Court filing
Preliminary Injunction Hearing Transcript — Changizi v. HHS
Filed June 8, 2022 in Changizi v. HHS; one of 18 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of Ohio, Eastern Division |
|---|---|
| Filed | 2022-06-08 |
U.S. District Court for the Southern District of Ohio, Eastern Division · No. 2:22-cv-01776-EAS-CMV · Doc. 39 · 2022-06-08 · Docket on CourtListener
Full text
LAHANA DUFOUR, RMR, CRR
FEDERAL OFFICIAL COURT REPORTER
85 MARCONI BOULEVARD
COLUMBUS, OHIO 43215
614-719-3286
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK CHANGIZI, ET AL,
)
)
PLAINTIFFS, CASE NO. 2:22-CV-1776
)
)
vs.
)
)
DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES, ET AL,
)
)
DEFENDANTS.
)
__________________________
)
TRANSCRIPT OF PRELIMINARY INJUNCTION PROCEEDINGS
BEFORE THE HONORABLE EDMUND A. SARGUS, JR.
THURSDAY, APRIL 28, 2022; 9:00 A.M.
COLUMBUS, OHIO
FOR THE PLAINTIFFS:
New Civil Liberties Alliance
By: Jenin Younes, Esq.
John J. Vecchione, Esq.
1225 19th Street Northwest, Suite 450
Washington, District of Columbia 20036
Frantz Ward LLP
By: Jay R. Carson, Esq.
2500 Key Center
Cleveland, Ohio 44114
FOR THE DEFENDANTS:
Department of Justice
By: Kuntal Cholera, Esq.
1100 L Street Northwest, Suite 12306
Washington, District of Columbia 20001
- - -
Proceedings recorded by mechanical stenography, transcript
produced by computer.
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Thursday Morning Session
April 28, 2022
- - -
THE DEPUTY CLERK: Case number 2:22-cv-1776, Mark
Changizi versus Department of Health and Human Services, et al.
THE COURT: Counsel, good morning to all of you. This
matter is scheduled for a hearing with regard to the
plaintiffs' motion for preliminary injunction. We've had
several phone discussions about what facts were disputed and
which ones could be stipulated. It looks as though not much.
I see the exhibits are essentially what's been attached to the
affidavits which I take that to mean you haven't reached
stipulations. Would that be correct?
MR. VECCHIONE: Your Honor, we haven't reached any
stipulations but they're not the same exhibits, all of them.
There's overlap but it's not the same.
THE COURT: There's overlap. All right. Very good.
You may call your first witness.
MR. VECCHIONE: Your Honor, Plaintiffs call Dan Kotzin
to the stand.
THE COURT: He will come forward.
(Witness sworn.)
THE COURT: Counsel, you may proceed.
MR. VECCHIONE: Thank you, Your Honor. Before we
begin, if there's no objection, I would like to enter
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Plaintiffs' Exhibit 9, 10, 10-2, 11, 11-2, 12 and 12-2.
THE COURT: Any objection?
MR. CHOLERA: Your Honor, just for form. We obviously
object on the grounds of relevance. We're not going to object
to him showing it to the witness.
THE COURT: I will decide what weight to put on these
but I take that to mean you're not objecting.
MR. CHOLERA: Exactly, Your Honor. I just wanted to
make sure we're not waiving any relevance.
THE COURT: They're admitted.
MR. VECCHIONE: Thank you, Your Honor.
- - -
DANIEL KOTZIN
Called as a witness on behalf of the Plaintiffs, being first
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. VECCHIONE:
Q.
Mr. Kotzin, thank you for being here today. Can you
tell the Court your educational background from high school?
A.
Sure. I graduated from Macalester College in St. Paul,
Minnesota with a bachelor's degree in English and I was an Iowa
law fellow and I graduated from the University of Iowa College
of Law. I have a Juris Doctor. I practiced law for over ten
years in California.
Q.
Got it. What do you do now?
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A.
Now for quite a few years I'm a stay-at-home dad. My
wife is the primary earner of our family. She's the only
earner for our family.
Q.
And where do you live?
A.
I live in Denver.
Q.
This is your first trip to Columbus?
A.
No. Funny you should ask. I was just having a trip
down memory lane. From 1981 to 1983, I lived in Bexley, Ohio
and I attended Bexley Junior High and then I was not in
Columbus for many years. And then my last time here was in
2008. I was a volunteer in Barack Obama's presidential
campaign and I flew here as a young lawyer and knocked on doors
and then spent election day at the polling booths protecting
the vote.
Q.
Did there come a time when you began using the social
media platform Twitter?
A.
Yes. I had opened an account many years ago but it was
dormant and in about April of 2020, so about a month into the
pandemic, I wanted to find an audience for my views on what was
happening in response to COVID, and Twitter seemed like the
place to go if you wanted people, the general public, to be
exposed to your views.
So I went on Twitter and my goal was to have an outlet.
I wasn't journaling. I wanted people to read what I was
writing.
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Q.
What's journaling?
A.
Journaling is if you write for yourself. You want to
get your thoughts organized and you want to write them down and
have a record of your own thoughts and ideas. That wasn't what
I wanted to do. I wanted to persuade other people to have my
ideas.
Q.
All right. So on the platform Twitter, are there
individuals called followers?
A.
Yes. And most Twitter users are actively trying to
accrue followers.
Q.
Would you say that applied to you as well?
A.
Yes. That was a primary goal. Because, as I said, I
wanted to broadcast my views and the more followers you have,
the more people are exposed to your views.
Q.
Can you tell the Court approximately how many followers
you have as we sit here today?
A.
Today I have about 31,000 followers which, for me, is
very significant. In April of 2020, this time period that
we're talking about, I would have had less than 100.
Q.
And I guess what you're saying, can you tell the Court
whether or not in March, or thereabout, 2020, the major subject
that you discussed on your Twitter account changed?
A.
Yes. The exclusive content became COVID-related and our
response to COVID. I began doing extensive research. I also
have a medical background. I was trained as a paramedic. So I
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do have some medical background. As a lawyer, I have a lot of
research skills. And I wanted to understand what was happening
and it quickly became apparent to me that my view of what was
happening was quite different from the mainstream view.
Q.
And in general terms, what was your view?
A.
I was living in San Francisco at the time and I had four
children and I lived in an apartment without a yard. San
Francisco was the first city in North America to have a
lockdown and they closed outdoor playgrounds for eight months.
So during that eight-month period, I was home with a
three-year-old and a five-year-old while my wife was trying to
work and I was unwilling to have them sit on an iPad for 16
hours a day which is what the city of San Francisco wanted us
to do. The preschools were closed, the playgrounds were closed
and we had no yard.
So it started in some civil disobedience. I was urging
other people to go to the outdoor playgrounds and that urban
children deserved a place to play. So that was sort of the
beginning of my involvement. As I looked into it, it seemed to
me that many of the other restrictions were unnecessary. And I
wanted to communicate that.
Q.
And did you communicate that?
A.
I did. I was very aggressively communicating that point
of view. I was very frustrated. I thought if I just shouted
louder, more people would hear me.
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Q.
I'm going to just take you through a few points. The
views you've just described in general, did you put those views
like that on Twitter in March 2020?
A.
I would say in April 2020, I started, yes. I was
specifically telling people to resist. That was one of the
words I was using during that time. I was considering myself a
left-wing resister and this was a continuation of a lifetime of
civil disobedience. And I wanted people -- my act of
resistance was taking small children to outdoor playgrounds. I
was telling people disobey the rules, do not follow CDC
guidelines. Do not do what the city of San Francisco tells you
to do. Take your children to the outdoor playgrounds.
Q.
All right. And so you did this in April of 2020, May of
2020?
A.
Uh-huh.
Q.
Fair to say June of 2020?
A.
