
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 16
Date Filed: 08/30/2023
Entry ID: 6588352
B. Halls Complaint and Exhibits
13.
Hall's Complaint alleges that he is a natural white person, and a member of
the white or non-Hispanic, “white” race. [D.l,
2], who signed a contract with
Twitter, [D. 1, ^ 3], in March 2019. [D.l, 112], stating that he was user and customer
of their website and potential buyer of Twitter products. [D.l, ^[ 15]. In November
2019 Twitter locked Hall’s account, and on December 5, 2019, banned or terminated
his account. [D.l,
18] Hall Appealed each of Twitter's decisions, [D.l, ^[ 18],
denying any violation of Twitter's policies, [D.l, ^ 21] which Twitter denied stating;
“Your account has been suspended and will not be restored because it was found to
be violating the Twitter Terms of Service, specifically the Twitter Rules against
participating in targeted abuse.” [D.l, 114, 20]. Hall claims that because Twitter has
banned his HalTs contract, he is no longer able to use Twitter’s services or utilize
Twitter live feed, receiving or sending messages, profile editor, analytics, promote
mode, or analytics services, including the purchase of any advertising or run ads to
reach a larger audience or the use of various marketing, business, software &
advertising products & services to help build and grow “his” brand. [D.l,
14.
17]
Hall's allegations don't stop at "because he was white". Hall also alleges that
he was discriminated against because he tweeted, posted, communicated, acted,
represented, displayed, behaved and portrayed himself to be a white person and a
member of the white race when using Twitter’s services, [D.l, ^ 139, 155], and that
Twitter banned Hall, in part, for his white behaviors. [D. 1-1 Exhibit Q-2 R 174].
Additionally, it is public knowledge that Twitter's "Advertisers are able to build
criteria that include and exclude folks," [D. 1-1 Exhibit Q-2 P. 97], and exclude
certain categories of users on a discriminatory basis., [D. 1-1 Exhibit Q-2 P. 96], with
the meaning that Twitter can and does identify its users on race based information
for its advertisers. Hall also alleges Twitter used their new Health Policy initiative
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
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Entry ID: 6588352
as a pretext to discriminately remove or ban for life the contracts, of perceived or
actual white owned accounts like Hall’s. [D.l, ^ 140, 158];
C. Get Whitev
15.
Hall also alleges that in the time leading up to his termination in December
2019, white hate was on the rise and that by July 2018 the media were openly calling
Trump supporters “Nazis” [D.l, ^[ 184], to which Breitbart News then chronicled a
"Rap Sheet: ***639*** Acts of Media-Approved Violence and Harassment Against
Trump Supporters." [Id, ^ 184]. [4] which was supported by Maxine Waters (D-CA)
because she threatens Trump supporters "all the time.” [ID.
183]. By November
Antifa was vandalizing Tucker Carlson's home. [ID. ^ 180], and in March 2019 it
was "reported" that White nationalist "groups" surged nearly 50 percent. [ID. ^ 79],
which prompted the Southern Poverty Law Center to ask "How many nazis are there
in America really". [ID. f 80]. At a Twitter all-hands meeting on an employee states
algorithms the next great hope for platforms to ... remove white supremist content.
[ID.
81]. By April 2019. the House Judiciary held a Hearing on hate crimes and
the rise of white nationalism and addressed some of what social media companies
can do to stem white nationalist propaganda and hate speech online and what the
public forums are doing to police their public forums. [ID. ^ 82] [EXHIBIT C];
Researcher, JM Berger, pointed out that since so many white nationalists are
supporters of President Trump, removing those accounts could lead conservatives to
accuse the platform of anti-Republican bias. [ID. | 83]; Jack "Dorsey" while
speaking of white nationalists, told Rolling Stone that people constantly tweet at him
asking him to “get the Nazis off Twitter,” [ID.
84], also a Twitter employee who
works on machine learning told Motherboard that he believes that a proactive,
algorithmic solution to white supremacy would also catch Republican politicians.
[ID.
85]. In May 2019 the House Civil Rights and Civil Liberties Subcommittee
held a public hearing titled [Confronting White Supremacy (Part VII). [ID. ^ 86].
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PETITIONER HALL'S
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In June 2019- the House Judiciary held a Hearing "Confronting White Supremacy"
and the "Adequacy of the Federal Response" [ID.
87]. In August 2019- Headlines
read Liberals are now willing to target any Trump supporter for ruination.” The
message to anyone who dares not march in lockstep with liberalism.” “You don’t
matter, and we will target you for ruination whenever we feel like it.” [ID. ^ 182].
Members of the US Congress were "Outing" donors to Donald Trump inviting abuse
from the public. [ID. | 185]; Fortune Magazine' headline states "When Will Twitter
Ban White Nationalists? "Civil Rights Leaders Urge the Site to Take Action." [ID. f
88]. In September 2019- House Oversight Joint Subcommittee held a Hearing on
Confronting White Supremacy in which Mr. Raskin stated, in part; "We are here
today to determine if existing counter terrorist tools can be mobilized to address the
problem of white supremacy. [ID.
89]. By October 2019- MN State Rep was
Among Antifa Mob Harassing Trump Supporters After Rally. [ID.
186]; November
2019- Facebook said it was banning white nationalist and white supremacist content
from its platform, putting pressure on Twitter to do the same. [ID.
90].
D. Twitters "Get Whitev" Workforce
16.
Twitter's workforce" during this same period, consisted of CEO, Jack
“Dorsey”, officers, directors, managers, agents, employee’s or other partners,
journalists, contractors, subcontractors or actors, [D.l, ^ 5]) who are., mostly non
white or anti-white. [D.l, TJ 91], and have a strong bias and strong negative views
about white people in general, [D.l, f 70], who actively use Twitters public forum
[4] See [D.55-1], January 5, 2017: Left-wing thugs kidnap, beat, and torture an 18year-old with schizophrenia while shouting "fuck Trump" and "fuck white people;
"October 19, 2017: Left-wing thugs arrested for disrupting College Republican
meeting, shouting "fascists," "racists" and "white supremacists"; September 28,
2017: Education Secretary Betsy DeVos heckled as "white supremacist" during
speech; September 30,2018: Georgetown prof: WHITE GOP senators inKavanaugh
hearing 'deserve miserable deaths'.
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PETITIONER HALL'S
EXHIBIT E
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to endorse and promote the many agendas of the Democratic Party, (See Exhibit PTwitter Facilities.) [D.l, ^ 68], who Dorsey himself admits "are biased" and are leftleaning employees who are so liberal, in fact, that conservative employees "don't
feel safe to express their opinions" within the company. [D.l, ^ 69]. 96 percent of
Journalists, who are part of this "workforce" contributed to the Hillary Clinton
campaign in 2016. [D.l, 76]. Also there were numerous former employees such as
Olinda Hassan, a policy manager of Twitter trust and safety who made statements
such as "Safety "Yeah, that's something we're working on" .... "we're trying to get
the shitty people to not show up. It's a product thing we're working on", when
commenting on white males like Michael Cemovich an American right-wing social
media personality [D. 1, ^ 66]; people like Mo Norai, a former content review agent
of Twitter who was recorded as stating; “..a user end services person would deem it
pro-Trump and take tweets down, and let left leaning or liberal stuff go through
unchecked and further stating “Twitter was probably about 90% anti-Trump, maybe
99% anti-Trump.” [D.l, f 49]; Conrado Miranda, a former engineer for Twitter was
recorded as stating; "That's a thing" when asked if rumors where true that [Twitter]
likes to ban Trump supporters or conservatives. [D.l, ^[ 29]; Pranay Singh, direct
messaging engineer for Twitter acknowledges that a majority of algorithms are
against Conservatives. [D.l, ^ 30]; Abhinav Vadrevu, a former software engineer for
Twitter acknowledged that Twitter has shadow banned users without their
knowledge. [D.l, ^ 31]; Vijaya Gadde, legal counsel for Twitter, who stated that
“Twitter does not shadow ban.” [D.l, ^ 33]; In July 26, 2018, Nick Pickles, again
reiterated to the public that shadow banning claims were unfounded and false," [D. 1,
f 53], aligning with Twitter's public narrative that the "rules apply to everyone using
our service," [D.l, ^ 48], and],
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
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Document: 00118046219
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Despite public perception that Twitter shows bias against Republicans,
Conservatives, [D.l, 1f 26, Exhibit K] (who continue to be 83% white), [D.l,
23]
"Twitter's public response within this period, had always been "We do not shadow
ban." Mr. Pallone [D. 1-1 Exhibit Q-2 R 28]. When Dorsey testified before Congress
in September 2018, he was evasive, [D.l, ^ 93,94], and he tweaked Twitter's public
response to “We do not shadowban anyone based on political ideology" [D. 1, 34],
or prominent Republicans, [D. 1-1 Exhibit Q-2 R 56], only after Twitter was caught
lying about its shadow banning policies and Dorsey was forced to admit that that
Twitter has bias in their algorithms [D. 1-1 Exhibit Q-2 R 154], and regulated and
shadow banned 600,000 users for "certain behaviors," [D. 1-1 Exhibit Q-2 R 57].
Users who were mostly Republicans and Conservatives, who are mostly white. [D. 1,
If 91]. Dorsey went on to state that Twitter undertook no behavior to selectively
censor conservative Republicans or conservative voices on your platform," [D. 1-1
Exhibit Q-2 P. 58], and does not "consider political viewpoints, perspectives, or
party affiliation in any of our policies or enforcement decisions, period." [D. 1-1
Exhibit Q-2 P. 23]. Also that their behavioral ranking does not consider in any way
political views or ideology and focuses solely behavior [D. 1-1 Exhibit Q-l, R 6],
policies and algorithms don't take into consideration any affiliation philosophy or
viewpoint." [D. 1-1 Exhibit Q-2 R 63]. In January 2019 Dorsey finally came clean
to the public regarding Twitters shadow banning practices in stating "we (Twitter)
haven't been as forthright as we need to, we certainly haven't been as transparent
when asked about racists getting verified status. [D.l, 1f 72]. In November 2019
Twitter again denies shadow banning claims. [D.l, ^f 37], and then acknowledges a
month later that it had “shadow banned” Sean Davis, a white man. [D.l, If 38]. In
January 2020 Twitter ended the fraud of shadow banning users and changed its
contract to allow Twitter to shadow ban its users. [D. 1, ^f 39].
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PETITIONER HALL'S
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And lastly, during this time period, between Jan-June 2018, 6.229.323
accounts were reported for possible violations where actions were taken against
605,794 accounts, [D.l, ^ 24], and between July-Dee 2018, 11,000,257 accounts
were reported for possible violations where actions were taken against 612,563
accounts. [D.l,
24]. By Jan-June 2019, Twitter through its Health Policy,
knowingly focused its efforts, wrote and trained its algorithms, set its-agenda's,
formulated and implemented policies to track, police and regulate on the basis of
going after and removing white supremacists, white separatists and white
nationalists. [D.l, ^ 91]. Twitter was aggressively taking action by limiting, locking
or suspending users’ contracts for reasons such as abuse, hate and white nationalism.
[D.l, | 24], resulting in 15,638.349 unique accounts were reported for possible
violations where actions were taken against 1,254,226 accounts. An increase of
105% over last reporting period. [D.l, | 24, 63]. By July 2019 Twitter's stopped
reporting MAU entirely. [D.l,
61,97]. In October 2019, Twitter stated that "more
than 50% of Tweets we take action on for abuse are now being surfaced using
technology." [D. 1, f 62], and that it had banned over 2 million users in those past 10
months alone for either abuse, hate or violent tweets under their Health Policies. (See
Exhibit 1-4, Twitter's 15th Transparency Report, October 31,2019.) [D.l, ]f 63]
E. Argument
19.
Hall has alleged that Twitter devised this new Health Policy not only to
remove abusers, but to target WHITE users for removal. Ban their contracts because
they are WHITE and have a WHITE way of talking or behaving. Twitter
promulgated its policies for the specific reason of removing WHITES’ and "WHITE
nationalists'" tweets and accounts and severed services within its ongoing User
Agreement (“contract”) with Hall and suspended for life most, if not all, of Hall’s
@BastaLies account services and access into its public accommodation for life
(collectively referred to as (“banned”), because Hall is WHITE and tweeted, posted,
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
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Date Filed: 08/30/2023
Entry ID: 6588352
communicated, acted, displayed, behaved and portrayed himself to be a white
person. [D.l, ^ 1]
20.
