from the too-bad dept
Just last week we had Prof. Genevieve Lakier on our podcast to talk about the 1st Amendment and the concept of “jawboning”: government officials using informal pressure and wink-wink-nudge-nudge efforts to pressure companies into doing things that they are allowed to do as private companies, but which the government is forbidden from doing under the 1st Amendment. The key court case on this is the Bantam Books Supreme Court ruling in 1963. But there are questions about how this applies in a social media era, when you have politicians on both sides of the aisle leaning on social media companies to remove or punish speech they dislike.
Last fall, we had highlighted what we thought was potentially an interesting and important case about this involving Shiva Ayyadurai. As regular readers of Techdirt know, Ayyadurai sued us years ago for our articles highlighting the lack of evidence for his claims to be the inventor of email (claims that don’t stand up to much scrutiny when viewed against the historical record). That lawsuit went on for two and a half years and was incredibly draining and frustrating.
You might think, then, that we’d automatically side against Ayyadurai in his latest legal fight, but as we noted, he actually raised a really important 1st Amendment issue. The case originally was about Massachusetts government officials alerting Twitter to tweets from Ayyadurai that they claimed were election misinformation. Those tweets were extraordinarily misleading, and in the lead-up to the 2020 election, you can understand why election officials were tremendously concerned about election mis- and disinformation online. And, various government agencies and social media websites had set up processes to share information regarding such misinformation and disinformation.
But, most mis- and disinformation is still protected by the 1st Amendment. So there’s a really interesting question about where is the line between simply alerting private companies of such content — i.e., using the bully pulpit of government to highlight something a private actor can fix — and an unconstitutional move by the government to silence constitutionally protected speech? This case had the potential to explore that very issue — and it appeared that the judge saw that point. Unfortunately, much of the rest of the case went off the rails entirely.
I won’t go through all of the many twists and turns the case took (there were many), but a quick summary of a few of the key points. In response to a request for a temporary restraining order from reporting his account, Massachusetts agreed that it would no longer report tweets to Twitter until after the election, thus rendering the TRO request moot. As the case went on, the judge wondered why Twitter was not included as a party, if Ayyadurai was alleging state action (I actually think the judge is wrong on this — while there are some cases where the private actors should become parties, to me the focus should always be on the government actors who allegedly threatened or pressured the private actors — otherwise, it’s a kind of victim-blaming). Ayyadurai (representing himself) then moved to add Twitter as a party.
Somewhere in this process, Twitter shut down Ayyadurai’s account entirely. Ayyadurai insisted that this was because of its close relationship with government officials, and that because it happened soon after he had mentioned a Massachusetts official, it was somehow evidence that they were working hand in hand with the government. Ayyadurai then tried to file various amended complaints that included RICO/conspiracy claims and a variety of other claims. He found some widely available public documents that were produced to better educate both social media companies and election officials about how to respond to election disinformation, and claimed it was proof of the conspiracy and a manual to suppress protected speech. At a hearing in May, ostensibly about adding Twitter as a defendant, the judge strongly suggested that Ayyadurai hire lawyers for the next phase of the case, and even recommended a lawyer (Howard Cooper from Todd & Weld). The judge also hinted very strongly that the RICO claims had no chance and were likely to be dismissed, but he was interested in exploring whether or not the individual Massachusetts officials who were sued were protected under qualified immunity.
Soon after that, Ayyadurai notified the court that Todd & Weld would be representing him, along with… Charles Harder’s law firm (Harder, of course, represented him in his case against us) — though, he also asked that it be what’s known as hybrid representation, where he would be allowed to speak on his own behalf in the court, rather than just through a lawyer (the defendants from Massachusetts strongly opposed this request). Over the following few weeks, lawyers from Todd & Weld made their official appearances before the court, though as far as I can tell, no one from Harder LLP did so (this becomes more important shortly). There was then some more, um, somewhat abnormal back-and-forth regarding Ayyadurai’s proposed agenda for a scheduling conference, in which both Massachusetts and Twitter disputed Ayyadurai’s characterization of their discussions.
The judge eventually set out a schedule, asking Ayyadurai to file a revised complaint by July 15. On July 14, the attorneys from Todd & Weld, who had only just appeared a month earlier, filed a motion to withdraw as counsel, noting that Ayyadurai had “terminated” their representation on the 13th. Also on the 14th, lawyer Timothy Cornell (who was also Ayyadurai’s lawyer in the case against us, and had asked to file an amicus brief in this case) filed an appearance on behalf of Ayyadurai… and then on the 15th (the day the filing was due!) asked for an extra six weeks, noting that he needed time to get up to speed on the case.