Yes. To be clear, I would, as time went on, by the
summer of 2020, I was tweeting every day. By then I would
probably say I had a few hundred followers in the summer. So
still not very many but I had -- it was people I don't know
were reading what I wrote. I was getting messages, please keep
doing what you're doing. Please explain to us. We want to
understand. We don't trust a lot of news sources. People were
reaching out to me through the platform that I didn't know
requesting that I keep doing what I was doing.
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Q.
All right.
MR. VECCHIONE: Your Honor, may I either approach or
hand up the exhibits to the witness?
THE COURT: If you give them to the courtroom deputy
and she'll do that. Thank you.
BY MR. VECCHIONE:
Q.
Do you have the exhibits in front of you?
A.
I do.
Q.
You put in a declaration in connection with this
preliminary injunction, correct?
A.
(Nods head.)
Q.
And you attached certain tweets, I guess you call them?
A.
Yes. Exactly.
Q.
And all of those tweets you produced yourself and you're
aware of them from your personal knowledge?
A.
Yes.
Q.
And these as well. I want to direct your attention to
P9. Can you tell the Court when this was?
A.
This tweet is dated September 27th, 2020.
Q.
And what do you say here?
A.
Come on, San Francisco. It's a beautiful day out there.
Let's take our masks off and get outside. Look for me and my
kids at the playgrounds. Resist.
Q.
And then there's photos of your kids. You can put
photos on Twitter?
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A.
Yes. And so if you notice, this is actually a very
famous playground. This is Dolores Park in San Francisco. Any
San Franciscan that saw this picture, and there was a lot of
dispute about it, the fact that -- it was eight months into the
pandemic. Everywhere else in the world, outdoor playgrounds
were open already. In Columbus, they'd been open for six
months at that time.
So it was quite striking. There was basically nowhere
in America that still had the outdoor playgrounds closed, so I
was hoping to attract attention with the photos.
Q.
All right. And then, that's September of 2020. In your
affidavit, I won't repeat it, but in October of 2020, did you
also tweet about how resilient kids are or not?
A.
I definitely did.
Q.
It's not in there.
A.
It's not in there. Tell me again.
Q.
Do you recall?
A.
One more time, please.
Q.
Did you tweet about the resiliency of children or not?
A.
Yes.
Q.
And what was the point of that?
A.
If I know what you're referring to, I did not like the
fact that children were being told that they were resilient
because I thought that was code for just letting children --
not pay attention to children's needs.
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Q.
And then I'll go through. Is it fair to say in every
month you're tweeting multiple times?
A.
Yes. By this time, if we're in fall of 2020, I was
tweeting multiple times every day. I would have had, again, I
don't know, probably less than 1,000 but upper hundreds. My
follower count was steadily increasing and I began expanding
the scope of what I was tweeting about to a lot of
COVID-related issues, objecting to a lot of the regulations.
Q.
And I'd like you to --
A.
I see the one you're talking about in October now.
Q.
But you can go forward. I think the next one -- what is
that one? If you see it in front of you.
A.
Now I see it right in front of me. This tweet that I
recollect very well from October of 2020, I wrote, we are
treating --
Q.
What's the exhibit number down at the bottom?
A.
I'm reading it from my attachment 2 from my declaration.
THE COURT: I don't see an October, is there --
MR. VECCHIONE: Neither do I.
THE WITNESS: It's in my declaration.
BY MR. VECCHIONE:
Q.
Does that refresh your recollection?
A.
Yes. It totally refreshes my recollection.
Q.
So then I'll just go through November. In December --
would you please look at Plaintiffs' Exhibit 10-2?
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A.
I see that one.
Q.
All right. Can you read into the record what you were
writing in December of 2020?
A.
Yes. Some public health officials are claiming that
asymptomatic, vaccinated people, many of whom have previously
been infected with COVID, could still be spreaders and should
be required to remain six feet apart from other humans in
masks. America, we have been warned. Resist.
Q.
All right. The date on that is?
A.
December 15th, 2020.
Q.
And then on Christmas Eve, 2020, I'd like to take a look
at P12.
A.
I have that one, too. This one I remember very well.
Q.
This one has to do -- it's in evidence. You don't have
to read it. This one has to do with Dr. Fauci's statements
about -- some of his previous statements.
A.
Correct.
Q.
You asked a question at the end, what else is he lying
about?
A.
Uh-huh.
Q.
All of 2020, December of 2020, you've been writing
messages like this.
A.
Uh-huh.
Q.
Were you ever told by Twitter during this period that
you couldn't tweet this type of material?
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A.
No. I felt very free. And in fact, during that time,
Twitter was considered to be more free than the other major
platforms. People went to Twitter for free expression of
various kinds because it was believed that there was less
censorship on Twitter. Personally, it never occurred to me. I
thought I could say whatever I wanted. It did not occur to me
that anything that I might write on Twitter would ever be
removed by Twitter for any reason. It was unimaginable to me.
I was just a guy with a few hundred followers, normal person
writing normal things.
Q.
All right. Let's go to -- we'll keep moving on. Did
there come a time from what you just described as Twitter's
attitude changed towards you?
A.
Yes. In the -- let me make sure I'm getting the
timelines correct in my head. In the summer of 2021, there
began to be a lot of discussion on Twitter, on people I was
communicating with about people being suspended and about
Twitter beginning to censor speech on the platform. And there
was talk that this could be directed by the government because
there had been statements by the government. But personally, I
didn't really pay any attention to it. I didn't --
At this time I maybe had a few thousand followers. So I
considered myself a nobody. I thought I was living in America.
Yes, there were people on Twitter being suspended and knocked
off and there was a lot of excitement, but I didn't think it
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would reach me. But then that all changed in September of '21,
when I woke up one morning to see that I had been locked out of
my account.
THE COURT: Let me back you up for just a moment. If
we go back to Plaintiff Exhibit 12.
THE WITNESS: I have that one.
THE COURT: If you go to the last line. Your view
regarding retweets, quote tweets and likes.
THE WITNESS: Yes. That is an astute observation by
you, Your Honor. This was my first --
MR. VECCHIONE: Let him ask.
THE COURT: My question at this point is when you have
that many likes, people have to see what you've tweeted. So
you've got a significant number of followers by, the date on
this is December 24th, 2020.
THE WITNESS: First, my apologies for interrupting.
THE COURT: You didn't interrupt me. That's all
right.
THE WITNESS: Secondly, I sort of -- this was my first
successful tweet. I never had -- that's why I said you had an
astute observation. I never had anything like this of the
kind. If you look at the others, there are things like 24.
This is still one of my top 10 most successful tweets. This is
the first time that I had a taste of success on Twitter and
it's quite intoxicating.
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THE COURT: All right.
BY MR. VECCHIONE:
Q.
Why don't we put that on the record. Can you just say
for the record what retweets are, what quote tweets are and
what likes are?
A.
Sure. When you tweet something, a retweet means that
another person likes what you wrote so much that they want to
rebroadcast it and have more people look at it. So a like
means they liked it and a retweet means they like it so much,
they want more people to read it. And quote tweets are just a
form of it. So when you have thousands, there's people Elon
Musk gets millions. But for me, this was like a whole
different level.
Q.
Can you tell the Court what, if anything, happened in
September of 2021?
A.
Yes. I woke up and I tried to access my Twitter account
and I found that, although I could look at it, I was unable to
write any tweets, I was unable to like or retweet. I wasn't
able to do anything but look at it. And I didn't really
understand what had happened. And then I saw that I must have
here somewhere, that they had sent me an e-mail explaining what
had happened.
Q.
And you describe that in your declaration?
A.
Yes, and that's why I want to be precise.
Q.
Hang on. I can refresh recollection, if you'd like.
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A.
Yes. I was just trying to refresh myself on the date.