Hall has established that (1) he is a member of a protected class; (2) Twitter
had an intent to discriminate on the basis of race; and (3) the discrimination
concerned one or more of the activities enumerated in the statute, (4) he was actually
denied the ability either to make, perform, enforce, modify his contract, or enjoy the
fruits of the contractual relationship under the standards set forth in Hammond at,
360, 362; Alston v. Spiegel, 988 F.3d 564, 572 (1st Cir. 2021); Garrett at, 98;
Arguello v. Conoco, 330 F.3d 355, 358 (5th Cir. 2003).
21.
The Court errored in law in finding that Hall failed to state a claim under §
1981 as Hall has alleged a prima facia claim for racial discrimination under the
standards of Bright v. GB Bioscience Inc., 305 Fed. Appx. 197, 201 n.3 (5th Cir.
2008); Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989), with the direct
evidence that Twitter created its Health Policies for the specific reason of banning
WHITE nationalists, [D.l, f 64], or with the mountain of circumstantial evidence
described herein. Pratt v. City of Houston, 247 F.3d 601, 606 n.l. (5th Cir. 2001).
22.
Hall's direct evidence that Twitter banned over 2 million users in 10 months
in 2019 with its new Health Policy supports Hall's contention that Twitters Health
Policy was just a pretext. [5] The fact that Twitter openly went after WHITE
Nationalists yields and unavoidable inference that Hall's race impacted the discipline
determination and was pertinent to the discipline decisions made because Twitter
itself injected race as one of the main reasons for updating and changing its Health
[5] Pretext can be shown by "weaknesses, implausibility's, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons' such
that a factfinder could infer that the employer did not act for the asserted nondiscriminatory reasons." Straughn v. Delta Air Lines, Inc. , 250 F.3d 23, 42 (1st Cir.
2001).
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PETITIONER HALL'S
EXHIBIT E
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Document: 00118046219
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Policy specifically to track and discipline WHITE socialists, WHITE separatists
and WHITE nationalists, with being white being the common denominator, and
thus, race had something to do with the decision-making process, e.g., Williams v.
Lindenwood Univ., 288 F.3d 349,356 (8th Cir. 441 2002) ("[I]njecting racial
language at all into the decision-making process created the inference that race at
something to do with the decision-making process. ").[D.l,
47]. Williams v.
Tobener, 2016 WL 5235039, at *2 (N.D. Cal. Sept. 22, 2016); Newman v. Google
LLC, Case No. 20-CV-04011-LHK, 3 (N.D. Cal. Jun. 25,2021), (race was the reason
for defendant's actions). This direct evidence supports the allegation that Twitter
racial discrimination was a “motivating factor” of banning Hall's contract, Comcast
Corp. v. National Association of African-American Owned Media, 589 U.S.___
(2020) and intentionally and purposefully discrimination against Hall due to his race.
Newman at, 3; Brignac v. Yelp Inc., 2019 WL 2372251, at *5 (N.D. Cal. June 5,
2019). Direct evidence of discriminatory intent is evidence that, “if believed, proves
the fact [of discriminatory intent] without inference or presumption.” Coghlan v. Am.
Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005).
23.
Hall's circumstantial evidence that Twitter's Health Policy was just a pretext
includes facts that Twitter: (1) deployed an anti-white Workforce, who hated
WHITES, (2) had a secret policy of shadow banning Republicans and Conservatives
who are mostly white, for years, (3) lied repeatedly to the public to cover it's actions
of shadow banning, [D.l, 72]; (4) treated “similarly situated” non-white users with
less severity than Hall for who similar conduct to Hall’s, [D. 1,
102, 169]. [6] (5)
[6] allows ("Blue Check 'ers"), with combined 50 million followers, to post racist
divisive words such as "I hate white people" [D.l, ^ 40, Exhibit L]; continues to
allow non-whites to post racist divisive hashtags such as #KillWhites and
# Whitegenocide and to promote hate against the race of white people. [D. 1, ^[ 41,
Exhibit M];
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treated Hall more severely; [D.l, f 14, 141, 158]; [7] (6) required additional
conditions of Hall, such as walking talking, acting, displaying, behaving or
portraying himself to be a non-white. [D.l, f 144]; [D.l, | 43, 46] Exhibit N and O.
[D.l, ^[ 44, 45]; (7) has shown discriminatory animus towards whites. [D.l, ^ 25];
[D.l-1, Exhibit J]. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Columbus Bd. of Educ. v. Penick, 443
U.S. 449, 464, 99 S.Ct. 2941, 2950, 61 L.Ed.2d 666 (1979).
24.
Twitter knew Hall used Twitters services on a daily basis and it was Twitters
intent to prevent Hall from doing so on any meaningful basis because he was white
and/or behaving white. But for Hall being white, he would not have been banned or
injured and would not have suffered the loss of legally protected rights, and that if
he were non-white, he would be enjoying the benefits of his contract with Twitter.
[D.l, H 143]; Twitter impaired the ‘contractual relationship, denied services,
similarly situated users outside Hall's protected class, who had signed identical
contracts similar to Hall, were not denied the same services. [D. 1, ^f 142]; As a result
of the above-described discrimination, Hall suffered equitable and other losses. [D. 1,
If 150, 151];
25.
Because Hall sufficiently alleges that he suffered discrimination on the basis
of his race and identifies facts: (1) of a nation under siege by anti-whites; (2) the
anti-white culture of Twitter's workforce and it's intent on getting rid of all the white
nationalists and facts that demonstrate Hall's race was the reason for defendants’
actions, and the “but for” cause and the motivation for the above-described conduct
by defendant Twitter’ Workforce, was because Hall is white and a member of the
white race. [D.l, 1153]. He also identifies several instances of this workforce
[7] should never be ejecting people." Dorsey Testimony, [D. 1-1 Exhibit Q-2 P. 72];
“I don't believe a permanent ban promotes health” Dorsey [D.l, | 56]
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engaged in the targeting of people behaving or speaking white through shadow
banning while allowing other non-whites the same privilege of services for acting
non-white, and statistical data which demonstrates that thousands of white
nationalists were removed from the site in 2019. He identifies several instances in
which decisionmakers allowed non-white behaviors, while condoning the very same
' behavior of Hall. The Court's determination of facts are in error and its order is not
within the law and should be reversed.
VI. CLAIM II- 42 U.S.C. "§ 2000a’’ & N.H. Rev Stat ”§ 354-A’’- PUBLIC
ACCOMMODATION
26.
The Court errored in fact when finding that; (1) Hall's Complaint only alleges
that Twitter discriminated against him by suspending his account (only) because he
is white." (2) Hall "fails to allege that Twitter suspended his account because he is
white." (3) that Twitter only provides online services, and are not places of public
accommodation for the purposes of Title II of the Civil Rights Act of 1964, § 2000a.
27.
Twitter formed opinions about and then treated Hall not based on his
individual merits, but rather on his skin color and membership or perceived
membership in groups with assumed behavioral characteristics of being white and
failed to offer full and equal services to Hall at a covered establishment in violation
of 42 U.S.C. §2000a and NH Rev Stat § 354-A. [D.l, ^ 103].
28.
Title II of the Civil Rights Act provides that “[a]ll persons should be entitled
to the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public accommodation... without
discrimination or segregation on the ground of race, color, religion, or national
origin.” 42 U.S.C. § 2000a(a); Manning v. Whole Foods Mkt. Grp., Inc., No. 21CV-10833-ADB, 2022 WL 194999, at *5 (D. Mass. Jan. 21, 2022).
29.
To state a prima facie claim under § 2000a, a plaintiff must plausibly allege
that: 1) he is a member of a protected class; 2) he attempted to exercise the right to
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full benefits and enjoyment of a place of public accommodation; 3) he was denied
those benefits and enjoyment; and 4) he was treated less favorably than similarly
situated persons who are not members of the protected class. See Id. Manning;).
30.
The Court errored in law in finding that Hall failed to state a claim under 42
U.S.C. §2000a and NH Rev Stat § 354-A as Hall has alleged a prima facia case for
racial discrimination under the standards of Folly-Notsron v. 180 Broadway Liquor
Inc., Civil Action l:22-cv-11983-WGY, 8 (D. Mass. Apr. 27, 2023), in that Hall
alleges that Twitter facilities at all times material, offered food to eat, beverages to
drink on-premises, and provided entertainment - and therefore, was a place of public
accommodation for the purposes of § 2000a and NH Rev Stat § 354-A.
31.
Hall's direct evidence that Twitter's business model is based on advertising,
[D. 1-1 Exhibit Q-2 P. 84]; (most) revenue comes from selling advertising, [D. 1-1
Exhibit Q-2 P. 166]; has Nationwide facilities, [D.l, f 5]; and a "data" business. [D.
1-1 Exhibit Q-2 P. 65], contradicts the Court's finding that Twitter is just a "website".
More direct evidence shows that Twitter housed Non-Party, "Bon Appetit" who
operated an on-site food services company, which at all times material herein,
operated on-site, and within Twitter’s San Francisco facility which was open to the
public and is principally engaged in selling food for consumption on the premises.
[D.l, 1] 7]
32. Other direct evidence shows that Twitter supplied food and beverages for its
guests and even houses an on-site bakery and sandwich shop at its San Francisco
facility. [D.l, f 98] Twitter's operation of cafeteria’s, lunchrooms, lunch counters,
soda fountains, motion picture houses, theaters, concert halls or other places of
exhibition or entertainment within its many facilities or establishments affect
commerce as a substantial portion of the food which it serves or other products which
it sells, has moved in commerce. Provides sources of entertainment. [D.l, ^ 99];
Hosts many public events. [D.l, ^ 100]. Hall has established a nexus between the
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website and the physical premises of a public accommodation. Gil v. Winn Dixie
Stores, Inc., 242 F. Supp. 3d 1315, 1320 (S.D. Fla. 2017); U.S. v. Three Juveniles
886 F. Supp. 934 (D. Mass. 1995). See also, Traylor v. Parker Civil No. 3:13cv01828
(AWT) (D. Conn. Mar. 19, 2015). (Services of a place of public accommodation,
and not services in a place of public accommodation).
33.
Because Twitter is a place of public accommodation under § 2000a and RSA
354-A:17, and because Hall alleges facts sufficient to establish that he is a member
of a protected class and that Twitter's workforce was motivated by his race. See [D. 1,
Tf 158], the Orders of the Court should be reversed.
VII. CLAIM III- VIOLATION OF CONSTITUTIONAL RIGHTS
A. Section 47 U.S.C. § 230
34.
47 U.S.C. §230(c)(2)(A), states, in pertinent part;
"any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is
constitutionally protected"
35.
The Court errored in law in finding that Twitter is not a state actor and that
§230 is not unconstitutional.
(1) Unconstitutionally Vague, Overbroad and Discriminatory on its
Face
36.
"Congress shall make no law * * * abridging the freedom of speech * * * »
U.S. Const., Amend. I. The First Amendment is made applicable to the states by the
Fourteenth Amendment, Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 668, 82
L.Ed. 949, 952, (1938).
37.
In any forum, §230 is unconstitutionally vague, overbroad and viewpoint
discriminatory on its face under Part I, Article 22 of the New Hampshire Constitution
and the First Amendment of the United States Constitution as it authorizes and
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encourages arbitrary and discriminatory enforcement, enabling Federal Actors
(Congress) to administer a policy on the basis of impermissible factors. [D.l, Tf 133]
38.
§230 is also unconstitutionally vague and overbroad because no one can
decipher its meaning, [D.l,
133], and because a substantial number of its
applications such as removing speech “taken in good faith” and speech “otherwise
objectionable” are unconstitutional and viewpoint discriminatory on their face
because it fails to provide people of ordinary intelligence a reasonable opportunity
to understand what conduct it prohibits and it authorizes or even encourages arbitrary
and discriminatory enforcement. [D.l, jf 134]. Twitter’s mere invocation of federal
power through §230 suppresses speech. [D.l, Tf 119]
39.
