Verogna v. Twitter Inc.
Filing
139
///ORDER granting 3 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Samantha D. Elliott.(vln)
Case 1:20-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.
O R D E R
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
Case 1:20-cv-00536-SE Document 139 Filed 05/09/23 Page 2 of 13
relief that is plausible on its face.”1 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,
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).
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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!!!
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.
2
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Doc. no. 1, ¶ 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, ¶ 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.
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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,
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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.
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.
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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 that 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,
¶¶ 141, 147. Twitter argues that Hall fails to allege any basis
for racial discrimination.
Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same right in
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.
4
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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, ¶ 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.
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).
5
In his objection, Hall notes that his Twitter account
displayed a picture of a white man. Doc. no. 13-2, ¶ 28. It is
unclear if Hall himself is displayed in the picture.
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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
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violation of the Civil Rights Act of 1964, § 2000a, as well as
New Hampshire’s Law Against Discrimination, New Hampshire
Revised Statute Annotated (“RSA”) 354-A:17. At the outset,
Hall’s racial discrimination claims in Count II suffer from the
same failure as his racial discrimination claim in Count I: he
fails to allege that Twitter suspended his account because he is
white.
Hall’s claims in Count II fail for an additional reason, as
Twitter argues in its motion to dismiss: both the Civil Rights
Act of 1964 and RSA 354-A:17 prohibit racial discrimination in
places of “public accommodation.” See, e.g., Selden v. Airbnb,
Inc., 4 F.4th 148, 154 (D.C. Cir. 2021) (“Title II of the Civil
Rights Act of 1964 . . . (codified at 42 U.S.C. § 2000a) . . .
prohibits discrimination on the basis of race in public
accommodations.”); Brady v. Weeks Med. Ctr., No. 19-cv-655-SM,
2019 WL 6529870, at *4 (D.N.H. Nov. 12, 2019) (stating New
Hampshire’s Law Against Discrimination, RSA 354-A:17, protects
the right of every individual to have equal access to places of
public accommodation and prohibits discriminatory practices
based on race). Companies, including Twitter, that provide only
online services, however, are not places of public accommodation
for the purposes of Title II of the Civil Rights Act of 1964, §
2000a. See, e.g., Lewis v. Google LLC, 851 F. App’x 723, 724
(9th Cir. 2021), cert. denied, 142 S. Ct. 434 (2021); Elansari
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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 – Violation of State and Federal Constitutional
Rights
Hall alleges that Twitter suspended his account because of
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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.g., 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).
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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.
______________________________
Samantha D. Elliott
United States District Judge
May 9, 2023
cc: Daniel E. Hall, pro se.
Counsel of record.
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