I probably had the tweet on September 23rd and I woke up on
September 24th. So I guess that's fall. And I see the tweet
here if you'd like me to read the tweet.
Q.
Go ahead.
A.
There is not now, nor has there ever been, evidence that
the COVID shots reduce infection or transmission. Vaccine
passports; vaccine mandates; vaccine requirements -- they are
all an abomination. That's the end of the tweet. And if I
could comment now, that's two sentences. The first one is a
fact and the second one is an opinion. So I do not understand
then nor now how any universe that can be misinformation.
Q.
Were you told by Twitter why you were suspended?
A.
Yes. For, quote, violating the policy on spreading
misleading and potentially harmful information related to
COVID-19.
Q.
All right. So we've looked at some of your tweets and
you've testified. I think it's pretty clear by now. You were
saying similar things from early spring 2020, all the way up to
mid-fall 2021. And during that time you didn't get any of
these types of notices from Twitter; is that fair?
A.
No. And I would say that I made statements that were
much more controversial than this statement here for which I
was suspended.
Q.
And did you stay suspended? What happened?
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A.
So for this first one, it was 24 hours. Well, first,
you have to delete the tweet. You have to delete the offending
tweet and then they start a countdown clock, 24 hours before I
would regain access. And so initially, I was sort of excited.
I was like, whoa, I made it to the big time. The government
thinks they have to keep me quiet because I am a danger. But
that quickly changed to, first of all, being frightened that I
would lose my voice and it would be taken away permanently.
And secondly, I found it really disturbing.
Q.
Sorry to interrupt you there. What do you mean by a
fear of losing your voice?
A.
I haven't explained properly. It's my fault.
As part of the suspension, they warned me that further
misinformation would result in me being permanently shut out of
Twitter, which I'd already -- it had happened, as I was saying,
over the summer, to people that I thought of as famous and
famous provocateurs. So there had been people that summer who
had been permanently kicked off of Twitter.
Q.
And so in addition to writing your tweets, you read
other people's tweets?
A.
Yes.
Q.
On this subject?
A.
Yes. My interest in Twitter was 90 percent
COVID-related matters.
Q.
Was this your last suspension?
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A.
No.
Q.
What happened next in regards to suspensions?
A.
Well, if I may, the next suspension was six months
later. So if I may, I'd like to discuss a little bit how I was
on Twitter during those few months.
Q.
What was happening in between then, if you'd like?
A.
I changed my behavior. As I said earlier, I felt free
and expressed myself without concern that anyone might censor
me. But now that all changed.
I was so concerned, I did not want to risk permanent
suspension from Twitter. So I wanted to be careful not to give
anyone an excuse to suspend me again.
The first thing I did was I started -- I'm a former
lawyer so I was using hypotheticals, phrasing things in the
form of a question, trying to think of clever ways to say the
things I wanted to say without giving them anything they could
call misinformation. But the other thing I did was I just
about at that time I was going to start researching early
treatment options for COVID which is a topic I didn't know
anything about which is very widely discussed. There were
various antivirals, people talked about vitamin D. Didn't
know, there were a lot of different things.
That was something that the government said early
treatments were bad. We shouldn't have early treatments, only
the vaccines. So I knew I would be censored if I wrote
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anything. So I didn't even research the subject. I still, to
this day, I have no opinion. I don't know. I never wrote
about it. I never researched it because, what would be the
point? I wouldn't be able to share my research with others. I
wasn't -- as I said, everything I did was to try --
Q.
Is that something Twitter told you?
A.
No. That was from statements the government made.
Q.
Thank you. And then I'll ask again, did there come a
time when you were suspended?
A.
Yes. Then I want to get the exact, correct date so I
will look here again. On March 7th, similarly to what happened
to me in September, I woke up to see that I had been locked out
of my Twitter account except for this time instead of one day,
it was for seven days. And I got -- it was exact same e-mail
saying COVID-related misinformation and if I kept doing it,
then I would be permanently banned from Twitter.
Q.
And were you let back on?
A.
Yes. Then seven days later I was let back on. Can I
read the one that I got suspended for? I'm quite proud of it.
Q.
Go right ahead.
A.
Because it's astonishing to me that in America someone
could get censored for this. I stated a fact. It is important
to never lose sight of the fact that the global pandemic is
ending not because of vaccines but because almost everyone on
the planet got infected with COVID, end quote. Since that
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tweet came out, that has been said almost word for word by CDC
Director Rochelle Walensky; Director of NIAID, Anthony Fauci.
Before I posted that tweet, the Icelandic health director said
what I said basically word for word.
Q.
Do you know if they have Twitter accounts?
A.
That's a good question. Probably the Icelandic tourist
board has one.
THE COURT: Only if you know.
THE WITNESS: But I don't know.
BY MR. VECCHIONE:
Q.
Did there come a time when you were suspended again or
not?
A.
Yes. So after -- I should say that this suspension I
just mentioned on March 7th, occurred just a few days after the
Surgeon General very publicly called for Twitter to crack down
on misinformation. So to me, it seemed like a direct response.
As I said, I'd been continuing in my fashion since September.
I avoided certain topics, early treatment, on the topics I
wrote about. I asked in the form of a question. I used
hypotheticals. I wasn't really worried about getting
suspended. I had figured out a way to comport myself with the
government censorship and I was pretty confident. Surgeon
General made his remarks, three days later I was suspended.
So then I went back on Twitter. Now I should remember
it better because we're already in last month. Theoretically,
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I should remember that quite well. There we are, a few weeks
ago I just went about my business just like I had been before.
Because at that point now I feel it's beyond my control. If
the government doesn't want me on Twitter, I won't be on
Twitter. There's nothing I can do. They can clearly suspend
me for anything. So my tricks of trying to use hypotheticals
are irrelevant because they'll suspend me anyways.
Q.
What does the prospect of permanent Twitter ban mean to
you?
A.
It's so upsetting that I'm sort of even embarrassed to
admit it in open court. I really have devoted a tremendous
amount of my time and intellectual and emotional energy to
Twitter and I have a relationship with these followers. I
get -- so there's something called direct messages, DMs on
Twitter.
Q.
What are direct messages?
A.
They're ways to communicate with your followers.
Typically followers will write to someone that they follow to
ask them questions.
Q.
Can anyone see these?
A.
No. These are private messages or we hope that they're
private. And so I've been getting all this time messages,
almost daily, from people saying what you do really means a
lot. Your work means so much to us. Please keep going.
Please. I feel alone. I really -- I wake up every morning
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looking forward to your tweets. A person, an ego, it's a big
ego boost along with everything else. As I said, I don't have
a job. This is what I devoted my intellectual energy to.
Q.
What happens when you're banned? Can you tell the Court
what happens to your past tweets and what happens to your DMs
and your ability to even look at what you've done before?
A.
So a permanent ban is different from the temporary bans
that I've been subjected to already. When you're on a
temporary ban, you can still look at the things you've written.
When there's a permanent ban, Twitter not only removes your
access from what you've written but they remove everything
you've written from the platform. No one can see it.
So I've spent two years, I don't know how many tens of
thousands of tweets I have. There's intricate webs of
connection. There's conversations. And when someone is
removed, it's as if they didn't exist. They're removed from
conversations. Their comments aren't there.
So for people like me, it's my intellectual work. It's
hard to say without sounding silly. I'm a writer. That's my
writing. That's my work.
Q.
I think you testified earlier that you look at other
people's Twitter accounts on this subject. Have you seen any
permanent bans of people you follow?
A.
Yes. One of the most devastating ones is from my fellow
Plaintiff, Michael Senger. I've never met him personally even
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though he lived in San Francisco and I did. But we were from
very early on, probably from summer of 2020, we were on Twitter
and he grew his following even more than me. He had over
100,000 followers and he was attracting international
attention. International news organizations were contacting
him because of his Twitter. He leveraged his Twitter into a
book that he published. None of it was possible.
