United States Court of Appeals for the First Circuit

Daniel E. Hall, a/k/a Sensa Verogna, )

Plaintiff, Appellant, ) Case No. 23-1555
v. )
) APPELLANT’S MOTION
Twitter, Inc., ) FOR JUDICIAL
Defendant, Appellee ) NOTICE II
____________________________________

APPELLANT’S MOTION FOR JUDICIAL NOTICE II

Respectfully, Appellant Daniel E. "Hall", moves this Court under Fed. R. Evid.
201[f], to judicially notice public court records and adjudicative facts which are facts
relevant to the adjudication of the controversy regarding Magistrate Judge Johnstone's
"illegal pro hac vice policy" and the existence of a "Commission" to reappoint Judge
Johnstone to another term, to which Judge Elliott was a member, which are specific to
both parties before the court, to which are contained within prior briefs and replies to
the District Court this Appeals Court relevant to Hall's appeal arguments regarding
recusal of the trial judge, and the unconstitutionality of the trial court proceedings.
Judicial Notice for the First Time on Appeal.
1. Under Fed. R. Evid. 201[f], judicial notice of adjudicative facts may be taken at
any stage of the proceedings, including on appeal. In practice, appellate courts
frequently take judicial notice of both adjudicative and legislative facts presented for the
first time on appeal, whether requested by a party or on their own initiative. See, e.g.,
Hotel Employees & Rest. Employees Union, Local 100 of New York, N.Y. & Vicinity,
AFL-CIO v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534, 540 n.1 [2d
Cir. 2002]; In re Indian Palms Assoc. Ltd ., 61 F.3d 197, 205 [3d Cir. 1995].
2. Rule 201 of the Federal Rules of Evidence sets forth the basic standards for
judicial notice of “adjudicative facts,” which are facts relevant to the adjudication of the
particular controversy and specific parties before the court. Rule 201[b] allows judicial
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notice of adjudicative facts that are “not subject to reasonable dispute” because they
are “generally known” or are “capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.” Whether requesting or
opposing judicial notice, litigants have a right to be heard on the issue under Rule 201[e].
Judicial Notice of Publicly Recorded Documents
3. Hall respectfully ask the court to take judicial notice of the following publicly
recorded documents which are `capable of immediate and accurate determination by
resort to easily accessible sources of indisputable accuracy.' See Uniform Rule of
Evidence 9(2)(d) (1965). See also McCormick on Evidence, § 325 at 691 (1954); 4
Barron Federal Practice Procedure, Criminal, § 2153, page 171 (Wright Cum. Supp.
1964); IX Wigmore on Evidence, § 2571 at page 548 (3rd ed. 1940)." Id., 258 F. Supp.
at 978. See also, Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994)
(collecting cases)” Boateng v. Interamerican Univ. Inc., 210 F.3d 56, 60 (1st Cir. 2000)
“a court ordinarily may treat documents from prior state court adjudications as public
records. See In re Nosek, 363 B.R. 643, 646 n.2 (Bankr. D. Mass. 2007) taking judicial
notice of opening briefs and replies to the District Court, and cited as such; public
records of which the court can take judicial notice. Wenzel v. Sand Canyon Corp. 841
F. Supp. 2d 463 (D. Mass. 2012). Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th
Cir. 2012) (explaining that courts may properly take judicial notice of “documents on
file in federal or state courts”). R.S. Coppola Tr. - Oct. 19, 1995 v. Nat'l Default Servs.,
3:21-cv-00281-MMD-CSD, 2-3 (D. Nev. Jul. 13, 2022); See Dowers v. Nationstar
Mortg., LLC, 852 F.3d 964, 967 n.1 (9th Cir. 2017) (taking judicial notice of “publicly-
recorded documents").
4. In contrast, judicial notice under Federal Rule of Evidence 201 (“Rule 201”)
permits a court to take judicial notice of undisputed facts in matters of public
record. Khoja,899 F.3d at 999.

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A court may take judicial notice of an adjudicative fact that is ‘“not subject to
reasonable dispute' if it is ‘generally known,' or ‘can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.'” Id. (quoting FED. R.
EVID. 201 (b)(1)-(2)). A court is limited to taking judicial notice only of undisputed
matters in public records. Lee,250 F.3d at 689-90. “When a court takes judicial notice
of a public record, ‘it may do so not for the truth of the facts recited therein, but for
the existence of the [record], which is not subject to reasonable dispute over its
authenticity.'” Vesta Corp. v. Amdocs Mgmt. Ltd.,129 F.Supp.3d 1012, 1021 (D. Or. 2015)
(quoting Kleinv. Freedom Strategic Partners, LLC,595 F.Supp.2d 1152, 1157 (D. Nev. 2009)
(quoting Lee,250 F.3d at 690) (alteration in original)). Good George LLC v. The Cincinnati
Ins. Co., 3:20-cv-01705-AC, 6 (D. Or. Nov. 15, 2021).
DORSEY TESTIMONY
5. It is within a public document submitted in testimony of Jack Dorsey, Chief
Executive Officer of Twitter, Inc. on September 5, 2018 before the Energy and
Commerce Committee. The prepared statement of Mr. Dorsey [D. 1-1 Exhibit Q-1, P.
27] states, in part, that;