The defendants in the case quite understandably called foul on all of this, hinting in their filings that part of the reason Ayyadurai fired his lawyers was that they had agreed to remove the claims against various defendants in their personal capacities:
In providing this final chance to amend the pleadings the
Court observed that claims against the individual defendants in their personal capacities were
bereft of legal support and encouraged Plaintiff to dismiss these claims. Indeed, Plaintiffâ€™s
recently fired counsel represented to the Defendants this week that they intended to jettison all
money damages claims against the individuals sued in their personal capacities. Now Plaintiffâ€™s
new attorney is apparently refusing to abide by this agreement and seeking an extension to
reevaluate the case.
The judge, Mark Wolf, who has a reputation as being a fairly “no nonsense” judge, responded quickly, and you might say he was not pleased. He refused to let the Todd & Weld lawyers withdraw, pointed out how ridiculous all of this was and how it was delaying justice and messing up the court’s schedule. And then noted:
The court is also considering whether to impose sanctions on
Dr. Ayyadurai personally, or to hold him in civil or criminal
contempt for his failure to comply with the June 16, 2021 Order.
Rule 16(f) of the Federal Rules of Civil Procedure states that “on
motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)” if a party “fails to
obey a scheduling or other pretrial order.” Fed. R. Civ. Pro. 16.
Rule 37(b)(2) provides a range of sanctions available to the court,
including “dismissing the action or proceeding in whole or in
part.” Fed. R. Civ. Pro. 37(b)(2)(A)(v).
The court has repeatedly admonished plaintiff that he is
required to comply with both the Local Rules for the District of
Massachusetts and the Federal Rules of Civil Procedure. See Oct.
29, 2020 Order (Dkt. No. 17) (“‘pro se status does not free a
litigant in a civil case of the obligation to comply with the
procedural rules.’ Nor does it permit a litigant to disobey court
orders”) (citing Rivera v. Riley, 209 F.3d 24, 27-28 & n.2 (1st
Cir. 2000)); Feb. 19, 2021 Order (Dkt. No. 63) (“Despite being
admonished by the court concerning the need to comply with the
Federal Rules of Civil Procedure and Local Rules, plaintiff did
not file a memorandum of law in support of his Emergency Motion as
required by Local Rule 7.1(b)(1) and allegedly did not confer with
defendants concerning his motion for a subpoena to Twitter (Dkt.
No. 56). Any future submissions that do not comply with the
applicable Rules may be summarily denied”); see of Oct. 30, 2020
Tr. (Dkt. No. 24) at 95:5-13 (“you’re going to have to read the
rules and follow them”).
Despite these warnings, plaintiff chose to terminate Todd &
Weld and retain new counsel the day before he was required to file
both his revised Second Amended Complaint and his supporting
memorandum of law. Plaintiff was undoubtedly aware that replacing
counsel just before these submissions were due would make it
impossible for him to comply with the deadline set in the June 16,
2021 Order. Plaintiff has provided “no good reason why [he] could
not have worked with [his] original counsel until a replacement
was identified” and an orderly transition occurred, instead of
retaining Mr. Cornell at the eleventh hour and requesting a six
week extension.2 Hooper-Haas v. Ziegler Holdings, LLC, 690 F.3d
34, 39 (1st Cir. 2012).
Plaintiff’s repeated failures to obey court orders may
justify a sanction, including the possible dismissal of this case.
The court then gave Ayyadurai and his lawyers (both the new ones and the “fired” ones) a week to file a revised second amended complaint, asked for a sealed affidavit from Ayyadurai explaining why he fired Todd & Weld, and then set a hearing for the first week of August. Ayyadurai argued the court should not sanction him, and noted that a key reason he fired the lawyers the judge had recommended was that they wanted to drop the RICO claims (which the judge had already made clear were not going to fly) and he wanted to include them:
Here, the Plaintiff was unaware until the final week that the filings were due
that his disagreements with counsel were to such an extent that he was left with the
stark choice of either accepting his counselâ€™s work product or finding new counsel…. Since he was determined not to allow the RICO claims to drop
and to oppose qualified immunity, he felt he was left with little choice. Although he
was aware that, if he dismissed his counsel, he would not be able to meet the Courtâ€™s
deadline for these filings, he believed his action was in the best interest of the case
and that the looming missed deadline could be easily cured by a grant of an
extension. He felt that an extension, in turn, would be largely harmless to the court
and the Defendants.
He also filed the proposed revised second amended complaint, which (of course) continues to argue laughable RICO claims, and includes a silly conspiracy theory chart. He also filed a Memorandum of Law in support of his claims. Somewhat notably, while that proposed complaint and memorandum of law were officially submitted via his “new” lawyer Timothy Cornell’s electronic filing account, it was “signed” by Ayyadurai himself, and not Cornell.
That is… not how this is supposed to work. The defendants called out the lack of Cornell’s signature and even noted that they asked him to add his signature and he refused to do so:
Ayyadurai then filed two documents over his own signature and without the signature of
counsel: a Revised Second Amended Complaint (Dkt. No. 167) and a Memorandum of Law in
Support of Plaintiffâ€™s Claims (Dkt. No. 166). Cornell electronically filed these documents for
Ayyadurai, but they were signed only by Ayyadurai. Defendantsâ€™ counsel immediately
contacted Cornell on July 23, 2021 to ask him to either withdraw the filings or append his
signature to them. In a telephone conference on July 26, 2021, Cornell declined to do so.