He has been chronicling daily events around the world
that are happening related to COVID. So when his account was
removed, the things that he documented are not there. So
things that he had, I've been trying to look back. I remember
communicating with him a year and a half ago about things that
were happening in San Francisco. And in his Twitter account he
had photographs, he had writings, he had record of things that
had happened and that's no longer there.
Q.
Have you had occasion to observe Twitter accounts that
support the government position on lockdowns and on
vaccinations and on masks?
A.
Yes.
Q.
Do you have any knowledge of whether those type of
accounts are being shut down the same way for misinformation?
A.
None of those accounts have been shut down. Those of us
that have been advocating on Twitter for, let's say, looser
restrictions from the beginning, have our counterparts on
Twitter that have been advocating for more strict restrictions
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from the beginning. Those people often put factually incorrect
statements and not only are they not suspended from Twitter
but, in fact, Twitter often promotes them.
Q.
How do you know that?
A.
Because they have accounts that are promoted. They're
passed on. Twitter will say, reliable source. And they pass
them on. There is one person who is often cited. He's Eric
Feigl-Ding who presents himself as an epidemiologist. He
regularly posts things that are factually incorrect. Like
literally wrong. The opposite of reality. And there's never
any consequence.
Q.
The request for information from the Surgeon General,
did that affect you seeing it, knowing about it, did that
affect you in any way?
A.
Yes. Well, that's what, as I said, I feel like I'm
caught between a rock and a hard place. I don't want to lose
my account but my strategies that I used in the past are no
longer effective. I feel helpless before the government and
I'm also concerned I never felt this way really before in my
life, but now I feel like the government is my antagonist and I
don't want them to have information about me. They're saying
they want an enemies list. That's very frightening.
Q.
What type of information did you give to Twitter?
A.
Twitter has extensive information. One, for example, is
those DMs that we were talking about which I considered
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private. I communicate with real-life friends, my followers.
There's a lot of intimate, personal information. Most of the
things you post on Twitter are for public but I always felt
like the DMs were completely private and that it was just
between me and whoever it's written to.
Q.
And can you say whether or not you have a concern about
those DMs being taken by the government?
A.
I'm very concerned because the Surgeon General says he
wants to know. He wants -- there's an enemies list. They want
to know who's making trouble for the government.
Q.
In this case that you've brought, you've brought it
against the government. Why do you believe that it's the
government and not Twitter that is responsible for this?
A.
Because I observed it. Before the government -- before
Jen Psaki called for the government to crack down on it in the
summer of 2021, as I said, I felt totally free.
THE COURT: Let me ask, we're becoming kind of
evidence -- Rules of Evidence free here.
MR. VECCHIONE: My last question, Your Honor.
THE COURT: Anything that he knows, he can testify to.
But I don't want his -- in other words, as I understand, he's
linking things that would connect but he doesn't know they
connect. He wants me to draw an inference, which I may or may
not do. He's entitled to do that. But he can't draw the
inference. So we'll leave it at that.
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MR. VECCHIONE: I understand, Your Honor. I just
wanted to ask his understanding, which I've done. That was my
final question.
THE COURT: Very good. Thank you.
Let me get the names correctly. My name is always
mispronounced. I don't like to do that to other lawyers. Your
name is pronounced?
MR. VECCHIONE: Vecchione.
THE COURT: Vecchione. Very good.
And your name is pronounced?
MR. CHOLERA: Kuntal Cholera.
THE COURT: And your name is produced?
MS. YOUNES: Jenin Younes.
MR. VECCHIONE: And this is Jay Carson.
MR. CARSON: Jay Carson.
THE COURT: You're easy.
And you may have cross-examination.
- - -
CROSS-EXAMINATION
BY MR. CHOLERA:
Q.
Mr. Kotzin, have you ever worked at Twitter?
A.
No.
Q.
Have you ever interviewed any executive of Twitter?
Have you interviewed any employee of Twitter?
A.
Not to my knowledge.
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Q.
So you haven't spoken to anyone at Twitter that's
responsible for administering their misinformation policy?
A.
No.
Q.
So no one at Twitter has ever told you, we blocked your
account because of something the government did or were afraid
of government coming down on us? Nobody ever told you that
from Twitter?
A.
No.
Q.
No one at Twitter then told you that we're about to
respond to this request for information by turning over your
information, Mr. Kotzin?
A.
No.
Q.
Nobody at Twitter ever told you, we're about to turn
over private direct messages?
A.
No.
Q.
Did anybody at Twitter ever tell you then or is it
correct, I think it's better to say, is it correct that nobody
at Twitter has ever told you, we define misinformation the way
we do because of anything the government said?
A.
I would say that's not accurate. Given the messaging
that Twitter has --
Q.
That wasn't my question. My question was, has anyone at
Twitter ever told you, we define misinformation because of the
way the government told us to define misinformation?
A.
I'm going to answer that a yes. On their e-mails and
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communications on their platform, they say that COVID
misinformation is defined by the CDC and other government
agencies. So that is government.
Q.
And what was that definition?
A.
Misinformation are things that the CDC considers to be
misinformation.
Q.
And where is that definition? But what is the
definition the CDC gave, I guess is my question?
A.
It's Twitter's. Ask them. It's always changing.
Q.
The CDC's is always changing?
A.
Wear a mask; don't wear a mask. Six feet apart; not six
feet apart. It's always changing. What Rochelle Walensky says
today is not what she said two months ago. Anthony Fauci said
the pandemic was over two days ago. Yesterday, he said it's
not over.
Q.
Would it surprise you that the CDC's definition of
misinformation, I'm just quoting here, is things that go
against the weight of the evidence or something as broad as
that?
A.
The CDC doesn't get to decide what the weight of the
evidence is.
Q.
That wasn't my question to you, Mr. Kotzin. My question
to you is would it surprise you that the CDC's definition is
actually a quite open-ended definition of misinformation about
what goes against the weight of the evidence?
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A.
Nothing about the CDC would surprise me.
Q.
So suppose it is a very broad definition of
misinformation about going against the weight of evidence. Has
anybody at Twitter ever told you what we consider to go against
the weight of evidence is whatever the CDC has told us goes
against the weight of evidence?
A.
Yes.
Q.
Where did Twitter ever say that to you?
A.
On their statements, on their platform. When they
explain what misinformation is. If you give me a minute, I
probably have it somewhere in my documents.
Q.
Go for it.
A.
You reference government agencies.
THE COURT: Go ahead. Why don't you look for it.
BY MR. CHOLERA:
Q.
Look for it, please.
THE COURT: Take your time.
THE WITNESS: Let's see what they wrote to me in their
e-mail about misinformation. So under this policy, we require
the removal of content that may pose a risk to people's health
including content that goes directly against guidance from
authoritative sources of global and local public health
information. I interpret those as government agencies.
THE COURT: Let me back you up. You read that from a
document. What's the document?
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THE WITNESS: I'm reading this from each of my three
suspensions. This is in the e-mail that I received from
Twitter explaining the reason for my suspension. They're
entered into evidence.
THE COURT: What document number so we can have this
in the record. Is it attached to your affidavit?
THE WITNESS: It's in my declaration. That's where
I'm looking at it.
THE COURT: If you can give me the page number, that
would be great.
THE WITNESS: Sure. It is going to be one of the
attachments in my declaration. I believe it's attachment 5.
BY MR. CHOLERA:
Q.
I believe you also misunderstood my question.
A.
Also attachment 6. Also attachment 7.
THE COURT: Just so the record is clear, so it's the
first page behind attachment 5 and it's the second paragraph.
Okay. Go ahead.
BY MR. CHOLERA:
Q.
I think you misunderstood my question. My question to
you wasn't do they adopt a definition of misinformation that
the government adopts. My question to you is did Twitter ever
tell you that they adopted that definition, the one the
government has proposed, because the government told them to do
it?