§230 is duplicative of the sweeping language of the Sedition Act which made
it illegal, among other actions, to “write, print, utter or publish...any false, scandalous
and malicious writing...with intent to defame the...government” or “to stir up
sedition within the United States.” Today, the Sedition Act of 1798 is generally
remembered as a violation of fundamental First Amendment principles. New York
Times Co. v. Sullivan (1964).
40.
Even assuming §230 has a plainly legitimate sweep that targets obscene, lewd,
lascivious, filthy, excessively violent, harassing, the regulation can be used to censor
any expression or word that is critical, negative, or controversial or is capable of a
critical, negative, or controversial interpretation regardless of whether it constitutes
an accusation of moral turpitude or whether the speech is “constitutionally protected
or not”. [D.l,f 135, 136]
(2) Sovereign Powers
41.
Twitter assumed powers to regulate speech which is traditionally and
exclusively reserved to the Congress. Rockwell v. Cape Cod Hospital, 26 F.3d. 258
(1st Cir. 1994); "[T]he Supreme Court has explicitly left open the question of
whether, and in what context, 'private police forces' may be considered state actors."
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Lindsey v. Detroit Entertainment. LLC, 484 F.3d 824 (6th Cir. 2007); Wade v. Byles,
83 F.3d 902,906 n.5 (7th Cir. 1996), (same). In passing § 230, Congress place power
of regulating speech outside of constitutional controls. Metzger, Gillian (2003-0101). "Privatization as Delegation". Colum. L. Rev. 103 (6): 1367-1502.
42.
Hall contends that Congress conferred upon Twitter such sovereign power and
therefore that under the "government function" strand of the state action doctrine
Twitter must be held accountable as a federal actor.” United Auto Workers v. Gaston
Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995); Lebron v. National Railroad
Passenger Corp.,513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995); Dep't of
Transp. v. Ass'n of Am. Railroads, 575 U.S. 43, 54-55 (2015) (agency or
instrumentality of the United States). When Congress permits Twitter to sensor
speech, Congress cedes to Twitter the sovereign power to regulate speech in a
public/private forum.
United Auto Workers, at 902, 910, (citing Cox v. New
Hampshire,M2 U.S. 569, 574, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941)).
43.
"Time and again our cases have recognized that the Government has a much
freer hand in dealing ‘with citizen employees than it does when it brings its sovereign
power to bear on citizens at large.’ Engquist v. Or. Dep't of Agric. , 553 U.S. 591,
598, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (stating that "there is a crucial
difference, with respect to constitutional analysis, between the government
exercising the power to regulate" and "the government acting ... to manage [its]
internal operation" (internal quotation marks and quotation omitted)); Toledo v.
Pu[e]blo De Jemez, 119 F. Supp. 429, 432 (D.N.M. 1954) (arms of the sovereign).
44.
In passing §230, the legislature overrode the entrenchment clause under Part
I, Article 22 of the New Hampshire Constitution and the due process rights that
accompany it without any type of strict scrutiny which would have examined
restrictions or regulations with regard to content of speech prior to it passing into
law. [D. 14 132]
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(3) Policing Powers
45.
Congress, under any Commerce act or regulation, lacks the authority to
regulate and/or suppress noneconomic speech or criminal conduct under §230 based
solely on that conduct’s aggregate effect on interstate commerce as police powers lie
within the States and not with the Federal Government. [D.l,
126]. Congress has
exceeded its constitutional bounds in passing §230 as policing powers of speech are
possessed by the States. [D. 1, T| 127,128]. Congress is intertwined with Twitter when
it relegates it's duties to protect, police and regulate free speech. §230 saves the
government millions while trampling state and personal interests in free speech.
[D.l,
114]. True threats or inciteful crimes of speech are not economic activity and
are more apt to be governed by State or local Criminal laws. [D.l, ^ 125]
46.
§230 deputizes computer networks such as Twitter “to ensure vigorous
enforcement of Federal and State criminal laws to deter and punish trafficking in
obscenity, stalking, and harassment by means of computer in return for legal
protections for third-party content and for Twitters filtering decisions. [D.l,
115].
§230 converts a private entity like Twitter into a state actor or is equivalent to state
action—because the private entity [Twitter] is voluntarily performing a traditional,
exclusive public functions such as regulating criminal and non-criminal speech and
behaviors at a local and State level. [D.l,
47.
117]
Additionally, in a role traditionally left exclusively to local governments and
under the color and authority of Congress, Twitter violated Hall’s Free Speech Rights
by censoring and regulating Hall’s tweets and behaviors and then in retaliation for
the tweet, violated Hall’s Rights of Assembly when it banned him from a Public
Forum and other Designated Public Forums, (“DPF'(s)”). [D. 1, ^[ 1]. Hall's speech in
his tweet were not in violation of any state or federal law. [D.l, ^ 111].
(4) Conclusion
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Twitter cannot use § 230 as a defense for its actions because § 230, is
unconstitutional on its face, cedes (1) sovereign powers of Congress of regulating
speech, (2) powers of States to enforce speech, to a private entity requiring the
Court's to be reversed.
B. Federal Actor
(1) Government "Partners"
48.
Twitter is described as having an extensive partnership and collaboration with
"our government partners", [D. 1-1 Exhibit Q-l, P. 6, 9], working on investigations
with "our law enforcement partners", [D. 1-1 Exhibit Q-l, P. 10]; working together
with our government elected officials, [D. 1-1 Exhibit Q-l, P. 9]; Dorsey, [D. 1-1
Exhibit Q-2 P. 121-122]; has a strong partnership with local law enforcement and
federal law enforcement and attend a regular "cadence" of meetings. [D. 1-1 Exhibit
Q-2 P. 166]; Dorsey [D. 1-1 Exhibit Q-2 P. 182]; Willing to work with their
"partners" to consider what more Twitter can be doing to protect our kids. [D. 1-1
Exhibit Q-2 P. 121-122]; maintained private portals to allow partners and journalists
to report anything suspicious that they see so that [Twitter] can take much faster
action." [D. 1-1 Exhibit Q-2 P. 166].
(2) Congressional Demands and Coercion
50.
Congress induced, encouraged, and promoted private persons and companies
to accomplish what it is constitutionally forbidden to accomplish, ban speech, when
it passed 47 U.S.C. § 230 and with its threatening of § 230 sanctions in public or
through congressional hearings if certain speech is not removed from their sites.
Norwood v. Harrison, 413 U.S. 455, 465 (1973); Rendell-Baker v. Kohn, 457 U.S.
830(1982).
51.
In September 2019, Congress held a hearing out of "public safety" concerns.
Mrs. Brooks. [D. 1-1 Exhibit Q-2 P. 184] "We hope you can help us better
understand how Twitter decides when to suspend a user or ban them from the service
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and what you do to ensure that such decisions are made without undue bias. Hon.
Greg Walden [D. 1-1 Exhibit Q-2 P. 17].;"Can you talk to me then just about what
are your current policies? What are the current policies for prioritizing timely take
downs and enforcement?" Mrs. McMorris Rodgers. [D. 1-1 Exhibit Q-2 P. 87];
"what are you going to do to make sure that the election is not in some way
influenced by foreign governments in an inappropriate way?" Ms. Schakowsky. [D.
1-1 Exhibit Q-2 P. 165]; "Far too many Twitter users still face bullying and trolling
attacks." Mr. Pallone [D. 1-1 Exhibit Q-2 P. 19]; false rumors are dangerous. Mr.
Pallone [D. 1-1 Exhibit Q-2 P. 20]; The actions of President Trump have made the
situation worse when he uses Twitter to bully and belittle people, calling them
names like dog, clown, spoiled brat, son of a bitch, enemies, and loser." Mr. Pallone
[D. 1-1 Exhibit Q-2 P. 20], which "foster discord, within our society." Mr. Pallone
[D. 1-1 Exhibit Q-2 P. 20].
52.
Although Mr. Flores states that "This is an oversight hearing. We are not trying
to legislate." [D. 1-1 Exhibit Q-2 P. 174]; Congress takes an authoritive tone versus
someone who is overseeing when its Members make statements such as Twitter
"must do more to regain and maintain the public trust" to stop "bullying, the spread
of disinformation and malicious foreign influence." Mr. Pallone [D. 1-1 Exhibit Q2 P. 21]. "Twitter and other social media platforms must establish clear policies,
provide tools to users and then swiftly and fairly enforce those policies, and those
policies should apply equally to the president, politicians, administration officials,
celebrities, and the teenager down the street." Mr. Pallone [D. 1-1 Exhibit Q-2 P. 2122]; "The company's enforcement seems to chase the latest headline as opposed to
addressing systematic problems". Mr. Pallone [D. 1-1 Exhibit Q-2 P. 21]; "one
persistent critique of Twitter by civil rights advocates and victims of abuse and others
is that your policies are unevenly enforced." Mr. Pallone [D. 1-1 Exhibit Q-2 P. 3233] "But we have to make sure that the enforcement mechanism is there" Mr.
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Pallone [D. 1-1 Exhibit Q-2 P. 34]; "so that we can really reduce these threats online."
Mr. Pallone [D. 1-1 Exhibit Q-2 P. 44]; Twitter needs to strengthen its policies to
ensure that users are protected from fake accounts, misinformation, and harassment"
Mr. Green [D. 1-1 Exhibit Q-2 P. 48]; "I would also hope that you would move the
same resources that have complicated so much of what this hearing has been about
today so that you can focus on this to make sure that this doesn't happen again —
that we wouldn't have to reprimand you to follow the guidelines." Mr. McKinley.
[D. 1-1 Exhibit Q-2 P. 117-118]; "Okay. Good. So the idea is that we will — that
they're (republicans in the house) going to put so much pressure on you to avoid
pressure— from us (members of the house) that you will change your behavior in a
way that's not— that's not fair." Mr. Peters. [D. 1-1 Exhibit Q-2 P. 145]; "I do not
believe that we should just be leaving it [enforcement] to the responsibility of private
companies." Mr. McKinley. [D. 1-1 Exhibit Q-2 P. 117-118]; "if you could report
back to the committee within one month of what steps Twitter is taking to improve
the consistency of its enforcement. Mr. Pallone [D. 1-1 Exhibit Q-2 P. 34, 36].
53.
In April 2019 Nancy Pelosi publicly states "Silicon Valley’s self-regulating
days “probably should be” over"; "It’s a “new era” for tech regulation"; "Silicon
Valley is abusing the privilege of section 230 of the Communications Decency Act,
“230 is a gift to them, and I don’t think they are treating it with the respect that they
should,” she said. “And so I think that that could be a question mark and in
jeopardy.... For the privilege of 230, there has to be a bigger sense of responsibility
on it, and it is not out of the question that that could be removed.”, and "companies
that
maybe
could
be
easily
broken
up."
https://www.vox.eom/podcasts/2019/4/l 1/18306834/nancy-pelosi-speaker-housetech-regulation-antitrust-230-immunity-kara-swisher-decode-podcast
54.
In June 2019, U.S. Senator Josh Hawley (R-Mo.) introduced the Ending
Support for Internet Censorship Act, "which removes the immunity big tech
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companies receive under Section 230". “With Section 230, tech companies get a
sweetheart deal that no other industry enjoys: complete exemption from traditional
publisher liability in exchange for providing a forum free of political censorship,”
https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amendsection-230-immunity-big-tech-companies
55.
In November 2019, U.S. Senator. Ted Cruz (R-Texas), sent a letter to
Ambassador Lighthizer, as reported by Politico, [8] requesting that; [Lighthizer]
"remove Article 19 .17- an Article that mirrors Section 230 of the Communications
Decency Act-from the United States-Mexico-Canada Agreement (USM CA). I also
ask that you remove similar language: Article 18, Section 2 and 3 in the U.S.-Japan
Trade Agreement, and refrain from including such language in future trade
agreements."
(3) "Partner" Benefits
56.
"Section §230 enables Twitter to look at the content and look for abuse and
take enforcement actions against them accordingly" and "enables enforcement of
harassers and bully's." Dorsey Testimony to Congress, [D.l,
113]; [D. 1-1 Exhibit
Q-2P. 121-122].
57.
Twitter receive “benefits” of Executive status in the form of legal immunity
and in the savings of legal fees in return for policing it’s designated public forum
under the government created §230. [D.l, ]j 118]. §230's safe harbors protect
Twitter.” Mr. Walden [D.l, f 112] and saves the government millions while
trampling state and personal interests in free speech. [D.l, ^ 114].