[Twitter] "does not shadowban anyone based on political ideology." [D. 1-1
Exhibit Q-1, P. 1]

"The behavioral ranking that Twitter utilizes does not consider in any way
political views or ideology. It focuses solely on the behavior of all accounts." [D.
1-1 Exhibit Q-1, P. 6]

"The threat we face requires extensive partnership and collaboration with our
government partners and industry peers." [D. 1-1 Exhibit Q-1, P. 6]

"We must continue to work together with our elected officials, government
partners" [D. 1-1 Exhibit Q-1, P. 9]

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 "We continue to work with our law enforcement partners on this
investigation." [D. 1-1 Exhibit Q-1, P. 10]

6. Further testimony by Jack Dorsey, in part, includes the following statements;

"We don't consider political viewpoints, perspectives, or party affiliation in any

of our policies or enforcement decisions, period." [D. 1-1 Exhibit Q-2 P. 23]

"We believe many people use Twitter as a digital public square."[D. 1-1 Exhibit
Q-2 P. 23]

"It's important Twitter distinguishes between people's opinions and their

behaviors and disarms behavior intending to silence another person or
adversely interfere with their universal human rights." [D. 1-1 Exhibit Q-2 P.
24]

Answers "no" to shadow banning prominent Republicans. [D. 1-1 Exhibit Q-2
P. 56]

Answered "Correct" when asked by Mr. Doyle if "You [Twitter] shadow banned
600,000 people across your entire platform across the globe who had people
following them that had certain behaviors that caused you to downgrade them
coming up." [D. 1-1 Exhibit Q-2 P. 57]

Answered "Correct" when asked by Mr. Doyle if "Twitter undertook no behavior

to selectively censor conservative Republicans or conservative voices on your
platform." [D. 1-1 Exhibit Q-2 P. 58]

"Our policies and our algorithms don't take into consideration any affiliation
philosophy or viewpoint." [D. 1-1 Exhibit Q-2 P. 63]

"And in terms of our data business" [D. 1-1 Exhibit Q-2 P. 65]

"The signal that we were using caught people up in it and it was a signal that we
determined was not relevant and also not fair in this particular case. [D. 1-1
Exhibit Q- 2 P. 71]
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"That is not the intention and they should never be ejecting people." [D. 1-1
Exhibit Q-2 P. 72]

"We are committing to making it our number-one priority to help protect the
integrity of the 2018 mid-terms and especially the conversation around it."
[D. 1-1 Exhibit Q-2 P. 77, 111]

"Advertisers are able to build criteria that include and exclude folks." [D. 1-1
Exhibit Q-2 P. 97]

Answered "perhaps" when asked by Mr. McNerney asked if (advertisers building

criteria may) "end up being discriminatory?" [D. 1-1 Exhibit Q-2 P. 97] and if
"advertisers (are) able to exclude certain categories of users on Twitter, which
would be discriminatory? Mr. McNerney. [D. 1-1 Exhibit Q-2 P. 96]

When asked by Mr. Loebsack, "And will you commit to publishing a discreet
review with outside organizations to help evaluate what more Twitter can be
doing to protect our kids? Mr. Dorsey answered "We haven't yet, but we will
certainly work with our partners to consider this." [D. 1-1 Exhibit Q-2 P. 121-
122]

"It enables us to look at the content and look for abuse and take enforcement
actions against them accordingly." [D. 1-1 Exhibit Q-2 P. 121-122]

"First, we are opening portals that allow partners and journalists to report
anything suspicious that they see so that we can take much faster action."
[D. 1-1 Exhibit Q-2 P. 166]

"we have a much stronger partnership with law enforcement and federal law
enforcement to make sure that we are getting a regular cadence of meetings" [D.
1-1 Exhibit Q-2 P. 166]

Twitter's revenue comes from selling advertising on the platform, right?

"Correct" Mr. Dorsey. [D. 1-1 Exhibit Q-2 P. 166]

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"increasing the health of the public square that we are hosting." [D. 1-1 Exhibit
Q-2 P. 169]

"So we are looking at behaviors and that number." [D. 1-1 Exhibit Q-2 P. 174]

"We do -- we do have partnerships with local enforcement and law enforcement

agencies all over the world and we do inform them as necessary. Mr. Dorsey [D.
1-1 Exhibit Q-2 P. 182]

CONGRESSIONAL TESTIMONY
"I believe you (Jack Dorsey) were once temporarily suspended from Twitter due
to an internal error yourself." Hon. Greg Walden [D. 1-1 Exhibit Q-2, P. 17]

"We hope you can help us better understand how Twitter decides when to
suspend a user or ban them from the service 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].