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A.
Let me think that through. There's a few elements
there. Did Twitter tell me that their policy on misinformation
was directly given to them by the government? I'm not really
privy --
Q.
That wasn't my --
THE COURT: Hang on. Can't take you both at the same
time. Go ahead, finish your answer.
THE WITNESS: As best I understand your question, I'm
not totally sure. I'm going to say I don't understand your
question.
BY MR. CHOLERA:
Q.
Let me repeat it for you. Did anybody at Twitter ever
tell you that whatever definition of misinformation they use,
whether it's their own formulated definition or a definition
provided by the government, did anybody at Twitter ever tell
you that the reason they picked that definition of
misinformation is because somebody at the government told them
they had to adopt that definition of misinformation?
A.
No.
Q.
Okay.
A.
Thank you for clarifying.
Q.
No problem. And I apologize if it was unclear at the
beginning.
Are you privy to any internal e-mails within Twitter
about their misinformation policy and how it's administered?
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A.
No, but I would like to be.
Q.
Are you on conference calls internally at Twitter about
how they administer misinformation, their misinformation
policy?
A.
No.
Q.
So you have no insight whatsoever on the internal
machinations of the Twitter discussions, e-mails and the like,
you have no insight on that stuff?
A.
I wouldn't say that.
Q.
You would say that?
A.
I have plenty of insight. I'm on the platform. I pay
attention. Things, they talk. There's discussions. I have
insights. Why can't I have insights?
Q.
Let me rephrase. When I use the word insight, you have
no knowledge about the discussions within Twitter?
A.
I have no insider knowledge.
Q.
Got it. Do you have data on the number of people who
are subject to disciplinary actions by Twitter every month
since the start of the pandemic?
A.
I have attempted to acquire some of that data. It is
protected. I have a lot of anecdotal data.
Q.
You don't have comprehensive data on the number of
enforcement actions Twitter has taken against people under
their misinformation policy month by month from the start of
the pandemic?
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A.
I do not.
Q.
So you would have no reason for knowing that it was X
when the pandemic began, Y the month after that, Z the month
after that. You wouldn't have that knowledge?
A.
No. I have a lot of knowledge because I'm on Twitter
and I see people being suspended.
Q.
Let me rephrase, Mr. Kotzin. You don't have any
knowledge about the precise number of people who are subject to
disciplinary actions by Twitter every month, month by month
from the start of the pandemic under their misinformation
policy?
A.
I only have general knowledge. I do not have precise
knowledge. That is correct.
Q.
Are you aware that Twitter has had a misinformation
policy since early 2020?
A.
No, but I believe you.
Q.
You mentioned that your first successful tweet was in
December 2020. I know that that term is a little bit hard to
define. When you say successful, is it fair to say you mean a
lot of people saw it?
A.
I believe it was in order of magnitude more successful
than any other tweet.
Q.
To the extent you can provide any more precise of a
definition, just for the purposes of my next line of
questioning. What would constitute successful? Is there a
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threshold? I understand if it's not.
A.
We can easily say if it had 1,000 retweets at that time,
it was very successful.
Q.
When was your next successful tweet after December 2020?
A.
Probably a month or two after that.
Q.
Okay. So it would be early 2021?
A.
Yeah.
Q.
What about -- how many successful tweets do you think
you'd say you have, let's say, from September 2020 to the
present?
A.
Let's say 10 to 20.
Q.
Ten to twenty. How many followers did you have in
September 2020, do you recall?
A.
I'm not totally sure. But I believe it would be about
500 then.
Q.
Five hundred in September 2020?
A.
That's a guess, yeah.
Q.
How many in January 2021?
A.
If it was 500 then, it would have been 1,000 more. It's
pretty steadily gone up.
Q.
So you'd say every month your number of followers got
higher and higher?
A.
Yes.
Q.
So is it fair to say that it was higher in March of 2022
than it was in September of 2020?
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A.
Definitely. Much higher.
Q.
So you're saying that in, let's say, December of 2021,
was the number higher or lower than March of 2022, probably
lower than, right?
A.
December 2021 was lower than March of 2022.
Q.
But higher than September 2020?
A.
Definitely.
THE COURT: Basically it's been going up.
THE WITNESS: It's been steadily going up. I might be
confused about each month how many, but every month it was more
than the prior month.
BY MR. CHOLERA:
Q.
So is it fair to say that when you made these earlier
posts you were just -- I asked about in your direct examination
back from the start of the pandemic to let's just say
September 2020, and maybe even after December, but for the
purposes of this question, start of the pandemic
September 2020, you didn't have a whole lot of followers?
A.
Correct.
Q.
And then you started to get more followers?
A.
I was always getting more. It was from the beginning,
each month was more than the last from the beginning.
Q.
Okay. And when would you say you broke the 5,000
follower mark?
A.
I'm going to say probably spring of '21.
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Q.
Spring. Can you give us a month?
A.
No. If you want a more precise data, it would take me
five minutes to find. It's hard. A two-year span, it's years.
I'm doing the best I can. What I can guarantee you is each
month was more than the last. That I can guarantee.
Q.
And you mentioned that you moderated your speech after
September 2020, right?
A.
September 2021, I think we're talking about.
Q.
I'm sorry, September '21.
A.
2021. Correct. After September 2021, moderated is your
word, not mine, there was certain content which I didn't post
about or researched and the content I did, I tried to present
some of it in a more oblique fashion.
Q.
So to go back, so we say spring of 2021, you say, is
when you really kind of hit your stride in terms of your number
of followers?
A.
Sure. That's a fair enough characterization.
Q.
And then September 2021, is when you suffered that
enforcement action that we discussed?
A.
Correct.
Q.
And then March of 2022, you even had more followers?
A.
Correct.
Q.
And you said you suffered another enforcement action?
A.
Correct.
Q.
So it's fair to say as your followers went up, you
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started to suffer enforcement actions?
A.
Do you have data to support that?
Q.
The answers you've given me, Mr. Kotzin. Whatever
you've told me. Is it not true that you told me that in 2020,
when you were posting about these things you weren't getting
enforcement actions, you just didn't have that many followers.
You got a bunch of followers in spring of 2021, all of a sudden
you're suffering suspensions. I'm just asking you based on the
timeline you've given me, is it not fair to say that you
started to suffer more and more suspensions as your number of
followers went up?
A.
No. We said number of followers went up in spring and
the suspension was September. That's six months later. It's
not fair to say, no.
Q.
So you don't think --
A.
Based on --
Q.
If I drew the two lines, you don't think they would be
roughly pale?
A.
No. One line like this, suspension, suspension,
suspension. No correlation. Do you want me to draw it for
you?
Q.
I'm well aware, Mr. Kotzin. You were let back on
Twitter, correct?
A.
Yes.
Q.
It's interesting, did anybody at Twitter tell you
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despite the government forcing us to do this, we're letting you
back on?
A.
Not word for word, no.
Q.
But you just testified to the Judge that you think the
government is forcing Twitter to do this. If they're forcing
Twitter to do this, why would they let you back on?
A.
They're going to kick me off soon. They want me to
moderate. They want to control my content. Twitter does not
have an interest in kicking people off. They're a business.
Each person they kick off is one less consumer. Their whole
brand is by letting people go on and express themselves. Each
time they kick someone off, they hurt their brand. Competitors
are being open and people are going to them. Twitter is a
company who has no interest in ever suspending an account that
is generating viewers and followers. Why would they do that?
Q.
Mr. Kotzin, have you interviewed a significant number of
people on Twitter? By significant, I should give you a little
more meat. That's my fault. Have you interviewed, let's say,
100,000 people?
A.
I don't understand your question.
Q.
