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 III
____________________________________

PLAINTIFF-APPELLANT’S RULE 10(e) MOTION

TO CORRECT OR MODIFY THE RECORD

Respectfully, Appellant Daniel E. "Hall", moves this Court under Fed. Rule
App. Proc. 10(e), (“Rule”) to correct or modify the record. And although some of
these facts do overlap previous motions, these arguments are indistinguishable, from
previous motions to this Appeals Court. [1] Additionally, this motion will give
Twitter an opportunity to be heard on the matter of a correction or modification of
the record versus judicially noticing Elon Musk’s public statements he made 20 days
ago, which misrepresent or conflict with the current record.[2]
1. On October 31, 2023, Elon “Musk”, owner of Twitter, (now known as X)
appeared on Joe Rogan’s podcast and made public statements regarding the “old
Twitter” being and “arm of the government” and a “state publication” and
oppressed the views of “people on the right” and that [Twitter] was
_______________
[1] See Hall’s Motion for Judicial Notice III, (Dkt. 00118070078, filed November 2, 2023), and
Reply also filed on this day.
[2] [T]he court liberally construes pro se pleadings, however inartfully pleaded. See Erickson v.
Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200 (2007) (following Estelle v. Gamble, 429 U.S. 97,
106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se pleadings
liberally in favor of the pro se party). See also Castro v. United States, 540 U.S. 375, 381 (2003)
(noting that courts may construe pro se pleadings so as to avoid inappropriately stringent rules and
unnecessary dismissals of claims). "The policy behind affording pro se [petitioners] liberal
interpretation is that if they present sufficient facts, the court may intuit the correct cause of action,
even if it was imperfectly pled." Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997); Doyle
v. State Civil No. 08-cv-361-PB (D.N.H. Feb. 25, 2009).

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“fundamentally controlled by the far left” and that “zero” far left Twitter users
have been banned or suspended by Twitter, and within the times of Hall’s [D. 1]
Complaint.
2. These statements cut right to the heart of Hall’s Claim I and II allegations that
Twitter’s “workforce” discriminated against him because he was white and behaving
white, and that Twitter’s “Health Policy” was simply a pretext to the racial
discrimination, because non-whites were treated differently than Hall. These
statements also support Hall’s Claim III allegations that Twitter acted and was a state
actor within the times of Hall’s complaints.
3. Most egregiously, these statements give significant weight to Hall’s claims of
continuous omissions and misrepresentations by Twitter throughout the case that is
was not a state actor and it’s omission of the favors it had received over the years
from the District Court, and throughout Hall’s case.
Fed. Rule App. Proc. 10(e)
4. Pertinent here, Fed. Rule App. Proc. 10(e) allows correction or modification
of the record “If anything material to either party is omitted from or misstated in the
record by error or accident, the omission or misstatement may be corrected and a
supplemental record may be certified and forwarded.” [3] “by the court of appeals”
[4], and also provides that “All other questions as to the form and content of the
record must be presented to the court of appeals.” [5]
5. Rule 10(e) does not restrict or require that Hall submit this motion prior to any
appeal which has been submitted to a panel. Nor does it require the existence of any
“extraordinary circumstances.” In fact, the Rule allows for these type of content
issues be presented to this Court.
_________________________
[3] Fed. Rule App. Proc.10(e)(2).
[4] Fed. Rule App. Proc.10(e)(2)(C).
[5] Fed. Rule App. Proc.10(e)(3).
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Correction or Modification of the Record in This Case

6. Twitter readily admits that this Court is not entirely bound by the record
below, as long as the fact(s), (1) are generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned. See Pietrangelo v. Sununu, 15
F.4th 103, 106 n.1 (1st Cir. 2021) (cleaned up).
7. On October 31, 2023, Musk, owner of Twitter, (now known as X) appeared
on Joe Rogan’s podcast and made the following public statements.[1]
“The degree to which Twitter was simply an arm of the government
was not well understood by the public”, “It was like Pravda, basically,”
“a state publication is the way to think of the old Twitter, a state
publication" [[1], at 42:57].

Musk went on to claim that the "old" version of the social platform
would not only oppress views considered "far-right," but also some
that may be considered "middle of the road" or "mildly right." [Id, at
43:40].

"Republicans were suppressed 10 times the rate of Democrats,"

Musk added. "Now, that's because old Twitter was fundamentally
controlled by the far left. It was like, completely controlled by the
far left." [Id, at 43:51].

“How many people from the far left have actually been suspended
or banned from Twitter, now X, zero.” [Id. at 47:00]

8. This Court, or anyone with internet can access can watch Musk’s statements
which have not, in any substantial way, been disputed by Twitter in its Reply. These
statements are also capable of immediate and accurate determination under the
standards of Pietrangelo v. Sununu, 15 F.4th 103, 106 n.1 (1st Cir. 2021) (cleaned
up), and Fed. R. Evid. 201(b), as anyone with internet access can watch and hear
these statements come out of his mouth. Other than objecting with the single word