(4) Constitutional Rights
58.
§230 prohibits the freedom of speech under the U.S. Constitution Article [I]
https://www.politico.com/news/2019/! 1/01/ted-cruz-online-liability-trade[8]
deals-063911
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Freedom of expression and the Due Process and Equal Protections clauses within
Articles [IV] and [XIV] and allows these freedoms to be regulated in a
discriminatory manner. [D.l, | 129]. Hall is entitled to free speech, freedom to
Assemble and Freedom of Expression when in a public forum or DPF at Twitter.com.
[D.l, Tf 165]. The infringement upon Hall's speech rises from the actions of Congress
in promulgating and passing §230. Bronner v. Duggan , 249 F.Supp.3d 27, 41
(D.D.C. 2017). Platforms like Twitter were designated by Congress to perform a
governmental operation to police speech which is a function traditionally reserved
exclusively to the state. Freedom Watch, Inc. v. Google, Inc., 368 F. Supp. 3d 30, 40
(D.D.C. 2019); Marsh v. Alabama, 326 U. S. 501 (1946); The Complaint alleges
more than just the sole reason that Twitter provides a public forum.
59.
Twitter itself believes that its computer network is a public square and public
space. [D. 1, Tf 104], a digital public square", [D. 1-1 Exhibit Q-2 P. 23], that they are
hosting." [D. 1-1 Exhibit Q-2 P. 169]. Twitter has intentionally transformed its
computer network into a public forum, [9] square or market, a public gathering place,
a downtown business district or community, [D.l,
107], and a public forum open
to the public for the purpose of speaking in public. [D.l,
106];
(5) Conclusion
60.
A private individual acts under color of law within the meaning of section
1983 when he acts together with state officials or with significant state aid. Bigio v.
the Coca-Cola Company, 235 F.3d 63, 71-72 (2d Cir. 2000).
61.
The Complaint sufficiently alleges Twitter acted in concert with state actors
is sufficient under the standards of Adickes v. S. H. Kress & Co., 398 U. S. 144, 398
U. S. 155-156 (1970); e.g., O’Handley v. Weber, No. 22-15071, 2023 WL 2443073,
[9] Federal Appeals Court declared government officials accounts are designated
"digital public forum's or DPF'S with first amendment protections. [D.l, 108].
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at *4-5 (9th Cir. Mar. 10, 2023); Freedom Watch at. 816, in that Congress and
Twitter is "pervasively entwined" with Congress and has entered into a "joint
enterprise" or a "symbiotic relationship" with each other in a federal action not for
goods or services, but to regulate and ban speech. Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961).
62.
'Twitter, although a private entity, was a state actor in this situation because:
(1) Twitter cannot carry out its statutory mission without governmental assistance
and it relies on Congress's gift of Section 230 to operate, (2) its services involve
governmental functions and (3) the suppression of Hall's Tweets and banning of his
contract was done under an assumption of sovereign powers of compulsion.
Edmonson v. Leesville Concrete Co.,
U.S.
,111 S.Ct. 2077, 2083, 114
L.Ed.2d 660 (1991); Lugar v. Edmondson Oil Co.,457 U.S. 922, 102 S.Ct. 2744, 73
L.Ed.2d 482 (1982); Adickes at, 142; United States v. Price,383 U.S. 787, 86 S.Ct.
1152, 16 L.Ed.2d 267 (1966); United States v. Wiseman,445 F.2d 792 (2d Cir.).
denied 404 U.S. 967, 92 S.Ct. 346, 30 L.Ed.2d 287 (1971); Howard Gault Co. v.
Texas Rural Legal Aid,848 F.2d 544, 552-57 (5th Cir. 1988).
63.
Some lower courts that have examined this issue, however, have determined
that private police forces may become state actors in certain circumstances.
Romanski v. Detroit Entertainment. L.L.C., 428 F.3d 629,638 (6th Cir. 2005)
(private security guard was state actor); Payton v. Rush Presbyterian-St. Luke
Medical Center, 184 F.3d 623 (7th Cir. 1999) (private police could be state actor);
Boyle v. Torres, 756 F. Supp. 2d 983, 995 (N.D. Ill. 2010); Fusco v. Medeiros, 965
F. Supp. 230, 249 (D.R.I. 1996) (whom the state confers limited legal authority,
actually uses that authority when engaging in the conduct complained of).
64.
§230 restricts the right of individuals to speak freely in public forums. [D.l, f
130], and prohibits the freedom of speech under the U.S. Constitution Article [I]
Freedom of expression and the Due Process and Equal Protections clauses within
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Articles [IV] and [XIV] and allows these freedoms to be regulated in a
discriminatory manner. [D.l,
129]
IX. MAGISTRATE JOHNSTONE’S ILLEGAL POLICY
65.
The undisputed facts are that:
Judge Johnstone set in motion an unconscionable scheme calculated to
interfere with the judicial system's ability to impartially adjudicate a matter by
improperly influencing the trier of fact, or attempted to, utilizing ex-parte
communications and by unfairly hampering the presentation of Appellant's claims
through a bias and unconstitutional tribunal. [Exhibit A- P. 94].
66.
Judge Johnstone promulgated and administered her own pro hac vice rules
specifically to benefit Twitter and allow Twitter Counsel to appear before the Court
although they lacked the requirements of eligibility, and that these special benefits
continued for a period of over 2 years, and covering 68 incidents, ROA, 165-168,
then it could rightly be stated that self-promulgated rules administered by a Court,
for a period of over 2 years and covering 68 incidents would be, albeit illegal,
construed to be a policy of the Court. Gleaning from these submissions to the Court
is that these illegal policies demonstrate a bias of the Court for a particular entity,
over an extended period of time and through several cases, is sufficient to raise a
reasonable inference of the appearance of actual or apparent bias or prejudice.
[Exhibit A- P. 87].
67.
If you start at point A of the illegal policy, ROA, 261-263, Br., at 60. then add
up how many times it was utilized, and for who's benefit, the Court's bias in favor of
Twitter emerges. And although Mrazik was not a part of Appellant's case, his UPL
in the Court throughout 2018, ROA 164-238 (Dkt. 74.1), demonstrates continuous
use of the illegal policy and the Courts acceptance of that illegal policy which
establishes bias of the Court in favor of Twitter. See (Case: 20-1933 Document:
00117781153, Filed: 08/30/2021). [Exhibit A-P. 88],
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Judge Johnstone's unwritten, illegal pro hac vice unofficial policies, allowed
COIE and partner attorneys of COIE, on 68 separate occasions, the privilege of
practicing before the Court, even though these attorneys lacked any of the
requirements of eligibility demanded under Local Rules 83.1 and 83.2 to practice
before the Court and in violation of New Hampshire Statute 311:7. [Exhibit A- P.
87],
69.
Magistrate Judge Johnstone was, on a continuous basis, intentionally ignoring
New Hampshire law and established official court pro hac vice rules, and instead
promulged, implemented, managed and adopted her own non-public alternative
admission procedures, within her administrative case management duties, that make
pro hac vice laws and rule provisions unnecessary and for the specific reason of,
allowing partner attorneys from the law firm of Perkins Coie, LLP. COIE, Ryan
Mrazik and Julie "Schwartz", the privilege of practicing before the Court although
they lacked the requirements of eligibility set forth in Local Rule 83.2 and in
violation of New Hampshire State RSA 311:7 and all to the benefit of the defendant,
Twitter. [Exhibit A- P. 86-87].
70.
Judge Johnstone's illegal policy: (1) was inconsistent with and contrary to
Acts of Congress; (2) was not prescribed by the Enabling Act of 1934 and rules of
practice and procedure prescribed under 28 U.S.C. § 2071(a) and (b) and 28 U.S.C.
§ 2072 and is therefore unconstitutional; (3). Violates 28 U.S.C. § 2071(f) as they
were not prescribed by the COURT, and are therefore unconstitutional; (4)
circumvented the COURTS' prescribed LR's governing practice and procedure; (5)
was not authorized by any federal statute; (6) was not recommended by any rules
advisory committee; (7) was inapposite with N.H.R.S.A. 311:6 and 311:7; (8)
usurped and preempted the power of the governing State Authority; (9) was not
created as an immediate need under 2071(e); (10) lowered attorney eligibility
required under LR 83.2 only for attorneys representing Twitter or employed by
Page 27 of 40
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 39
Date Filed: 08/30/2023
Entry ID: 6588352
Perkins Coie; (11) operated with unlimited power; (12) operated with no restrictions;
(13) operated without any established standards and was secretive to the public and
Plaintiff; (14) was substantially biased in favor of Twitter and its Coie attorneys and
are therefore unconstitutional; (15) was a moving force behind the ; (16) was the
moving force behind all of the COURTS preconceived orders or pleadings, in
Plaintiffs. See [Doc. 1, case l:21-cv-01047, N.H. Federal District Court]. [Exhibit
A-P. 158-159].
71.
The Court was noticed of Judge Johnstone's illegal policy on March 18, 2021,
Plaintiff filed Doc. 74, Exhibits at 74.1 and on April 16, 2021, McAuliffe Recusal
Motion, Doc. at 77, and with the [COMPLAINT] filed in Case No. l:21-cv-01047LM on December 9, 2021, Plaintiff has made well known to the Court Judge
Johnstone's actions such as promulgating and utilizing illegal policies; disregarding
laws; using the judge's office to obtain special treatment for the defendant Twitter;
and among other acts committed in; Case No. l:19-cv-009 78-JL, involving Justice
Joseph Normand Laplante and Judge Johnstone, which was live from September 17,
2019, through January 28,2021; Case No. 1:17-cv-00733-PB, involving Justice Paul
Barbadoro and Judge Johnstone, which was live from December 21, 2017, through
April 25, 2019; Case No. l:18-cv-00203-PB, involving Justice Paul Barbadoro and
JOHNSTONE, which was live from March 5,2018, through April 4, 2019; Case No.
l:17-cv-00749-JD, involving Justice Joseph A. DiClerico Jr. and Judge Johnstone,
which was live from December 21, 2017, through June 12, 2018. [Exhibit A- P. 63].
72.
Judge Johnstone was reappointed to a second eight-year term effective June
16, 2022. [Exhibit A- P. 82, Hall Declaration].
A. Biased Tribunal
73.
Hall asks this Court to void Judge Elliott's orders as Judge Elliott was
disqualified under 26 U.S. Code § 455 at the time she entered each of her orders. See
[Doc. 142]. Judge Elliott through her administrative position was aware of the
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 40
Date Filed: 08/30/2023
Entry ID: 6588352
material facts of Hall's complaints concerning Magistrate Johnstone's illegal policy.
This influenced her decisions, and even if it did not, judges have an obligation to
maintain an appearance of impartiality that goes beyond mere actual impartiality.
Under Federal Rule of Civil Procedure 60(b), the final judgment should have been
vacated. See [D. 141].
74.
Because Judge Elliott was disqualified under § 455 at the time she entered
each of Judge Elliott's orders and judgment in favor of Twitter, they should be set
aside under the standards of Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 850-51 (1988). In Liljeberg, the Supreme Court found that the judge learned he
had a fiduciary interest in the case and, therefore, that his disqualification was
required under § 455(b) (4), as well as § 455 (a). Liljeberg, at 866-67. The violation
of § 455(b) (4) contributed to the Court's holding that vacatur of the judge's decision
benefiting the University on whose board he served “was an appropriate remedy.”
Id. at 867.
75.
A reasonable person might question the Court's ability to decide impartially
on Hall's Motion to Strike, because Judge Elliott has already condoned Judge
Johnstone's actions through the re-appointment of Judge Johnstone to another term,
has personal knowledge of Johnstone's illegal policies through the re-appointment
process, (or Judge Johnstone's own view of her policies) and now cannot be a pure
and fair jurist to answer the question of whether Twitter and its attorneys participated
in utilizing Judge Johnstone's illegal policies through fraud upon the court, in which
their motion should be stricken or voided from the record.
B. Motions to Void
76.