Have you interviewed 100,000 Twitter users to speak
about experiences they've had with respect to disciplinary
actions taken by Twitter?
A.
I have not interviewed 100,000 Twitter users.
Q.
Do you want to know roughly how many users there are on
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Twitter?
A.
Sure.
Q.
I'm not even on Twitter, Mr. Kotzin. I'm just asking
you, do you know how many users roughly there are on Twitter?
THE COURT: Thanks to Elon Musk, we've all seen that
number recently, right?
BY MR. CHOLERA:
Q.
Exactly. Now with the New York Times reporting. It's
in the multiple tens of millions, correct, Mr. Kotzin?
A.
I would assume even more.
Q.
That's what I would assume.
THE COURT: It's under a billion is what I think is
correct.
THE WITNESS: They like to make the number as big as
possible.
BY MR. CHOLERA:
Q.
I think all the social media sites would like to do
that. So you don't know whether -- let me take that back. You
are not prepared to testify here today before the Court that
there were no users on Twitter who are posting things similar
to you who were not subject to disciplinary actions from the
start of the pandemic to, say, the end of 2020?
A.
On my personal information and belief, I never heard of
anyone getting suspended by Twitter for COVID-related matters
before summer of 2021. It only started happening after Jen
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Psaki said to do it. We all saw it happen. They started
suspending and kicking people off. We saw it. It happened in
front of our eyes.
Q.
That wasn't my question to you, Mr. Kotzin. My question
to you is -- wasn't what have you heard. My question to you is
you are not prepared here to testify to the Court that you know
that there is nobody else on Twitter, nobody, from start of the
pandemic to the end of 2020, you cannot say that there's nobody
else who posted things like you but who were not subject to
disciplinary actions? In other words, it's possible there were
other users who were posting things like you who were subject
to disciplinary actions from the start of the pandemic to the
end of 2020?
A.
No.
Q.
It's not possible?
A.
Highly unlikely. I knew most of the people that were
posting this content. We are a very small group in the
beginning. I knew we were the antiCOVID Twitter. I knew them.
Q.
So your testimony here is that you know of every single
person who was criticizing COVID-related vaccines, treatments,
social distancing, you know all of them on Twitter? What's
your basis for that statement, Mr. Kotzin?
A.
I said it was highly unlikely but possible. It's a
community. You communicate with each other. So I didn't need
to know them directly. When someone is suspended, first of
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all, they disappear. The only way you know about it -- we have
a little network. We say like last week, Eli Cline was
suspended. People pass around, hey, Eli Cline was suspended.
That's how we know. Because the person has disappeared when
they're suspended. They're not there.
Q.
Mr. Kotzin, I'm going to repeat the question one more
time. I'm not asking for speculation. I'm asking you for what
you know. And my question to you is do you know, can you tell
the Judge, do you know of every single person on Twitter from
the start of the pandemic who has posted something that is
critical of COVID-related protections, vaccines, treatments, do
you know all those people?
A.
I do not know every single person on Twitter.
Q.
You do not. So it's fair to say, once again, you cannot
conclusively tell the Court that nobody was suspended from the
start of the pandemic to the end of 2020 because they posted
things similar to the things you posted in 2020. You can't
conclusively tell the Judge that?
A.
I can't conclusively. All I can say is the community of
Twitter users, of which I am a member, is unaware of anyone it
happened to before summer of 2021, and we are aware of many
people it happened to starting in summer of 2021. So it's a
conclusion reached by a community of people. Maybe there's
others that didn't join our community. But if you're not in
the community, there's no point in being on Twitter. What
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you're saying is possible but extremely highly unlikely.
MR. CHOLERA: This will probably go away but I move to
strike to the extent it invokes hearsay regarding what other
people in a hypothetical community.
THE COURT: I've not been clamping down tightly on
this but when it comes to weighing the evidence, trust me, I'm
only going to depend on admissible evidence.
MR. CHOLERA: I have no further questions, Your Honor.
THE COURT: Thank you.
Redirect?
MR. VECCHIONE: No redirect, Your Honor.
THE COURT: Mr. Kotzin, thank you very much. You may
step down. If you like, it's up to you, you can stay in the
courtroom. You're not going to be recalled by the government.
Thank you.
And the plaintiff may call the next witness.
MS. YOUNES: We call Mark Changizi.
THE COURT: He will come forward.
(Witness sworn.)
THE COURT: Ms. Younes, whenever you're ready, you may
proceed.
MS. YOUNES: Thank you, Your Honor.
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- - -
MARK CHANGIZI
Called as a witness on behalf of the Plaintiff, being first
duly sworn, testified as follows:
DIRECT EXAMINATION
BY MS. YOUNES:
Q.
Good morning, Dr. Changizi. Can you tell us about your
educational background starting with college?
A.
Yeah. I was a physics math undergrad and the point of
doing that was so that some day I could answer the questions to
the universe more concerning neuroscience, cognitive science,
big kind of questions. I needed those under my belt. Ph.D.
was in applied math. But then I went on to cognitive science,
neuroscience kinds of things that university college core
professor in computer science, Duke University in neuroscience,
psychology, Caltech as a theoretical neuroscientist. And a
professor of cognitive science at Rensselaer Polytechnic up in
Troy. Then I started my own research institute in 2010 called
2AI labs and have been sort of a publicly-facing intellectual
since early 2000s. I'm on my sixth book is coming out this
year.
I research in a varieties of areas. All over the place.
From why your fingers get pruny when they're wet, their rain
treads to why we see in color. They're actually optimized to
see blood and health and motions on their skin to more emergent
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phenomena like how we came to have language and music to the
next book which is on the origins of emotional expressions and
the importance of free expression. All kind of
theoretical/empirical kinds of studies.
Q.
Where did you get your degrees from?
A.
Undergrad physics math at University of Virginia. Math
Ph.D. at University of Maryland College Park.
Q.
And what's your latest book on?
A.
Expressly Human: Decoding the Language of Emotion is on
why we have the sweet emotional expressions that we do, how
they function. And how they also function as the atoms or the
grammar underlying how social networks, social media networks,
how society itself slowly changes people's reputations rise and
fall through these complex expressive processes, arguments,
debates, interactions so that we have those around us for a
high reputation by virtue of being right many times, through
expressive arguments and somewhere low. It's through that
process that both science as a special case and society
generally slowly moves towards the truth.
Q.
So going back to March of 2020, can you tell us what
your views were about COVID and the government response to it?
A.
Yeah. So in March 10th, I had pinned -- as of
March 17th I've had pinned -- pinned means at the very top of
your Twitter so it's always at the top of your stream. So new
stuff always comes below it. It's always there.
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As of March 17th, I remarked that to the effect of
this -- the most dangerous thing for society is sort of a
collective hysteria or sort of a pandemic of memes or ideas
that can flow through the populous and the hysteria, not a
biological pandemic. I could tell that this was becoming kind
of collective hysteria and people were acting very
irrationally. I said, I've got to come out. All of the
scientists that I look up to are completely being irrational
about this and have completely, any attachment they had to
civil rights, civil liberties was being thrown under the bus
within the first -- by March 11th.
Q.
Did your educational and research background influence
your views on COVID?
A.
Yeah. I think in, at least, three ways. I think as a
psychologist, cognitive scientist, I have a lot of experience
with cognitive biases and understanding the kind of mistakes
that people make, that we're all prone to make unless you're
very, very self-aware of it. I also -- good at understanding
sort of emergent level phenomena.
A lot of times you might see there's someone that's
doing this to us. Who's doing this? It's the great research.
Who did this? No, it doesn't need to be anybody that does it.
These are emergent effects that happen by virtue of large
numbers of people and they just happen on their own like a
ouija board but with a million fingers and you can explain a
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lot of the effects that are seen like there's somebody out
there to get you or somebody pushing this is just the results
of large numbers of people acting the ways that networks do.