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of “allegedly” Twitter does not dispute the source or dispute the accuracy of these
statements which came out of the mouth of Musk at
https://twitter.com/Dexerto/status/1719442164113908210 or directly from Joe
Rogan’s site at https://open.spotify.com/episode/2aB2swgyXqbFA06AxPlFmr
and from many other websites playing the podcast, and from those who have written
about it after watching the podcast or video for themselves.
Standards
9. Musk’s statements of admissions are an exception under the hearsay rules,
and are an admission by a party opponent, as they were made by Twitter’s owner
who is authorized to make such statements, which is believed to be true by Musk
and admissible under Fed.R.Evid. 801(d)(2)(A), (B) and (C). Musk’s statements are
admissible as statements against interest under Fed.R.Evid. 804(b)(3)(A) and (B), as
they are so far contrary to the Musk's pecuniary or proprietary interest, and so far
tend to subject him or Twitter to civil liability. . . that a reasonable man in his position
would not have made the statement[s] unless he believed [them] to be true." See
Pino v. Protection Maritime Insurance, 599 F.2d 10, 13 (1st Cir. 1979).[6]
10. Musk’s admissions conflict with Twitter’s prior statements to the District
Court that “Twitter cannot be a state actor,” [D. 3-1, P. 21], is “not a state actor” [D.
21, P. 8], “Plaintiff cannot overcome the necessity of state action, as Twitter is a
private company”, and elsewhere within the docket, and to this Appeals Court that,
“X Corp. is a private company, not a state actor, and was not acting as a state actor
__________________________
[6] In United States law, a declaration (or statement) against interest is an exception
to the rule on hearsay in which a person's statement may be used, where generally
the content of the statement is so prejudicial to the person making it that they would
not have made the statement unless they believed the statement was true. For
example, if a driver in an automobile accident boasts publicly that they were
speeding, it may represent a legal admission of liability. The Federal Rules of
evidence limit the bases of prejudices to the declarant to tort and criminal liability.

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“[Appellee’s Reply Brief, # 00118057195, P. 2]; “X Corp. is not a state actor” [id.
P. 9]; “X Corp. is a private company, not a government or state actor.” [id. P. 22],
id, para 3, seriously conflict with Musk’s public statements and thus should be
corrected or modified in the record, as Twitter can no longer claim that is was not a
state actor within the time of Hall’s Complaint.
11. Also, Musk’s admissions conflict with Twitter’s prior statements to the
District Court that “Plaintiff has not and cannot state a claim for alleged
discrimination or violation of his constitutional rights”, [D. 3, P. 11], and “Twitter
transparently communicated to Plaintiff its suspension decisions. [D-3, P.2], as
Musk admits that Twitter, oppressed the views of “people on the right”, and was
“fundamentally controlled by the far left” , and that “zero” far left Twitter users
have been banned. These statements cut right to the heart of Hall’s Claim I and II
allegations that Twitter’s “workforce” discriminated against him because he was
white and behaving white, and that Twitter’s “Health Policy” was simply a pretext
to the racial discrimination, because non-whites were treated differently than Hall.
12. These admissions of Twitter’s discrimination of group which contains a
majority white people, and that these policies were not enforced equally for another
group, further support Hall’s Complaint and reinforces any plausible standard
requirement to which Ashcroft v. Iqbal 556 U.S. 662 (2009) requires.
13. In its Reply to Judicial Notice III, Twitter does not dispute the accuracy or
sources of Musk’s public statements of omission.
14. Hall certainly would have included Musk’s statements in his Complaint or
elsewhere throughout the proceedings, but these new statements are only 20 days
old, to which Hall could not have submitted to the District Court, as they were not
known to Hall, as they had never been spoken publicly and the District Court cut
short any discovery in the case.

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15. Of course, there may be cases in which a party can make an adequate showing
on appeal that he would have presented evidence in the district court that he did not
in fact know that Twitter’s owner believes that Twitter has in the past taken
discriminatory actions against users and acted, in Musk’s view, as a state actor. See
Fed. Rule App. Proc. 10(e). Thus, this provides a further basis to conclude that there
is a “reasonable probability” that the outcome would have been different absent these
statements and would overcome any so-called “frivolous” claims.
Conclusion
16. For the aforementioned reasons, it is appropriate here to modify or correct the
record to include Musk’s statements of admission regarding the “old” Twitter as they
were publicly made, cannot be reasonably disputed and, were made by Twitter’s
owner and have significant bearing to the adjudicative facts here, which all support
Hall’s allegations that Twitter’s workforce “health policies” were biased against
whites or a majority of whites, and in favor of non-whites, and therefore plausible
that Twitter acts were discriminatory against Hall and other whites, and that Twitter
was acting as an arm of the government and was a state actor. These statements
further substantiate Hall’s claims that the District Court, through its judges, were
biased in favor of Twitter. (because they all, Congress, the Court the Executive
Branch and Twitter are all government actors). These statements clearly appear to
be at odds with representations previously made by Twitter before the District Court
and this Appeals Court and weigh heavily upon the question of whether Twitter
should even be arguing that it did not use discriminatory practices against whites or
that it was not a state actor, when it’s owner believes that it did act discriminatory
against a majority of whites and was a state actor or state publication within the times
of Hall’s complaint.
17. If you combine Hall’s Judicial Notice I, of Magistrate Johnstone’s illegal
policy which provided 68 favors to Twitter and its attorneys, with the coercive
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statements by prominent Congress Members in Judicial Notice II, and the
Supplemental Authority of Biden v. Missouri :: 595 U.S. ___ (2022), which includes
coercion by the agencies in the Executive branch, and now Elon’s Musk’s statements
about his company being an arm of the government or a government actor or
publication, one can reasonably and easily picture Twitter as a “captured” corporate
entity or state actor through which Twitter was either rewarded by the Courts with
favorable opinions for censoring speech and omitting the favors given to it by the
Court, coerced or compelled by Congress using the monetary weight of Section
230’s immunity to compel the removal of “white nationalists” and create
discriminatory policies, and was then subjected to continuous coercive tactics used
by the Executive Branch to sensor speech, to which is was paid millions, you can
clearly see that Twitter is a “state actor” in numerous ways, in receiving either
immunity from Congress, special favors from the Courts, or millions from the
Executive branch.

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 November 20, 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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