Petition for Writ of Certiorari — In Re Daniel E. Hall, Petitioner

Supreme Court briefNov 7, 2024

Ask Donna

What actually matters in this document.

Text

r~

No.

3tt ttje Supreme Court of tfje ®ntteb 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 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.

Page 3 of 40

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.

Page 4 of 40

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

Page 5 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 17

Date Filed: 08/30/2023

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].

Page 6 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 18

Date Filed: 08/30/2023

Entry ID: 6588352

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'.

Page 7 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 19

Date Filed: 08/30/2023

Entry ID: 6588352

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],

Page 8 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

17.

Document: 00118046219

Page: 20

Date Filed: 08/30/2023

Entry ID: 6588352

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].

Page 9 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

18.

Document: 00118046219

Page: 21

Date Filed: 08/30/2023

Entry ID: 6588352

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,

Page 10 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 22

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).

Page 11 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 23

Date Filed: 08/30/2023

Entry ID: 6588352

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];

Page 12 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 24

Date Filed: 08/30/2023

Entry ID: 6588352

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]

Page 13 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 25

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 14 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 26

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 15 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 27

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 16 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 28

Date Filed: 08/30/2023

Entry ID: 6588352

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."

Page 17 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 29

Date Filed: 08/30/2023

Entry ID: 6588352

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]

Page 18 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 30

Date Filed: 08/30/2023

Entry ID: 6588352

(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

Page 19 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

48.

Document: 00118046219

Page: 31

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 20 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 32

Date Filed: 08/30/2023

Entry ID: 6588352

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.

Page 21 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 33

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 22 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 34

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 23 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 35

Date Filed: 08/30/2023

Entry ID: 6588352

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].

Page 24 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 36

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 25 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 37

Date Filed: 08/30/2023

Entry ID: 6588352

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],

Page 26 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

68.

Document: 00118046219

Page: 38

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 28 of 40

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

Page 29 of 40

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.

Page 30 of 40

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

Page 31 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 43

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.

Page 32 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 44

Date Filed: 08/30/2023

Entry ID: 6588352

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

Page 33 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 45

Date Filed: 08/30/2023

Entry ID: 6588352

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).

Page 34 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

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

Page 35 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 47

Date Filed: 08/30/2023

Entry ID: 6588352

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)).

Page 36 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

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

Page 37 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 49

Date Filed: 08/30/2023

Entry ID: 6588352

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]

Page 38 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

Document: 00118046219

Page: 50

Date Filed: 08/30/2023

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

Page 39 of 40

PETITIONER HALL'S

EXHIBIT E

Case: 23-1555

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

Page 40 of 40

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

9

11

15

15

15

17

18

18

18

19

20

21

,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

4

2

16

2

3

5

10

10

11

4

3

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

PETITIONER HALL'S

EXHIBIT F

Case: 23-1555

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

Page 2 of 21

PETITIONER HALL'S

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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.