And as a third thing, as I've always tried to be aloof,
both scientifically and politically, I'm moving from field to
field and I know that my own biases would trap me and I think
by virtue of being aloof in the ways that I tried to be, it let
me stay -- not get swept up because I would have been equally
swept up as anybody else if I had been attached to the same
kind of high reputation people that suddenly thought this was
the most dangerous thing ever and we've got to overturn
society. I would have been right there with them if I hadn't
kept that kind of aloofness as a scientist I needed to keep.
Q.
So you referred to your Twitter account. You have a
Twitter account, obviously. When did you start it?
A.
I think it's from 2009 or so.
Q.
And as of March 2020, approximately how many followers
did you have?
A.
Several thousand. Most, I would say half were probably
bots. I was using it here and there over the years. As a
writer, popular books that are all about my research,
publishers now tell you, get an account, your job is to be the
PR person as well as the publisher. I would be there just
talking about science, research, interacting with science
journalists. It was fairly inactive and semi-dormant,
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semi-used but no real impact.
Q.
And how many followers do you have today, approximately?
A.
About 37,000.
Q.
And how would you define or determine what's an
influential Twitter account? Is it just by the number of
followers or are there other indicators?
A.
Certainly the first order. But any of us can open an
account today and suddenly follow 100,000 people by tomorrow
and 80 percent of them sometimes might just follow you back.
You can suddenly have 80,000 followers tomorrow. But you have
no sway, you can't really get any impact from your tweets
because those followers are not paying any attention to you.
You're not a big person in terms of their account. Key is --
So the first order, that would be a good predictor the
number of followers that you have. In reality, it's more
complicated. In reality, even when I only had 5,000, even when
I had grown just a little bit, I had 5,000 followers, which
again I think it was 3,000 nonbot followers, I was having
tremendous impact. I was already part of this early community
back in March of 2020, of these wide-ranging data scientists,
epidemiologists, medical folks and scientists like me who were
saying something is going off and so we -- and there's all
these people that glommed onto us. We were having tremendous
virality despite our relatively small size due to where we sat
within the network.
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THE COURT REPORTER: If you could please speak a
little slower.
THE COURT: When someone has to take down every word,
we all have to learn to talk a little slower.
You may continue.
BY MS. YOUNES:
Q.
So there's something called impressions on Twitter. If
so, what are those?
A.
The number of impressions for a tweet is just the number
of times it was seen by people. And I think it came up
earlier. To be clear, the number of impressions just isn't
from your own followers because your followers might be
retweeting it and others who are not following you can retweet
it and so on and so on. It can be mostly not your followers
who are actually seeing it.
Q.
And what was the focus of your account beginning in
March of 2020?
A.
COVID. Both the biological side, the collective
hysteria side, the psychology and emergent phenomena and civil
rights all connected to COVID. But, to me, it was just a
specific example of the kinds of dangers that society always
has had to deal with. It happened to be worldwide this time.
So, for me, this was sort of an excuse in some sense to say,
look, we need to have ways of understanding these kinds of
events because this is just one really dangerous, special case.
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Q.
Would you call your Twitter account as of today
influential?
A.
Yes and no. I'm sure you'll get there, but as of May of
2021, it's been severely throttled. So I'm down by a factor of
ten or more in terms of my --
Q.
What do you mean by throttled?
A.
What do I mean by?
Q.
Throttled.
A.
Throttled. So I mean that I have been so deboosted or
censored in more than one capacity. So there was more than one
way to censor and I don't know the full range of mechanisms
that Twitter has. But they -- it might be helpful if I go
back.
If you actually look back at my impressions starting
from January of 2020, and you plot the number of impressions
each month up until today or up until the end of March, you'll
see me rising from a very small number of impressions per month
and by the end of May of 2021, a year and a half later, I was
nearly at 20 million impressions per month or more. And it
turns out that it starts to fall, but I didn't even notice. It
wasn't until November or December of 2021, that I started to
feel like something is not right. I'm just not getting any
impacts anymore. I'm not getting the kind of feedback, the
kind of reactions, virality from my tweets that I had been. It
wasn't until February or March that I then said, let's go ahead
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and do this month by month number of impressions and then when
I did, I see that May was, in fact, the peak and then since --
Q.
You're talking about May 2021?
A.
May 2021 was the highest number of impressions, after
which it starts to fall kind of a very nice bell curve. It's
not a bell curve driven thing but it happened to look like a
bell curve, and it just starts to fall in June, July and just
falls and falls all the way down to March where it's at levels
of what it was in March or February of 2020. It's not just
sudden. They didn't just come in and say okay, let's do this
one -- one of their dozens of mechanisms for deboosting
someone. I don't know what they are.
They clearly decided we're going to slowly do this and
turn up the knob and start activating more and more of these
mechanisms to greater and greater levels of -- each one of
their mechanisms has more than one level you can set it at, I'm
sure.
These include, for example, on all -- for significant
numbers of my followers, when they see my stream, if they see
it at all -- first, they're not likely to find me. They say,
Mark, I haven't seen you in months. I didn't even know you
were still here. I don't come up on their stream. When I do,
it just has Mark Changizi, my little logo and a little
horizontal band that says, the content in here is sensitive and
you're not able to see it. And if you click here or you go and
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change your settings and something like this, you can then go
see it. But a lot of people never figured out how to do that
so that's all that they see. This is a page of this is
sensitive, this is sensitive.
It later changed to and this is adult content. Suddenly
I'm a porn service or something like this. They put -- somehow
changed the settings to even put me in that category.
And people who search on me say, where is Mark? They
start typing in Mark. If you type in Mark and I'm one of the
people that they follow, it often will just suggest like they
might follow four or five Marks. All the Marks will come up.
Mark C-H-A, now I'm certainly the only one. And then Chang,
I'm definitely the only person that they follow that's Mark
Chang. Still don't come up on Twitter. You've got to type in
Mark Changizi with a final I and finally there will be other
accounts like a temporary account that I once had that has my
name. And then it says see more on the bottom and then if you
click see more, then my name will pop up. For which it says,
are you sure you want to enter because this is a sensitive,
dangerous account.
So all the stops are being pulled out to make sure that
I'm not visible.
Q.
So have you ever been suspended by Twitter?
A.
Yeah. I think my first suspension was a twelve-hour
suspension in April-ish of 2021. And it was for posting a link
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to an article that was pointing out in effect efficacies and
harms of masks. A paper that was linked on the NIH -- NIMH
website.
Q.
And how long was that suspension?
A.
That was a twelve-hour.
Q.
And when was your next suspension?
A.
It think it was July. I don't know the reasons. The
place in the e-mail where they would say here are the tweets
that -- it was just blank. I don't know what went on there.
Q.
And when was your next suspension?
A.
By the way, the second was a seven-day suspension in
July. And the third was a permanent suspension December 21st
of 2021. And there it referred to two tweets. One of them
talking about natural immunity and asymptomatic transmission.
Saying, look, natural immunity is stronger than vaccine
immunity, which it is. Asymptomatic transmission is not a
major driver, which is true. Things along these lines. They
said I violated their terms and I'm permanently suspended.
Q.
Was there another tweet that was also --
A.
There was another tweet. There was two tweets. The
other one was -- if you can remind me what it was.
MS. YOUNES: May I?
THE COURT: You may.
BY MS. YOUNES:
Q.
This is from Exhibit B.
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A.
COVID. It said COVID is 10 to 20 times less dangerous
than flu for kids.
THE COURT: What page are you on? It should be the
bottom right.
THE WITNESS: Five of 36. COVID is 10 to 20 times
less dangerous than flu for kids, which is true. It's five
times more dangerous for adults. For older adults 70 and up at
the limits. So I said, get a grip. There's no long-term data
for the shot. Which is true because it's only been a certain
period of time. And even the short and medium-term data for
that age group are ambiguous at best. That's the first of the
two that got me permanently suspended.