Hall motioned the Court, [Doc. 143] to void all the trial court's orders and
judgments, on the grounds that the Court failed to provide an unbiased tribunal by:
(1) utilized illegal policies when determining Hall's motion to Strike, (2) failing to
consider substantive State Laws, (2) and all three judges displayed a bias in favor of
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046219
Page: 41
Date Filed: 08/30/2023
Entry ID: 6588352
the defendant Twitter by their omission of Johnstone's illegal policy, and because (3)
Twitter has made numerous misrepresentations, omissions so as to form a pattern of
fraud before the Court.
77. The Court errored in law in not finding that Magistrate Johnstone's acts of writing
an illegal policy to benefit Twitter, Judge McAuliffe’s and Judge Elliott's failure to
apply substantive laws, federal laws, and precedents and Judge McAuliffe's acts in
complete absence of jurisdiction, and Twitters participation in submitting pleadings
to the Court that follow the pattern of fraud, with the intent to deceive, mislead,
which damaged Hall.
78.
The Court and it’s Judges have demonstrated actual bias in favor of the
Defendant Twitter, utilized unofficial policies in their decision making, and acted in
a manner inconsistent with due process of law. The rendering of these judgments,
preconceived in Twitter's favor, were reached without due process of law, are without
jurisdiction and are void as the United States is forbidden by the fundamental law to
take either life, liberty or property without due process of law, and its courts are
included in this prohibition. Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949); illegal
policy and bias which was administered by the Court. City of Canton v. Harris, 489
U.S. 378, 388 (1989).
79.
The Court, through the actions of these three Judges, acted in a manner
inconsistent with due process of law, and therefore it’s judgments are void. See:
Wright and Miller, Federal Practice and Procedure: Civil, § 2862, pp. 199-200.
C. Strike Motions
80.
Within Hall's [Doc. 100] Motion to Strike, he asks the Court to Strike Twitters
[Doc. 3] Motion to Dismiss because it was scandalous and was submitted by Twitter
as part the fraud upon the Court successfully perpetrated in part by Judge Johnstone,
Twitter and its attorneys utilizing Judge Johnstone's illegal Policies and that Twitter
should not otherwise benefit from the fraud upon the court.
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
81.
Document: 00118046219
Page: 42
Date Filed: 08/30/2023
Entry ID: 6588352
Judge Elliott errored in fact in order [D. 124], in finding that Hall's Strike
Motion in its unsupported findings that Hall sought to strike Twitter's [D. 3] Motion
to Dismiss because; (1) it includes on its signature line the name of Julie E. Schwartz,
(2) the notation “(motion for pro hac vice admission to be filed, (3) allowing the
names of other attorneys from Attorney Schwartz’s law firm to appear on the
signature line of filings, (4) Attorney Schwartz’s name on the filing is an example
of Magistrate Judge Johnstone’s purported illegal pro hac vice policies," (5) that
Hall's claims are based on identical grounds as Wolford v. Budd Co., 149 F.R.D. 127,
130 (W.D. Va. 1993).
82.
It is an error of fact to state that Hall's motion to strike is simply based upon
an attorneys name on the pleading or signature line, when Hall clearly advocates that
the [D. 3] pleading not be accepted because (1) it was "submitted" on behalf of
Twitter by Attorney "Schwartz" while practicing law "unauthorized" and in violation
of N.H. "RSA 311:7", and therefore the document is illegal under N.H. law, and
scandalous under the federal rules, and (2) as it was part of the privilege of practicing
before the Court, on behalf of Twitter, although the attorneys lacked the
requirements of eligibility set forth in LR 83.2, and were in violation of RSA 311:7,
all to the benefit of the defendant, Twitter, and that Twitter should not benefit from
such scheme. (I.e. favors creating an unconstitutional Court). See [D. 100-2].
83.
It is an error of fact to state that Hall's motion to strike is based on identical
grounds as cases such as Wolford. Wolford only answers in the negative based upon
the singular question of whether pleadings filed by attorneys not admitted to practice
before the court should be dismissed or declared a nullity under Pavlak, and therefore
never reaches the questions presented here, illegality under N.H. law and fruits of
fraud.
84.
The Court errored in law in finding that Twitter's [D. 3] Dismiss Motion was
not a scandalous matter, unfit for the Court and must be stricken. Washington Post
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Document: 00118046219
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Date Filed: 08/30/2023
Entry ID: 6588352
Co. v. Chaloner 1746, 63 L. Ed. 987, 39 S. Ct. 448, 250 U.S. 290 (1919). While
acknowledging that this Court has considerable discretion under Fed.R.Civ.P. 12(f).,
under the circumstances here, the District Court need not to use its discretion as it
has already been resolved through RSA 311:7 and the Rules of this Court. Twitter's
D. 3] Motion to Dismiss and MOL to be prejudicial to the Plaintiff and in violation
of RSA 311:7, ABA Rule 5.5(c)(2) and LR 83.1, and is illegal and therefore
scandalous and therefore an insufficient defense under Fed.R.Civ.P. 12(f) and
therefore, must be stricken or void(ed) from the record in its entirety.
85.
The Court errored in failing to identify which facts are material under
substantive law (NH RSA 311] prior to adjudicating procedure matters. Anderson v.
Liberty Lobby, Inc., All U.S. 242, 248 (1986).
86.
It is error in Law (28 U.S. Code § 1652) not to apply state substantive law
[10] and only federal rules for procedural matters in diversity cases. Hoyos v.
Telecorp Communications, Inc.,4%8 F.3d 1, 5 (1st Cir.2007) (citing Gasperini v. Ctr.
for Humanities, Inc.,518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996);
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 92, 58 S.Ct. 817, 82L.Ed. 1188 (1938). The
question raised by Hall's motion to strike involve the substantive law as to the rights
and when asking whether or not the court should accept an illegal or otherwise
scandalous liabilities of the parties based upon claim that the document is illegal,
part of an illegal act or are fruits of illegal activity and that the issue only become
[10] RSA 311:7 is substantive as the sovereign NH legislature intended it to be used
"statewide" in court[s] within the State of New Hampshire. The forum state was
understood as having the sole power to regulate the means by which causes of action
were litigated in its courts, because the courts' activities were within its borders. The
Order Violates Plaintiffs procedural due process rights under the Fourteenth
Amendment because the court failed its duty to ensure that legal procedures were
carried out in a fair and just manner and failed to observe and apply substantive state
statutory laws prior to any application of federal rules.
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procedural document into its court of Law. (Emphasis). See [D. 113]. And that state
law controls the rights and duties of the parties in a federal action founded on
diversity. Erie Ry at 817.
D. Default Motions
87.
The Court errored in fact when denying [D. 124] Hall's Default Motion [D.
101], in finding that Hall's claims to Strike and Default were "merely because it
includes the name of an out-of-state attorney who was not yet admitted pro hac vice",
or that it was based upon an attorneys name on the pleading or signature line, or that
Hall's motion to strike is based on identical grounds as cases such as Wolford. See
above.
88.
It is an error in Law in failing to identify which facts are material under
substantive law prior to adjudicating procedure matters, and to not apply state
substantive law (NH RSA 311:7) and only federal rules for procedural matters in
diversity cases under 28 U.S. Code § 1652. See STRIKE MOTION above.
E. Motion to Renew
89.
The Court errored in Law when granting Twitter's [D. 99] motion to renew
its [D. 3] motion for the reasons set forth in Hall's Motion to Strike and Motion to
Default above.
X. THE REAPPOINTMENT COMMISSION
90.
The Magistrate Re-appointment process is administered through the
administrative office of the United States Courts. Triggered by rule by Magistrate
"Judge Johnstone, a re-appointment "Commission" was formed per statute[11] in
late 2021 and a "Merit Selection Panel" was appointed and notice to the public was
sent out in early January 2022, and Judge Johnstone was reappointed by the
Commission to a second eight-year term effective June 16, 2022, despite her bad
[11] See 28 U.S.C. § 631
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Document: 00118046219
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behavior. [12]
91.
The subject matter before the administrative Article III panel was to determine
if the Court should re-hire Judge Johnstone despite comments that her previous work
for the Court, demonstrated bad (moral) character, judgment, legal ability,
temperament, and a commitment to equal justice under the law, despite writing
unofficial rules for Twitter and its attorneys, and to the detriment of the Plaintiffs in
their cases, [Exhibit A- P. 29], to which Hall's credibility was not the issue as the
reappointment proceeding was an administrative or re-hiring proceeding [Exhibit AP. 12].
92.
The tasks to be performed by the judges on the Commission are clearly
nonjudicial in nature, and do not involve the exercise of Article III power to
adjudicate cases and controversies. While it would be unheard of for an Article III
Judge to reject the call of the President, at least in theory these three individual
members of the judiciary serve voluntarily as commissioners and are empowered as
such under the Act, rather than as an Article III Court. President's Com'n on
Organized Crime ("Scarfo"), 783 F.2d 370, 377 (3d Cir. 1986) (historical list of
extra-judicial activities of judges). Their removal from this office by the President
under 28 U.S.C. § 991(a) would leave their judicial powers intact. U.S. v. Hickernell
690 F. Supp. 272 (S.D.N.Y. 1988).
93.
Hall filed comments to the Merit Selection Panel citing his ]D. 74] Rule 60
[12] The Federal Magistrate Act of 1979 (Pub. L. No. 96-82; 93 Stat. 643)
established certain minimum standards and procedures for the selection and
appointment of United States magistrate judges, which are codified at 28 U.S.C. §
631. In accordance with 28 U.S.C. § 631(b)(5), the Judicial Conference of the United
States has promulgated the Regulations of the Judicial Conference of the United
States Establishing Standards and Procedures for the Appointment and
Reappointment of United States Magistrate Judges (Id. Appendix J).
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Document: 00118046219
Page: 46
Date Filed: 08/30/2023
Entry ID: 6588352
Motion, which alleges Judge Johnstone's unconstitutional bad behaviors.
[Appellant's Brief "AB", Exh. 6]. Hall then filed amended comments to the Merit
Selection Panel, [Appellant's Brief "AB", Exh. 6], attaching his [Rule 59(e) Motion]
objections filed in Case No. l:21-cv-01047-LM, stating that he believes Judge
Johnstone set in motion an unconscionable scheme calculated to interfere with the
judicial systems ability to impartially adjudicate a matter by improperly influencing
the trier of fact, or attempted to, utilizing ex-parte communications and by unfairly
hampering the presentation of Appellant's claims through a bias and unconstitutional
tribunal, which amounts to judicial misconduct.
A. Recusal
94.
Hall appeals Judge Elliott's 11/23/2022 order denying Hall's [D. 104] recusal
motion pursuant to 28 U.S.C. "§ 144", 28 U.S.C. § "455(a)" and 28 U.S.C. §
"455(b)(1)". Both the 11/23/2023, Order and Order [D. 124] violate Hall's
substantive due process right to have his case tried before an impartial judge which
is a fundamental right essential to a fair trial, and his statutory rights within § 144
and § 455 to have a non-bias or even the appearance of a bias judge preside over the
case as Judge Elliott has refused to recuse herself.
95.
Hall filed a [D. 104] recusal motion stating that Judge Elliott's Commission
decision disregarded Judge Johnstone's previous performance of disregarding rules,
statutes and laws, and that her dual role[s] [Administrative/Judicial] gives the
appearance of objective bias or partiality to be constitutionally intolerable and that
she should recuse herself. Hall also stated that Judge Elliott participated in the
process of voting in chambers, among other Article III judges, which voted to re
appoint Judge Johnstone, despite her bad behavior, and was either compliant with
her Article III administrative duties and has investigated Hall's claims and Judge
Johnstone's illegal policy and thus has personal knowledge or "extrajudicial"
information (knowledge of disputed evidentiary facts, prior conduct, prior
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knowledge or an administrative connection with the case), and personal knowledge
of off-the-record briefings in chambers, administrative or other meetings with other
justices, clerks or personnel which leave no trace in the record, and not what she has
learned through [Hall's] case, and would be commingling her duties as administrator,
advocate and Judge, which violate Hall's Fifth Amendment rights to an impartial
tribunal and that due process guarantees an absence of actual bias on the part of a
judge, and that judges must not "become an advocate or otherwise use . . . judicial
powers to advantage or disadvantage a party unfairly," [13]
96.
