If only, US District Court Judge Mark Wolf mused today, an official in Bill Galvin's office hadn't filed a complaint with Twitter last September about a tweet by failed Senate candidate Shiva Ayyadurai that alleged Galvin had ordered the destruction of one million ballots in the Republican primary that month.
But one of Galvin's aides did file a complaint, stating that the claim by Ayyadurai, who lost the primary, was bunk, and then the next day, the executive director of a national association of state elections officials filed a similar complaint. And even though Twitter ignored both complaints and kept the tweet in question up, those two form complaints may have started a chain of events that now has a federal judge in Boston considering whether "state actors" either forced Twitter to go after an alleged enemy or Twitter was a willing participant in a conspiracy to help bring him down by deactivating his account several months later, and not just because the company had adopted new policies after Jan. 6 to try to cut down on election-conspiracy blather.
As a private company, Twitter is not normally subject to First Amendment complaints, but Ayyadurai had made a "plausible" case that Galvin official Michelle Tassinari and National Association of State Elections Directors Executive Director Amy Cohen had managed to drag Twitter into the whole affair through their complaints, submitted via Twitter forms, and that this might have been enough to make the case that Twitter was no longer simply a private company but had itself become, essentially an agent of the state and so subject to the First Amendment, Wolf said. Had they simply responded to Ayyadurai's tweet with rebuttal tweets of their own, that would have been the end of things, he said.
Finding the case "plausible" does not mean Wolf necessarily thinks Ayyadurai has proven his case, just that he has shown enough of a case to keep going, however. Wolf said he is inclined to agree with the state that its officials have "qualified immunity" against such a suit under the 11th Amendment. And Wolf could still decide to grant a request by the state Attorney General's office to simply dismiss Ayyadurai's suit.
Since he originally filed his suit in October, Ayyadurai has shifted from a demand to overturn the Sept. 1 primary results to a demand that Twitter give him his Twitter account back - and he is trying to add Twitter to the case here, even though the company's user terms require any suits against it to be filed in San Francisco. Ayyadurai has accompanied this with an increasingly expansive claim: Where at first he alleged Galvin used his influence at Twitter to delete his Tweets in the fall, at today's hearing, which extended across five hours, and which will continue tomorrow, Ayyadurai said that Tassinari, Cohen and "Twitter Legal" are, in fact, engagged in a full-blown RICO conspiracy that went so far to import censoring software from the "British Commonwealth," which he thought he had escaped when his parents fled India when he was a child but which is obviously aimed at personally destroying "a low-caste dark-skinned guy like me."
Wolf, who cautioned Ayyadurai to stop with the polemics when addressing legal issues, indicated at several points he wants to let the case continue to the point where both sides do "discovery" - a potentially lengthy pre-trial process involving depositions of potential witnesses and dredging through massive amounts of paperwork.
Wolf also urged Ayyadurai, more than once, to consider hiring a lawyer rather than continuing to press the case on his own. Discovery, he told him, is particularly tricky legally and needs a skilled legal hand. Ayyadurai said he would hire a lawyer, then asked Wolf if he could immediately order Twitter to reinstate his account so he could raise money, because Twitter was the main way he had been raising money before his online cancellation and it would help him hire a lawyer.
Wolf rejected that request. Court records show Ayyadurai started his case with a lawyer, Daniel Casieri of Plymouth, but that Ayyadurai fired him on Oct. 27, a week after Casieri filed the initial complaint in the case, and several months before Twitter terminated his account.
Assistant US Attorney Adam Hornstine and attorneys for the elections group and Twitter stressed the several months that had passed between the time the complaints were filed - and ignored - and the time in early February when Twitter, using a post-1/6 policy and a "five strikes" policy, determined that Ayyadurai's repeated tweets about alleged election fraud in Massachusetts warranted his permanent banning, which, they said, proved there was not concerted effort by the state to attack Ayyadurai. In its own filings, Twitter denied it had set up a filter system specifically to look for tweets that mention Tassinari.