Then, incredibly, things got even weirder. On August 3rd, the day before the hearing about all of this, the Judge filed quite an incredible order, noting that Cornell had filed, under seal, an affidavit claiming that the Memorandum of Law had been written by another law firm.
In an ex parte affidavit filed under seal (Docket No. 169), plaintiff’s counsel Timothy Cornell reported the plaintiff’s Memorandum of Law (Docket No. 166) was “written by a law firm in California that did not put its name on the memorandum.”
The judge then ordered Ayyadurai to file an affidavit prior to the hearing identifying who wrote the document, and ordered that whoever it was who wrote it should appear at the hearing and be prepared to testify. Ayyadurai responded, claiming it was all a misunderstanding and he alone wrote the Memorandum of Law, saying he only had unnamed others review it and his own lawyer, Cornell, “misunderstood this fact.”
Judge Wolf was, well, not happy. He ordered Ayyadurai to do better:
The court has received plaintiff Shiva Ayyadurai’s August 3, 2021 affidavit (Dkt. No. 181) in response to the August 3, 2021 Order (Dkt. No. 178). In it he contradcits his attorney Timothy Cornell’s sworn statement that the Memorandum of Law filed on July 22, 2021 (Dkt. No. 166) “was written by a law firm in California that did not put its name on the memorandum.”…
In view of the foregoing, it is hereby ORDERED that:
- By 11:30am on August 4, 2021, plaintiff shall file an affidavit identifying the “others” who reviewed the July 22, 2021 Memorandum of Law; and
- Cause those “others” to attend the 2:00 p.m. August 4, 2021 hearing by videoconference, and to be prepared to testify if necessary.
Finally, Ayyadurai (again, filing via Cornell’s account, but signing only his own name) identified three people who reviewed the document, including one lawyer: Dilan Esper, who is a rather experienced attorney and partner at… Harder LLP, the law firm Ayyadurai had previously said would be entering the case but never actually did.
Despite the demands for him to appear, Esper never showed up at the hearing on the 4th, with the judge repeatedly asking where he was. At some point, apparently, Esper emailed the court clerk to note he would not be appearing. The hearing went on for a while, with the judge being noticeably upset about all of this. He noted that the contested filing appeared different, both in style and in content, than previous filings by Ayyadurai. Defendants’ lawyers highlighted stylistic differences including a different font and caption. The judge spent a bunch of time exploring possible monetary sanctions and asked the lawyers for Massachusetts for estimates of how much they would bill hourly and how much time they had spent on the case. For what it’s worth, the lawyers insisted they didn’t care about monetary sanctions, noting that they were employees of the government and salaried, so hourly fees were meaningless, and that the sanction they desired was simply the dismissal of the case. In the end, the judge agreed to dismiss most of the claims, but noted that he was actually still interested in the 11th Amendment questions regarding qualified immunity, along with the 1st Amendment questions regarding government suppression of political speech, and told Ayyadurai and Cornell to file a new complaint just about that issue. He also “reserved judgment” on the question of sanctions for Ayyadurai.
And… that meant that there might have been an eventual actual examination of the 1st Amendment claims regarding the limits of jawboning!
But, apparently, it is not to be. A day after filing an astoundingly sloppy and weird amended complaint, Ayyadurai filed a stipulation of dismissal, agreed to by all parties, dropping all claims in the case:
NOTICE IS GIVEN that, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii),
Plaintiff Dr. Shiva Ayyadurai now hereby voluntarily dismisses with prejudice all claims in this
suit. In addition, all parties voluntarily withdraw all pending motions in this matter. There is no
further action by any party on this matter, no questions in controversy remain among the parties,
and each party will bear its own costs and fees.
It’s not a surprise that the defendants agreed to this. In the hearing, they had made it clear they didn’t care much about fees or sanctions beyond dismissal. So this voluntary dismissal gets them all that they want.
Of course, that doesn’t mean the judge has to go along with it. In theory, the judge could still sanction Ayyadurai for his actions in this case, though he may be happy enough to have the whole thing off his plate that he lets it go without sanctions.
In the end, though, I’m somewhat frustrated and disappointed in this end result, because I still believe that buried deep in the core of Ayyadurai’s complaint there was a really important issue to explore about the borders of where and how a government official can lean on private companies to take down protected speech. As we discussed in our podcast, where is the line between compelling private actors to take down speech and merely persuading them? It’s a very blurry line, unfortunately, and a good case and a good ruling exploring that issue is actually tremendously important for the 1st Amendment.
Unfortunately, this was not that case.
Filed Under: 1st amendment, content moderation, disinformation, jawboning, massachusetts, misinformation, qualified immunity, rico, shiva ayyadurai