The Court errored in Law under § 144 as Hall has demonstrated through
declaration, (considered to be true} In re Martinez Catala, 129F.3d213,218(lst
Cir. 1997). that Judge Elliott has a personal bias or prejudice either against him or
in favor of Twitter; to allow a District Court Judge to preside in a case where (s)he
has also administratively and extra-judicially participated, inquired, investigated,
reviewed panel notes and comments from the public and voted (among the other
Article III justices) to re-appoint a Magistrate, which included identical material
facts within this case. Gonzalez-Gonzalez, at 7-8.
97.
The Court errored in law under the standards of § 144 and § 455(a), which
only requires the appearance of partiality, not the existence of actual partiality.
[13] Due process U.S. CONST. AMEND V guarantees “an absence of actual bias”
on the part of a judge. In re Murchison, 349 U.S. 133, 136 (1955). Due process
essential to a fair trial. Mitchell v. Sirica, 502 F.2d 375, 390 (D.C. Cir. 1974); see
Tumey v. Ohio, 273 U.S. 510, 535 (1927); United States v. Gonzalez-Gonzalez,
Criminal No. 93-318 (FAB), 6-7 (D.P.R. Feb. 27, 2019). "It is axiomatic that '[a]
fair trial in a fair tribunal is a basic requirement of due process."' Caperton v. A.
T. Massey Coal Co. 556 U.S. 868 (2009), (quoting Murchison at, 133, 136; Guthrie
v. WERC, 111 Wis. 2d 447, 454, 331 N.W.2d 331 (1983); "constitutionally
unacceptable." See Withrow v. Larkin, 421 U.S. 35, 47 (1975); Nicodemus v.
Chrysler Corp., 596 F.2d 152, 155-56 (6th Cir. 1979) (quoting Whitaker v. McLean,
118 F.2d 596, 596 (D.C. Cir. 1941)).
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PETITIONER HALL'S
EXHIBIT E
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Document: 00118046219
Page: 48
Date Filed: 08/30/2023
Entry ID: 6588352
"Appears to be so.” Liteky v. United States, 510 U.S. 540, 553 n.2 (1994). Martinez
Catala at, 213, 220; Reasonable standards concerning impartiality. United States v.
Hines, 696 F.2d 722, 728 (10th Cir. 1982); Franks v. Nimmo, 796 F.2d 1230, 123435 (10th Cir. 1986); United States v. Nelson,718 F.2d 315, 321 (9th Cir. 1983);
Hoover v. Ronwin,466 U.S. 558, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984). United
States v. Mirkin, 649 F.2d 78, 81 (1st Cir. 1981). To require disqualification, the
alleged bias or prejudice must be both "(1) personal, i.e., directed against a party,
and (2) extrajudicial." United States v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979).
United States v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983)
98.
This approach advances Congress’ intent to ensure that the “courts must not
only be, but must seem to be, free of bias.” In re United States, 158 F.3d 26, 36 (1st
Cir. 1998); Liljeberg at, 847, 860 (1988) (“The goal of § 455(a) is to avoid even the
appearance of partiality” and to “promote public confidence in the integrity of the
judicial process.”). The Court must “take the objective view of an informed outsider”
and decide whether a reasonable, informed outsider “might question the judge’s
ability to remain impartial in hearing the case[.].” In re United States, at 67; In re.
Bulger, 710 F.3d 42, 45-46 (1st Cir. 2013). Where recusal is a close question, “the
balance tips in favor of recusal.” In re Boston’s Children First, 244 F.3d 164, 167
(1st Cir. 2011). § 455(a) also provides that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.”
99.
The Court errored in law under the standards of § 455(b)l, as 455(b)(1),
requires recusal where the judge has "personal knowledge of disputed evidentiary
facts." In Hall's Motion to Recuse he states that because Judge Elliott was involved
with the re-appointment proceedings of Judge Johnstone, those same evidentiary
matters at issue during the re-appointment process are the same evidentiary matters
surrounding Judge Johnstone's illegal Policies are at issue in Hall's case, e.g., United
States v. Alabama, 828 F.2d 1532, 1543-46 (11th Cir. 1987) (holding recusal
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mandatory under § 455(b)(1) where trial judge's activities had involved him in
"disputed evidentiary facts"), cert, denied, 487 U.S. 1210, 108 S.Ct. 2857, 101
L.Ed.2d 894 (1988). El Fenix de Puerto Rico v. The MZY Johanny, 36 F.3d 136, 141
n.4 (1st Cir. 1994).
100. The tasks to be performed by the judges on the Commission are clearly
nonjudicial in nature, and do not involve the exercise of Article III power to
adjudicate cases and controversies. While it would be unheard of for an Article III
Judge to reject the call of the President, at least in theory these three individual
members of the judiciary serve voluntarily as commissioners and are empowered as
such under the Act, rather than as an Article III Court. Scarfo at 370, 377 (historical
list of extra-judicial activities of judges). Their removal from this office by the
President under 28 U.S.C. § 991(a) would leave their judicial powers intact.
Hickernell, at 272. See Hall's Arguments [D. 104] Motion to Recuse.
101. Accepting the facts as alleged in Hall's [D. 104] Motion to Recuse and [D.
104-1] Declaration as true, Judge Elliott, through her administrative statutory duties,
[14] Judge Elliott served on the Commission, participated, [15] inquired,
investigated, reviewed panel notes and comments from the public and voted (among
the other Article III justices) to re-appoint Judge Johnstone although Judge
Johnstone's unofficial Policies perpetuated fraud upon the court and created an
unconstitutional proceeding which violated the rights of Hall, and that knowledge of
a party or knowledge of disputed evidentiary facts gained "outside the case"
constitutes grounds for recusal under § 455(a) because her acts “inferable” or
[14] InForresterv. White, 484 U.S. 219, 229,108 S.Ct. 538,98 L.Ed.2d 555 (1988),
(administrative decisions " not judicial or adjudicative."
[15] The theme is that there is an almost irrebuttable presumption that a judge is
"tainted" and must be disqualified where, as here, she surrounded herself with
individuals who may not be truly disinterested. See [D. 104]
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Entry ID: 6588352
“inferred” to be bias. United States v. Torres, 128 F.3d 38, 46-47 (2d Cir.1997);
United States v. Greer, 285 F.3d 158, 171 (2d Cir.2002).
XI. CONCLUSION
102. Magistrate Johnstone's illegal policy and the omission and acts by the three
judges, unconstitutionally tainted the entire case, Judge Elliott's personal knowledge
is unlawful requiring vacatur, Twitter's dismiss motion is scandalous requiring
default, and void as substantive law was not followed. Hall has stated three (I, II, III)
adequate claims under the standards of law, Twitter acted as a Federal Actor on
behalf and at the request of Congress to silence Hall's free speech and freedom of
expression.
Wherefore, because the Court made factual findings on a motion to dismiss and
reached factual conclusions in fact and law that are inconsistent with the Complaint,
the courts decisions should be reconsidered and reversed.
Respectfully submitted,
DANIEL E. HALL
Pro Se
XII. CERTIFICATE OF SERVICE
I certify that on this date, I served the foregoing Appellant's Brief upon the
Defendant, through its attorney of record, Demetrio F. Aspiras, counsel of record,
via the Court’s electronic filing system.
Dated: August 28, 2023
/s/Daniel E. Hall
Pro Se Petitioner
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Document: 00118046219
Page: 51
Date Filed: 08/30/2023
Entry ID: 6588352
XIII. CERTIFICATE OF COMPLIANCE
Certificate of Compliance With Type-Volume Limit, Typeface Requirements,
and Type-Style Requirements
1. This document complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(i)
because, excluding the parts of the document exempted by the Fed. R. App. P. 32(f):
this document contains no more than 13,000 words.
2. This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because:
this document has been prepared in a proportionally spaced typeface using
Microsoft Word 2010 in Times New Roman, 14-point font.
Dated: August 28, 2023
/s/ Daniel E. Hall
Pro Se Petitioner
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PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046222
Page: 1
Date Filed: 08/30/2023
Entry ID: 6588352
United States Court of Appeals
For the First Circuit
No. 23-1555
DANIEL E. HALL, a/k/a Sensa Verogna,
Plaintiff - Appellant,
v.
TWITTER, INC.,
Defendant - Appellee.
APPELLEE’S BRIEFING NOTICE
Issued: August 30, 2023
Appellee’s brief must be filed by September 27, 2023.
The deadline for filing appellant’s reply brief will run from service of appellee’s brief in
accordance with Fed. R. App. P. 31 and 1st Cir. R. 31.0. Parties are advised that extensions of
time are not normally allowed without timely motion for good cause shown.
Presently, it appears that this case may be ready for argument or submission at the coming
December, 2023 session.
The First Circuit Rulebook, which contains the Federal Rules of Appellate Procedure, First
Circuit Local Rules and First Circuit Internal Operating Procedures, is available on the court’s
website at www.cal.uscourts.gov. Please note that the court’s website also contains tips on filing
briefs, including a checklist of what your brief must contain.
Failure to file a timely brief in compliance with the federal and local rules could result
in the appellee not being heard at oral argument. See 1st Cir. R. 45.0.
Maria R. Hamilton, Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118046222
Page: 2
Date Filed: 08/30/2023
Entry ID: 6588352
John Joseph Moakley
United States Courthouse
1 Courthouse Way, Suite 2500
Boston, MA 02210
Case Manager: Antonio Lopez-Bianco - (617) 748-9060
cc:
Seth R. Aframe
Demetrio F. Aspiras III
Daniel E. Hall
Kenneth Michael Trujillo-Jamison
PETITIONER HALL'S
EXHIBIT E
Case: 23-1555
Document: 00118064784
Page: 1
Date Filed: 10/19/2023
Entry ID: 6598636
UNITED STATES COURT OF APPEALS
for the
FOR THE FIRST CIRCUIT
Case No. 23-1555
DANIEL E. HALL,
PLAINTIFF - APPELLANT,
- v. -
TWITTER, INC.,
DEFENDANT - APPELLEE.
Appeal from the United States District Court
For the District of New Hampshire
Case No. l:20-cv-00536-SE
Judge Samantha D. Elliott
APPELLANT’S REPLY BRIEF
Daniel E. Hall, PRO SE
Aka. Sensa Verogna
SensaVerogna@gmail.com
Dated: October 18, 2023
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 2
Date Filed: 10/19/2023
Entry ID: 6598636
TABLE OF CONTENTS
TABLE OF CONTENTS.......................................................... ....................................
AUTHORITIES............................................................................................................
I. PRELIMINARY STATEMENT.................................................................................
II. REVIEW STANDARDS..........................................................................................
III. TWITTER’S DEFENSES.......................................................................................
IV. THE COURT ERRORED IN DISMISSING HALL’S COMPLAINT....................
A. Claim I- Racial
. Discrimination in Violation of Section 1981...............
)
B. Claim II- Racial Discrimination in a Place of Public Accommodation
in Violation of Title II.
C. Claim III- Violations of Free Speech.............................................. ........
V. THE COURT ABUSE ITS DISCRETION BY DENYING HALL’S
VARIOUS PRE- AND POST-JUDGMENT MOTIONS..........................................
A. The Court Abused Its Discretion in Its Pre-Judgment Orders.........................
1. The judge abused her discretion in not recusing herself from the case.
2. The judge abused her discretion in not striking and defaulting Twitter
and renewing Twitter’s [D. 99] renewal of its motion to dismiss.............
B. The District Court Abused Its Discretion in Its Post-Judgment Orders..........
1. Hall’s Doc. Rule 60(b) Motions Are Not Defective..............................
2. The Court Improperly Denied Hall’s Doc. 143 Rule 60(b) Motion.....
3. The Court Improperly Denied Hall’s Rule 59(e) Motion.....................
VI. CONCLUSION
VII. CERTIFICATE OF SERVICE..........
VIII. CERTIFICATE OF COMPLIANCE
I.
l.
li.
1
1
3
5
5
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11
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15
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18
18
18
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20
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,21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 3
Date Filed: 10/19/2023
Entry ID: 6598636
Authorities
SUPREME COURT
Ashcroft v. Iqbal, 129 S. Ct. 1950 (2009)
Atlantic Corp. v. Twombly :: 550 U.S. 555 (2007)
Bates v. City ofLittle Rock, 361 U.S. 516, 523 (1960)
Biden v. Missouri :: 595 U.S.
