A federal judge today formally dismissed most of repeat Senate loser Shiva Ayyadurai's increasingly conspiracy-drenched lawsuit against state elections officials and a national association of election officers, but kept alive what the judge considers the most interesting legal question of the suit: Whether Twitter colluded with those officials to permanently ban him from the platform, in possible violation of his First Amendment rights.
In a sometimes hostile hearing in which US District Court Judge Mark Wolf twice ordered Ayyadurai to shut up - once while pointing his index finger over the Zoom connection at the self described genius - the judge said he was dismissing the parts of Ayyadurai's suit that claimed the officials were guilty of RICO violations and that they owed him millions of dollars in damage. Wolf ruled the officials, including Secretary of State Bill Galvin, are protected from monetary demands by the legal concept of "qualified immunity." Ayyadurai initially sought more than $1 billion.
Instead, Wolf ordered Ayyadurai's lawyer to file a possible revised law suit focusing only on the First Amendment issue and the question of whether Twitter became a "state actor" by banning him - even if it was months after the state filed a single complaint about one of his tweets. Twitter has said it will fight any attempt to join it to the case, that it has its own First Amendment rights to decide what to allow on its platform - in this case to not allow right-wing conspiracists free rein to promote their theories after Jan. 6.
At the same time, Wolf raised the question of perjury and the Fifth Amendment to discuss what he considered possible wrong-doing by Ayyadurai, now on his third lawyer on the case, which he has also frequently handled by himself. Ayyadurai at first claimed the Secretary of State's office stole last September's Republican nomination for Senate from him; he now claims Bill Galvin, other election officials here and in other states, Twitter, Mark Zuckerberg, various professors at Harvard, MIT and Stanford, Associated Press and a Rockefeller family foundation are conspiring not just to destroy him but to eliminate all Americans' rights to free speech, using software imported from the United Kingdom.
Attorneys for the state and the national association called on Wolf to just toss the case entirely, saying the nonsense has gone on long enough and that their clients keep getting threats - some of which they've referred to the FBI - by Ayyadurai's riled up fan base. The judge told the lawyers to file proof of such harassment by Friday.
In July, Wolf was only considering possible fines and sanctions - which could include dismissal - for the way Ayyadurai fired his second lawyer two days before key motions were due to be filed, even though that would force yet another delay in the case. Wolf said nobody has the right to force a delay like that.
But today, Wolf demanded an answer to another question: Whether Ayyadurai wrote a detailed legal memorandum on a proposed new complaint, submitted July 22, by himself or whether yet another lawyer, based in California at the law firm that represented him in a lawsuit over whether he really invented e-mail, wrote all or part of it.
Lawyers who have not told a judge they are representing a client are not allowed to do that; nor are people represented by a lawyer, as Ayyadurai was that day, allowed to file court documents like that.
Even aside from the fact that the font on the document was different from the one Ayyadurai had used over several months of earlier self-filed documents, Wolf said it just didn't read like any of Ayyadurai's previous and often lengthy filings. "This one stood out because it seemed to be written in a much more lawyer-like way than anything you've submitted to me before and since," he told Ayyadurai. Also, his current lawyer, Timothy Cornell, filed a document saying he didn't sign the memorandum because it was written by the California lawyer.
Ayyadurai said he changed the font at Cornell's suggestion to be more professional. He insisted he wrote the whole thing himself, only reading it out loud as he did so that other people in his office could offer suggestions. And while the California lawyer, Dilan Esper, also made suggestions, Ayyadurai said he didn't use any of them; they came in too late. Ayyadurai explained the change in writing style by saying he is simply a good learner, in this case to be more professional in his writing.
"I am not in stasis," he said. "Maybe I'll also go to Harvard Law School and become a lawyer one day."
Both he and Cornell said Cornell's assertion about who wrote the document was wrong, that Cornell had simply made a mistake.
Wolf ordered Cornell to explain in writing why Wolf shouldn't charge Ayyadurai at least $20,250 in fines for the way he fired his second lawyer two days before key motions were due to be filed, even though that would force yet another delay in the case. The money represents the number of hours defense lawyers have spent on the case dealing with the aftermath of Ayyadurai's decision to fire one lawyer and hire another - a total of 45 as of last night - times $450, the hourly rate Cornell said he is charging his client.
Wolf also said he will order the California lawyer to appear before him to answer the question of whether he had anything to do with the filing. Wolf had ordered Esper to appear today, but he refused, saying he was not a lawyer on the case and anything he told Ayyadurai would be protected by attorney/client privilege. Wolf said Ayyadurai waived that right in a closed-door hearing before the public one, and that Esper will be called before him not as a lawyer but as "a material witness" - one who could face a contempt citation if he tries to not appear again.
"I am not pleased with Mr. Esper's failure to appear at all," he said. "I think there's a good chance we'll meet Mr. Esper."
Wolf acknowledged that in addition to fines, he can dismiss the case completely - and said he has yet to rule that out. But he said he remains reluctant to do that, despite arguments from assistant state Attorney General Adam Hornstine and the lawyer representing the national association that their clients long ago deserved to clear their name, to stop getting harassed by Ayyadurai fans, and to get back to the business of running elections.
"Embedded in this case are some serious issues," Wolf said. "The kernel of the case is whether [there has been] a violation of the First Amendment," whether through coercion by Bill Galvin and his officials or "close collaboration between elections officials and Twitter."
Normally, in addition to qualified immunity, the state officials would also be protected by the Eleventh Amendment, which bars suits against officials doing their jobs, while Twitter, still technically not a defendant, would be protected by its own First Amendment rights to decide what to allow on its own platform.
But from the beginning of the case, Wolf has said he was struck by how Galvin's elections division filled out a Twitter complaint form last fall about an Ayyadurai tweet that alleged the state had destroyed one million electronic ballots, which he claimed cost him victory in the September Republican primary.
Twitter didn't respond to the complaint and did not delete Ayyadurai's tweet, but temporarily banned him for similar tweets and then, after the Jan. 6 Capitol attack, banned him permanently. Wolf says this raises the issue of whether Twitter became a "state actor" in doing Galvin's bidding - a claim that Ayyadurai has expanded over the past several months to come up with his global conspiracy theory.
Wolf said that if he does decide to let the narrowed case continue, he's going to keep Ayyadurai on a short leash - even to the point of threatening criminal contempt charges against him, which could mean jail time. "What's past is not prologue," he said.
When Ayyadurai began to recite his entire conspiracy theory, in answer to the question of how he came to fire his second lawyer, Wolf cut him off.
"OK, stop," he said, just as Ayyadurai was about to explain how his parents came here from India to escape tyranny. "Do you hear me?" the judge asked. Ayyadurai stopped.
Later in the hearing, Wolf and Ayyadurai bickered over whether the plaintiff should hand over as evidence the e-mail messages that might have incorrectly led his current lawyer to believe that Esper had written the legal filing at the heart of the potential-fines question.
Wolf cut him off again. "You want to litigate the Eleventh Amendment issue," he said, beginning to jab his finger at Ayyadurai through his screen. "Now I'm going to explain to you one more time what you need to do to try to do that, so listen!"
Wolf ordered all the filings, including the new more limited complaint to be filed well before hearings he scheduled to start Aug. 25.