"Far too many Twitter users still face bullying and trolling attacks." Mr. Pallone
[D. 1-1 Exhibit Q-2 P. 19]

"According to a recent study published by the MIT Media Lab, false rumors on
Twitter traveled, and I quote, "farther, faster, deeper, and more broadly than
the truth, with true claims taking about six times as long to reach the same
number of people," and that's dangerous. Mr. Pallone [D. 1-1 Exhibit Q-2 P.
20]

"Unfortunately, the actions of President Trump have made the situation worse.
Repeatedly, the president 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]

"foster discord, and the president's actions coarsen the public debate and feed
distrust within our society." Mr. Pallone [D. 1-1 Exhibit Q-2 P. 20]

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"must do more to regain and maintain the public trust. Bullying, the spread of
disinformation and malicious foreign influence." Mr. Pallone [D. 1-1 Exhibit Q-
2 P. 21]

"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]

"Twitter and other social media platforms must establish clear policies to address
the problems discussed today, 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. 21-22]

"Twitter's public response is, and I quote, "We do not shadow ban." Mr. Pallone
[D. 1-1 Exhibit Q-2 P. 28]

"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. 32-33]

"But we have to make sure that the enforcement mechanism is there so that's
true." Mr. Pallone [D. 1-1 Exhibit Q-2 P. 34]

"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]

"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]

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"Twitter's business model is based on advertising and you serve targeted
advertising to users based on vast amounts of data that you collect." Mr. Castor
[D. 1-1 Exhibit Q-2 P. 84]

"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]

"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]

"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]

"it's already been admitted that Twitter has got bias in your algorithms because
you have acknowledged that and you have tried to correct it. Mr. Johnson. [D.
1-1 Exhibit Q-2 P. 154]

"what are you going to do to make sure that the election is not in some way
governments in an inappropriate way?" Ms. Schakowsky. [D. 1-1 Exhibit Q-2 P.
165]

"This is an oversight hearing. We are not trying to legislate. Mr. Flores. [D. 1-1
Exhibit Q-2 P. 174]

"public safety" Mrs. Brooks. [D. 1-1 Exhibit Q-2 P. 184]

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7. On Apr 11, 2019, in an interview by Kara Swisher, Recode Decode US House
Speaker Nancy Pelosi made the following statements:

"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.”

“I know there could be some clear lines that we see in our community, of
companies that maybe could be easily broken up without having any impact, one
on the other,” she said. “I’m a big believer in the antitrust laws, I think that’s
very important for us to have them and to use them, and to subject those who
should be subjected to it. I don’t know how all of these should be painted with
the same brush, but I think that’s a look that should be taken.”

https://www.vox.com/podcasts/2019/4/11/18306834/nancy-pelosi-speaker-house-
tech-regulation-antitrust-230-immunity-kara-swisher-decode-podcast

8. Judicially notice that on Wednesday, June 19, 2019, Senator Josh Hawley
published the following statements on his website at
https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-
section-230-immunity-big-tech-companies

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 "Today U.S. Senator Josh Hawley (R-Mo.) introduced the Ending Support for
Internet Censorship Act, a major update to the way big tech companies are
treated under Section 230 of the Communications Decency Act(CDA)."

"Sen. Hawley’s legislation removes the immunity big tech companies receive
under Section 230 unless they submit to an external audit that proves by clear
and convincing evidence that their algorithms and content-removal practices are
politically neutral. Sen. Hawley’s legislation does not apply to small and medium-
sized tech companies."

“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,” said Senator Hawley.
“Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the
bargain."

“There’s a growing list of evidence that shows big tech companies

making editorial decisions to censor viewpoints they disagree with. Even worse,
the entire process is shrouded in secrecy because these companies refuse to make
their protocols public. This legislation simply states that if the tech giants want
to keep their government-granted immunity, they must bring transparency and
accountability to their editorial processes and prove that they don’t discriminate.”

9. On November 1, 2019, U.S. Senator. Ted Cruz (R-Texas), member of the Senate
Judiciary Committee, sent a letter to Ambassador Lighthizer, as reported by Politico,
[12] 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."

And further stating that:

"With members of both the Senate and House of Representatives seriously

considering whether to amend or eliminate Section 230' s grant of immunity

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 because big tech is not living up to its end of the legislative bargain, I believe that
enshrining it in the Agreement would be a mistake."

"Big tech companies have become some of the most powerful censors the world
has ever seen. They routinely censor lawful---0verwhelmingly conservative-
speech with which they disagree."
_______________
[12] https://www.politico.com/news/2019/11/01/ted-cruz-online-liability-trade-
deals-063911

CONCLUSION

For the aforementioned reasons, Halls' Motion should be granted, and the Court should

take judicial notice of the publicly-recorded documents and undisputed material facts

contained within these documents and statements which preserves Twitter's on the

record responses to shadow banning and the entwined relationship Congress has with

Twitter and supports Hall's theory that Twitter was, within Hall's Complaint, a state

actor.

Respectfully,
/s/ Daniel E. Hall
Plaintiff, Appellant
Pro Se

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT

This document complies with Fed. R. App. P. 27(d)(2)(A) because this document
contains no more than 5,200 words.

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 CERTIFICATE OF SERVICE
I certify that on August 28, 2023, I served the foregoing Motion upon the Defendant,
through its attorney of record to Demetrio F. Aspiras, counsel of record via the Court’s
electronic filing system.
/s/ Daniel E. Hall

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