(2022)
Branti v. Finkel, 445 U.S. 507, 512 n. 6, 100 S.Ct. 1287, 1291 n. 6, 63
L.Ed.2d 574 (1980)
Brentwood Academy v. Tennessee Secondary School Athletic
Association , 535 U.S. 971 (2002).
Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961);
Carparts Distribution Ctr., Inc. v. Automotive Wholesaler's Ass'n, 37
F.3d 12, 19 (1994)
Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct.
1009, 1014 (2020)
Doe v. Facebook, Inc. 142 S. Ct. 1087 (2022)
Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006)
Evans v. Newton, 382 U.S. 296, 301 (1966)
In Ex parte Virginia , 100 U. S. 339 (1880)
15
1921 (2019).
Marsh v. Alabama, 326 U.S. 501 (1946)
McDonald v. Santa Fe 17 Trail Transp. Co., 427 U.S. 273, 295 (1976)
McDonnell Douglas Corp. v. Green, 411 U.S. 972 (1973)
O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)
Pallozzi v. Allstate Life Ins. Co ., 198 F.3d 28, 33 (1999)
Rumsfeld v. Forum for Academic and Institutional Rights [FAIR], 547
U.S. 47 (2006).
Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987)
(1981)
United States v. Wong Kim Ark, 169 U.S. 649, 675-676 (1898)
West v. Atkins, 487 U. S. 42 (1988)
Wooley v. Maynard, 430 U.S. 705 (1977)
FIRST CIRCUIT
Blizardv. Frechette, 601 F.2d 1217, 1221 (IstCir. 1979)
II.
1
6
12
12, 13
16
13
12, 13
11
8
4
9
15
17
4
15
12
8
5
10
10
12
10
5
8
14
12
17
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 4
Date Filed: 10/19/2023
2006)
FDIC v. Ramirez-Rivera, 869 F.2d 624, 626 (1st Cir. 1989)
Garrett v. Tandy Corp., 295 F.3d 94, 98 (1st Cir. 2002)
Hammond v. Kmart Corp., 733 F.3d 360, 362 (1st Cir. 2013)
Harley-Davidson Motor Co., Inc. v. Bank ofNew England-Old
Colony, N.A ., 897 F.2d 611, 616 (1st Cir. 1990)
In re United States, 158 F.3d 26, 36 n.8 (1st Cir. 1998)
Lemelson v. U.S. BankNat’l Ass’n , 721 F.3d 18, 21 (1st Cir.2013)
Lipsett v. Univ. ofP.R., 864 F.2d 881, 896 (1st Cir. 1988)
Robidoux v. Muholland, 642 F.3d 20, 22 (1st Cir.2011)
Skwira v. United States, 344 F.3d 64, 72 (1st Cir. 2003)
United States v. Cowden , 545 F.2d 257, 265 (1st Cir. 1976)
United States v. Mardirosian , 602 F.3d 1,7 (1st Cir. 2010)
United States v. Neto, 659 F.3d 194, 200 (1st Cir.2011)
Cir. 1993)
Cir. 2001)
Cir. 2007)
Valentin v. Hosp. Bella Vista , 254 F.3d 358, 365 (1st Cir. 2001)
2004)
Williams v. United States, 858 F.3d 708, 714 (1st Cir. 2017)
OTHER CIRCUITS
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007)
1359 (11th Cir. 1999)
Doe v. GTE Corp. 347 F.3d 655, 659 (7th Cir. 2003)
Hook v. McDade, 89 F.3d 350, 353-54 (7th Cir. 1996)
In re Bar Exam Class Action 752 So. 2d 159 (La. 2000).
In re Hatcher, 150 F.3d 631, 637 (7th Cir. 1998)
Cir. 2014)
Khalikv. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)
Louisiana v. Biden, 45 F.4th 841, 845 (5th Cir. 2022)
2017).
1997)
Riggs v. Myspace, Inc., 444 F. App’x 986 (9th Cir. 2011)
Torre v. Brickey, 278 F.3d 917, 919 (9th Cir.2002)
US. v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003)
• ■
II.
Entry ID: 6598636
19
2
9
2,8
19
2
5
5
2
2
2
3
2
20
19
3
2
2
3
6
9
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2
16
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20
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 5
Date Filed: 10/19/2023
DISTRICT COURTS
Acey v. Bob Evans Farms, Inc., CIVIL ACTION NO. 2:13-CV-04916, 910 (S.D.W. Va. Mar. 13, 2014)
(E.D.N.Y. 2017)
Ark. Teacher Ret. Sys. v. State St. Bank & Tr. Co., 512 F. Supp. 3d
196, 236 (D. Mass. 2020)
Catlin v. United States, 324 U. S. 229, 324 U. S. 233 (1945)
8, 2019)
Domen v. Vimeo, Inc., No. l:19-cv-08418, 2020 WL 217048, slip op.
at *13 (S.D.N.Y. Jan. 15, 2020)
e-ventures Worldwide, LLC v. Google, Inc.
2023)
Hall v. Twitter Inc. 20-cv-536-SE (D.N.H. May. 9, 2023)
Henderson v. Aria Resort & Casino Holdings, LLC, 2:21-cv-0280JAD-NJK, 7 (D. Nev. May. 31, 2022)
Jones v. E. Okla. Radiation Therapy Assocs., L (N.D. Okla. Jul. 10,
2017), LC, Case No. 16-CV-150-JED-TLW, 3
Tocci v. Lembo, 92 N.E.2d 254, 256 (Mass. 1950)
2007)
YongLIv. Mass. Gen. Hosp., Civil Action No. 11-11557-JCB, 12 (D.
Mass. Oct. 23, 2014)
OTHER CITATIONS
H. Rep. No. 1453, 93d Cong., 2d Sess., 1974; U.S. Code Cong. Admin.
News p. 6355.
18U.S.C. §455
28 U.S.C. § 144
28 U.S.C. §631
42 U.S.C. § 1981
47 U.S.C. § 230
First Amendment of the United States Constitution
Fourteenth Amendment of the United States Constitution
Part I, Articles 22 and 32 of the New Hampshire Constitution,
■■
II.
Entry ID: 6598636
11
9
16
18
7
4
3,4
5
1
5
8
3
17
9
2
Passim
10, 17
15
1,5,8
Passim
Passim
11
Passim
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 6
Date Filed: 10/19/2023
Entry ID: 6598636
I. PRELIMINARY STATEMENT
On May 4, 2020, Hall filed his [D. 1] “Complaint”, asserting claims for (1)
racial discrimination in violation of Section 1981, (2) racial discrimination of
services of public accommodation in violation of Title II; and (3) “constitutional
violations” of his free speech, free expression, and free assembly rights under the
First Amendment of the United States Constitution and Part I, Articles 22 and 32 of
the New Hampshire Constitution, and his due process and equal protection rights
under both constitutions. Hall v. Twitter Inc. 20-cv-536-SE (D.N.H. May. 9, 2023).
The District Court’s (“Court”) [D. 139] “Order” and Post/pre-judgment
orders are fundamentally flawed as it applies allegations not contained within
Hall’s Complaint or motions, or otherwise is asking the wrong questions in order to
come to a predetermined result or preference of controlling law. Twitter’s
arguments and Reply Brief, “RB” suffers the same flaws. Both also mistakenly
claim that Section 230 provides immunity for all of Hall’s claims.
The facts alleged in Hall’s Complaint are sufficient to permit the court to
infer more than the mere possibility of discrimination. Ashcroft v. Iqbal, 129 S. Ct.
1950 (2009). A liberal construction means that the court will read the pleadings to
state a valid claim to the extent that it is possible to do so from the facts available.
A manifest error is one that amounts to a "wholesale disregard,
misapplication, or failure to recognize controlling precedent." Venegas-Hernandez
v. Sonolux Records, 370 F.3d 183, 195 (1st Cir. 2004) (defining manifest error as
an error "that is plain and indisputable, and that amounts to a complete disregard of
the controlling law").
II. REVIEW STANDARDS
This Court “review[s] de novo an order of dismissal for failure to state a
claim.” Hammond v. Kmart Corp., 733 F.3d 360, 362 (1st Cir. 2013). “We afford
Page 1 of 21
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EXHIBIT F
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Document: 00118064784
Page: 7
Date Filed: 10/19/2023
Entry ID: 6598636
de novo review to the district court's legal conclusions and clear-error review to its
findings of fact." Williams v. United States, 858 F.3d 708, 714 (1st Cir. 2017).
Whether the evidence presented under § 455(a) requires disqualification is a
question of law, which should be reviewed on appeal de novo. In re Hatcher, 150
F.3d 631, 637 (7th Cir. 1998); Hook v. McDade, 89 F.3d 350, 353-54 (7th Cir.
1996); "[d]rawing all inferences favorable to the honesty and care of the judge
whose conduct has been questioned, [as our present circuit standard does,] could
collapse the appearance of impropriety standard under § 455(a) into a demand for
proof of actual impropriety." In re United States, 158 F.3d 26, 36 n.8 (1st Cir.
1998). When "determining whether a judge's impartiality might reasonably be
questioned," the First Circuit follows the standard set forth in United States v.
Cowden, 545 F.2d 257, 265 (1st Cir. 1976) to objectively determine ((ft if there is a
reasonable factual basis for doubting the judge's impartiality . . . ." H. Rep. No.
1453, 93d Cong., 2d Sess., 1974; U.S. Code Cong. Admin. News p. 6355.
Because an order denying Rule 60(b) relief is generally considered a final
appealable order, FDIC v. Ramirez-Rivera, 869 F.2d 624, 626 (1st Cir. 1989), and
because subject matter jurisdiction is a question of law, review should be de novo
and not for an abuse of discretion. Skwira v. United States, 344 F.3d 64, 72 (1st Cir.
2003) (citing Valentin v. Hosp. Bella Vista, 254 F.3d 358, 365 (1st Cir. 2001)).
(“[A] decision whether or not a judgment is void under 60(b)(4) allows no room
for discretion. The review is de novo.").
Because Hall’s Rule 59 and Rule 60 motions require review of constitutional
claims, review is de novo as Hall’s claims are properly preserved. United States v.
Neto, 659 F.3d 194, 200 (1st Cir.2011).
Hall’s argues in his motion to strike that the Court errored in not applying
state law before applying the federal rules regarding attorney Schwartz’s acts.
Robidoux v. Muholland, 642 F.3d 20, 22 (1st Cir.2011) (“Choice of law
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EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 8
Date Filed: 10/19/2023
Entry ID: 6598636
determinations are questions of law, which we also review de novo.”); Torre v.
Brickey, 278 F.3d 917, 919 (9th Cir.2002). (“Whether state or federal law applies to
a particular issue in a diversity action is a question of law which we also review de
novo.”).
Complaint DOES NOT state that “Twitter acted pursuant to its own rules
and Terms of Service” as alleged in the RB. Twitter banned Sensa’s Twitter
account for “allegedly” violating Twitter rules.” [Doc. 1 ^ 18].
III. TWITTER’S DEFENSES
Twitter’s “VFC” is invalid as a defense in Claims I and II, as it acts as an
impermissible prospective waiver of federal and state statutory and Constitutional
rights. [D.l, U 13] (additional claims cleaned up). "[C]ourts will not lend their aid
to relieve parties from the results of their own illegal adventures." Toed v. Lembo,
92 N.E.2d 254, 256 (Mass. 1950); United States v. Mardirosian, 602 F.3d 1, 7 (1st
Cir. 2010), (a contract provision cannot ratify illegal conduct).
Hall’s claims DO NOT arise from information provided by another
information content provider and therefore Section 230(c)(1) does not apply. See
47 U.S.C. § 230(c)(1); e.g., Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d
413, 418 (1st Cir. 2007); Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d
398, 409 (6th Cir. 2014). Section 230(c)(l)’s protections extend only to claims that
would hold a defendant liable for “information provided by another information
content provider.”47 U.S.C. § 230(c)(1) (emphasis added). A separate but related
question is whether a plaintiff bringing claims based on their own content is
“another information content provider” under Section 230(c)(1). Courts have
declined to apply Section 230(c)(1) to content created by a plaintiff, reasoning that
allowing Section 230(c)(1) to cover such content would render Section 230(c)(2)
superfluous, e.g., e-ventures Worldwide, LLC v. Google, Inc., No. 2:14-cv-646FtM-PAM-CM, 2017 WL 2210029, at *3 (M.D. FI. Feb. 8, 2017) (declining to
Page 3 of 21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 9
Date Filed: 10/19/2023
Entry ID: 6598636
apply Section 230(c)(1) to unfair competition claims based on Google’s removal of
plaintiff’s advertising material). Hall’s cause of action seeks to hold Twitter liable
for its own conduct, and conduct as a state or “federal actor” rather than for thirdparty content, and thus Twitter is not being treated as a publisher or speaker.
§230(c)(1) does not provide immunity for its own discrimination “acts and
omissions.” Doe v. Facebook, Inc. 142 S. Ct. 1087 (2022).
Section 230(c)(1) applies to claims for content that is “left up,” while
Section 230(c)(2) applies to claims for content that is “taken down.”[l] In practice,
however, courts have also applied Section 230(c)(1) to “take down” claims, and
courts sometimes collapse Section 230’s two provisions into a single liability
shield or do not distinguish between the two provisions. [2] A defendant’s chosen
statutory basis for immunity under Section 230 is consequential: Section 230(c)(2)
includes a good faith requirement absent from Section 230(c)(1), while Section
230(c)(1) is limited to claims based on another’s content.[3]
Because Hall’s Claims I and II DO NOT treat Twitter as a publisher under
230(c)(1), but seek to hold Twitter liable for engaging in discrimination and
publishing are not elements of these claims and because Twitter concedes that
[1] E.g., Doe v. GTE Corp. 347 F.3d 655, 659 (7th Cir. 2003); cf. Malwarebytes, Inc. v. Enigma
Software Grp. USA, LLC, 141 S. Ct. 13, 15 (Thomas, J., statement respecting the denial of
certiorari) (articulating this view of Section 230 before positing that “[t]his modest understanding
is a far cry from what has prevailed in court”).
[2] E.g., Domen v. Vimeo, Inc., No. l:19-cv-08418, 2020 WL 217048, slip op. at *13 (S.D.N.Y.
Jan. 15, 2020) (holding that 230(c)(1) and (2) both provided immunity for claims arising from
video hosting provider’s decision to remove content); Malwarebytes, 141 S. Ct. at 17 (Thomas,
J., statement respecting the denial of certiorari) (collecting cases); Riggs v. Myspace, Inc., 444 F.
App’x 986 (9th Cir. 2011) (analyzing a social media website’s decision to delete user profiles
under 230(c)(1)).
[3] A separate but related question is whether a plaintiff bringing claims based on their own
content is “another information content provider” under Section 230(c)(1). Courts have declined
to apply Section 230(c)(1) to content created by a plaintiff, reasoning that allowing Section
230(c)(1) to cover such content would render Section 230(c)(2) superfluous. See e.g., e-ventures
(declining to apply Section 230(c)(1) to unfair competition claims based on Google’s removal of
plaintiff’s advertising material).
Page 4 of 21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 10
Date Filed: 10/19/2023
Entry ID: 6598636
subdivision 230(c)(2)(A) do not bar Hall’s claims, 230 cannot defend Twitter’s
discriminatory acts, or acts on behalf of Congress.
Hall has argued that Twitter’s First Amendment rights do not apply to claim
III, as Twitter was acting as a state actor when it suppressed his tweets and severed
his contract. [D. 13.1, | 26, 38]; [D. 6-1, ^ 29, Motion to Declare Twitter a State
actor].
IV. THE COURT ERRORED IN DISMISSING HALL’S COMPLAINT
Hall has set forth ‘factual allegations, either direct or inferential, respecting
each material element necessary to sustain recovery under some actionable legal
theory. ’” Lemelson v. U.S. Bank Nat 7 Ass ’n, 721 F.3d 18, 21 (1st Cir.2013). Hall’s
claims are plausible which includes factual content that allows the court to draw
the reasonable inference that Twitter is liable for the misconduct alleged.
A. Claim I- Racial Discrimination in Violation of Section 1981
“Nothing in § 1981 requires that parties exhaust any administrative remedies
or fulfill any notice requirements before bringing a lawsuit. ” Henderson v. Aria
Resort & Casino Holdings, LLC, 2:21-cv-0280-JAD-NJK, 7 (D. Nev. May. 31,
2022). In considering a claim of discrimination under § 1981, the court applies the
same analytical framework as for a Title VII claim. Lipsett v. Univ. of P.R., 864
F.2d 881, 896 (1st Cir. 1988). "The burden of establishing a prima facie case of
disparate treatment is not onerous." Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); A § 1981 claim may be proven by either direct evidence
or the burden-shifting approach articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 972 (1973). (burden-shifting standard applies to suits under § 1981).
Glessner v. Chardan, LLC, CIVIL SAG-22-03333, 8 (D. Md. Jul. 5, 2023).
For the purpose of making the dismissal determination, a court must accept
all the well-pleaded factual allegations of the complaint as true, even if doubtful,
and must construe the allegations in the light most favorable to the plaintiff. Bell
Page 5 of 21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 11
Date Filed: 10/19/2023
Entry ID: 6598636
Atlantic Corp. v. Twombly :: 550 U.S. 555 (2007); Alvarado v.KOBTV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). Hall is not required to establish
a prima facie case in his Complaint in order to survive a motion to dismiss
under Fed. R. Civ. P. 12(b)(6). Khalikv. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012). However, analyzing the allegations of a complaint in light of the
elements of the alleged cause of action "help[s] to determine whether [the plaintiff]
has set forth a plausible claim." Id.
27.
The meaning of Hall’s plausible allegations that he “acted” or “behaved”
like “a white person,” because Twitter’s algorithms have the ability to identify
“users on race based information for its advertisers”, based upon their speech and
behaviors. [D. 13-1,
28-30]. Hall also alleges that he “acted, represented,
displayed, behaved and portrayed himself to be a white person”, with a picture of a
white man on each and every one of his 5,733 tweets. AOB at 5. See Below.
^
Senza Vergogna
5,733 TWwu
(^Efilt profllt^
Senza Vergogna
Deliberate Manipulation
Incredible Crimes of the Century
The goal of socialism is to change reality, not to represent it
#MA6A *MAGA2O20 * CryB at* esGoHome
[D. 1-2, Exhibit E]; [Algorithms are “going to ban., way of talking. [D. 1, ^[ 49]
First, Hall alleges that he is a member of a protected class. Second, Hall
alleges two harmless Tweets were censored and removed and that his contract was
severed by Twitter. Third, Hall claims that he was unable to use the services
offered at Twitter.com [D. 1, Tf 14] allegedly under the pretext of its “health
Page 6 of 21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 12
Date Filed: 10/19/2023
Entry ID: 6598636
policies”. Collymore v. Hassan Civil Action No. 18-11634-LTS (D. Mass. Jan. 8,
2019).
Circumstantial Evidence alleged in the Complaint includes, in part;
Twitter’s workforce has in the past utilized its algorithms [D. 1, 30] to
discriminate against over 600,000 predominantly white groups such as
republicans and conservatives, and lied about it publicly for years, [D. 1,
28] admitted it under pressure from Congress, and then secretly continued
the practice.
Twitter was aggressively taking action by limiting, locking or suspending
users’ contracts for reasons such as abuse, hate and white nationalism,
(White people) where actions were taken on 605,794 accounts Jan-June
2018, 612,563 accounts July-Dee 2018, and 1,254,226 accounts Jan-June
2019, [D. 1,| 24], then suddenly stopped the reporting account actions.
Twitter’s workforce demonstrates behaviors of lying to the public, compare;
“We do not shadow ban” Vijaya Gadde, legal counsel for Twitter. [D. 1, ^
33]; “claims [of banning conservative voices] are unfounded and false,"
Nick Pickles, a senior strategist. [D. 1, ]f 33]; To statements by CEO Dorsey,
“we haven’t been as forthright as we need to.” [D. 1, | 72]; Twitter
shadow banned 600,00 users, CEO Dorsey, “Correct” [D. 1, 35]. [D. 1,
38] (Twitter acknowledged that is had “shadow banned.”)
Twitter employees targeted conservatives and Russians, for removal by
writing and utilizing algorithms. [D. 1,
33]; Twitter’s workforce
demonstrates that discriminatory banning by Twitter is “a thing.” [D. 1, ^
29]; Build algorithms that demonstrate bias. [D. 1, 55] Banned accounts
based upon discriminatory factors. [D. 1, 50];
Twitter’s “health policies” promote and allow “White Hate” by allowing
blue check’ers to post derogatory and discriminatory speech to their
combined 50 million followers, which is hateful and promotes hate against
the race of white people. [D. 1, 40], [D. 1-1, Exhibit L]
Twitter continues to make its services available to and has not banned the
contracts or the benefits of a contract of similarly situated non-white users,
who are outside Sensa’s protected class, and continues to allow non-whites
to post racist divisive hashtags such as #KillWhites and #Whitegenocide and
Page 7 of 21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 13
Date Filed: 10/19/2023
to promote hate against the race of white people. [D. 1,
Exhibit M]
Entry ID: 6598636
41], [D. 1-1,
“similarly situated” non-white users were not disciplined to the severity of
Hall. [D. 1, It 41, 44, 45]; [D. 1-2, Exhibits N and O]
Twitter itself interjected race as one of the main reasons for updating and
changing its Health Policy specifically to track and discipline white
socialists, white separatists and white nationalists, with being white being
the common denominator, and thus, race had something to do with the
decision-making process. [D. 1, 47]
Twitter’s hateful conduct policy, shows that the company has explicitly
codified political views into its policies. [D. 1, ]f 65]; CEO Dorsey admits
“the people who build Twitter are biased.” [D. 1, 65];
Hall’s claim I alleges (1) he is within the protected class, [4] (Doc. 1 at
2,
139); (2) Twitter discriminated against him on the basis of his race; (3) the
discrimination implicated one or more of the activities listed in the statute,
including the right to make and enforce contracts." Hammond, at 362. Hall’s
§1981, Claim I plausibly alleges (1) intentional racial discrimination (2) that
caused a contractual injury. Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned
Media, 140 S. Ct. 1009, 1014 (2020).
Given Hall's light burden at this stage, and accepting all of his well-pleaded
factual allegations as true, the Court errored in applying the proper facts to the
proper standards of law and that Hall's pleading sufficiently alleges factual
allegations to state a plausible claim for racial discrimination under § 1981. Jones
v. E. Okla. Radiation Therapy Assocs., LLC, Case No. 16-CV-150-JED-TLW, 3
[4] 42 U.S.C. § 1981 prohibits racial discrimination against whites as well as nonwhites in the
making and enforcing of contracts. McDonald v. Santa Fe 17 Trail Transp. Co., All U.S. 273,
295 (1976) (Section 1981 explicitly applies to " all persons.” e. g., United States v. Wong Kim
Ark, 169 U.S. 649, 675-676 (1898).
Page 8 of 21
PETITIONER HALL'S
EXHIBIT F
Case: 23-1555
Document: 00118064784
Page: 14
Date Filed: 10/19/2023
Entry ID: 6598636
(N.D. Okla. Jul. 10, 2017), has shown “a sufficient nexus between the asserted
discrimination and some contractual right or relationship" Garrett v. Tandy
Corp., 295 F.3d 94, 98 (1st Cir. 2002), and has proffered evidence of “an impaired
contractual relationship.” Fong LI v. Mass. Gen. Hosp., Civil Action No. 1111557-JCB, 12 (D. Mass. Oct. 23, 2014); Domino's Pizza, Inc. v. McDonald, 546
*U.S. 470, 476 (2006), and that Twitter’s workforce was motivated by [the person's
state of mind]'" Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1359 (11th Cir. 1999), The Court’s dismissal of Count I should be reversed.
B. Claim II- Racial Discrimination in a Place of Public Accommodation in
Violation of 42 U.S.C. § 2000a.
The Court’s Order denying claim II cannot be sustained as it denied the
Complaint on the basis that Twitter’s “online social networking platform, is not a
public accommodation” and never reaches Hall’s allegations that (1) Twitter’s
facilities operated as public accommodations, [D.l, at Exhibit Q], and (2) Hall was
denied the services of a place of public accommodation.
42 U.S.C. § 2000a, “Title II” entitled Hall “to the full and equal enjoyment
of the goods, services, facilities, priv
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