And the second was asymptomatics rarely spread it.
Vaccinations don't slow spread. They don't. They may provide
some protection. It depends on whether there are any or
adenovirus. Unvaxxed posed no threats to the vaxxed. The
risks are broadly flu-like and safer for flu for those under 40
and a huge percentage of the unvaxxed have superior natural
immunity via recovery. That is, they've recovered. They've
gotten the disease, they've already recovered.
Both of these things are, I would argue, just clearly
true. At best, you could argue that -- they're best arguable.
I would say these things are clearly true.
BY MS. YOUNES:
Q.
You said you were permanently suspended for that?
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A.
Yes.
Q.
How is it you still have a Twitter account?
A.
I didn't plan on going back. A couple weeks later some
folks said, why don't you go ahead and appeal. It's good to
get an appeal in just so that you've lodged your case. So I
went ahead and did it after Christmas or on Christmas Day it
actually turns out, and appeal's in here, and without
explanation, they gave me back the account.
MS. YOUNES: Your Honor, if I may give Exhibits 1
through 8 to the witness.
THE COURT: You may.
BY MS. YOUNES:
Q.
Can you tell me what -- do you recognize Exhibit 1?
A.
Yes.
Q.
And what is it?
A.
This is -- the first plot that's shown on the left and
the right is showing what was published in --
Q.
I was getting at, in a very general sense, what is it?
A.
Okay. This is a tweet.
Q.
Who tweeted it?
A.
From me. This my tweet.
Q.
And what's the date?
A.
On May 13th, 2020.
Q.
And if you can just read, you don't need to explain
detail, but the general.
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A.
One example of the apocalyptic narrative communicated by
the media in March which caused the hysteria and lockdowns,
where media inappropriately compared flu infection fatality
rate, (IFR), and COVID case fatality rate, (CFR). So the short
story is that if you look at the top plot, on the left you have
flu, on the right you have COVID. On the left they're looking
at something called infection fatality rate. On the right
they're showing COVID but they're showing it for case fatality
rate which are always, in order of magnitude, are more higher.
This is what insider business review and all these other
places were publishing this. And this was actually what was
presented in Congress, the same kind of mistaken comparison,
apples and oranges comparisons. Which if you look at this,
it's going to freak you out. You ought to be freaked out if
you see this. It's looking like it's radically more dangerous,
COVID than flu.
When you look below, you've actually normalized it so
they're both about infection fatality rate. Then you see that
there's broad similarities.
Q.
How about Exhibit 2?
A.
So these are three tweets that are part of a longer
viral thread.
Q.
What's the date on that?
A.
Exhibit 2, this is April 27th, 2020.
Q.
And what do they say? You can be general.
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A.
So this was part of a 15 reasons why the arguments --
why lockdowns were never common sense. And so this became kind
of a viral thread. A thread is where you start and then you
link to the next one which links to the next one and they're
kind of -- it turns into a thread which then automatically
suggests the next one. So you can then do long pieces in some
sense like a blog or an article but it breaks it down to sort
of tweet-size, bite-size pieces. These were just the first
two, three of the 15 reasons.
The second reason was the literature reviews prior to
COVID-19 had little good to say about shutdowns. That was just
a link to one of these massive things. Here's what -- if a
pandemic were to ever happen, here's all that we know and they
basically said don't do shutdowns.
Three was almost no awareness of the impact on civil
rights as if emergency declaration suspension of rights, house
arrest, mass unemployment and business shutdowns is just
something democratic governments sometimes do. Which of course
prior to March of 2020, people would never even have thought
that. But suddenly it was obvious everybody should do it.
And four, just since it's here, there was no historical
precedent for putting the entire healthy population in
quarantine. Never before. Yet this was suddenly common sense
as of mid-March 2020.
Q.
And Exhibit 3?
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A.
This is the first sort of bullet or item in that 15
list.
Q.
The date is?
A.
The date is April 27th of 2020, part of that same
thread. Describing kind of what I had already mentioned before
going through the same plot that I pointed out that the
evidence was poor that COVID-19 was doomsday in the first
place. It has low IFR, and I linked to the Centre for
Evidence-Based Medicine at Oxford. The are not is around 2.3.
That means how transmissible it is and link to a paper which is
not so transmissible, it's not very different than others. Age
distribution is very similar to that of flu. I mean, it's
different but it's the first order it's roughly the same. It
hits those primarily with significant comorbidities. It should
say comorbidities there but I may have run out of space. And
it's safer for the young than is the flu. And I subtweet James
Todaro, MD, a tweet of his.
Q.
And Exhibit 4, can you tell us the date and the content
of that one?
A.
That's a tweet by me on November 30th, 2020. And I'm
just quoting here from a paper. The first randomized
cross-over study assessing the effects of surgical masks and
N95 masks on cardiopulmonary exercise capacity yields clear
results. Both masks have a marked negative impact on exercise
parameters. And a link to the NIH page where it is. Basically
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masks shouldn't be worn. Even if they work, they would cause
problems if you're doing exercise.
Q.
And Exhibit 5?
A.
This is a tweet of mine in May 18th. May 18th, 2020.
The hysteria quickly creates a religion, in quotes, accompanied
by moral outrage at rule breakers and the development of a
battery of arbitrary codes to follow. It's akin to Iran's
Islamic revolution. It can take a life of its own and can be
practically impossible to stop.
Q.
And can you do the same with Exhibit 6, please?
A.
A tweet of mine from October 14th, 2020. I refer to
Ioannidis. He's a famous -- probably one of the most famous
scientists of all actually on earth today and he's certainly
one of the most famous epidemiologists.
Ioannidis estimated IFR, infection fatality rate, to be
about .25 percent. This is similar to the mid-March estimates
from the Centre for Evidence-Based Medicine of .1 percent to
.3 percent. It's a nasty flu for those 50 and up, especially
with comorbidities. Safer than flu for young people. I link
to the study which was at the WHO site.
Q.
And Exhibit 7, please?
A.
This is a tweet of mine from November 22nd, 2020 and
it's titled asymptomatic farce. And this is a quote, there
were no positive tests amongst 1,174 close contacts of
asymptomatic cases. In other words, of the 1,174 people that
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were asymptomatic that they tested, none of them came back
positive as having it. So none of the asymptomatics actually
had the disease. Lockdowns, masks, social distancing are moot
even if they worked, which they don't. Symptomatic? Stay
home. As in 2019 and all years before. And then I'm referring
to this nature paper that I quoted from.
Q.
And the last one, Exhibit 8?
A.
A tweet of mine from November 18th, 2020, titled
breaking (and obvious). Random controlled trials show no
benefit to masks. And for COVID-19, the difference observed
was not statistically significant, in quotes, referring to the
study. And then influenza, quote, 14 RCTs, randomized control
trials, did not support a substantial effect on transmission.
And I have screenshots of these studies below.
Q.
So is it fair to say that you were tweeting very similar
content the entire time and you were not suspended until April
of 2021?
A.
That's right.
Q.
Thank you. Do you have other social media accounts?
A.
I do. I have YouTube, Instagram, Facebook and also now
competitors with Twitter, Parlor, Gab, Gitter and Truth Social,
and YouTube.
Q.
Did you notice -- you talked about a drop in impressions
and engagement with your account. Did you notice any similar
patterns across your other social media accounts?
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A.
The only other ones that I both have any following at
all and could check, I didn't figure out how to check Facebook
which I barely have been on. YouTube, I have a very similar
curve to my number of new subscribers. I have a YouTube
channel where I have videos that talk about science-related
things from my research and now COVID-related hysterias,
psychology, cognitive science related kind of things. And I
grew -- the number of new subscribers was growing and growing
and growing. Somewhere around summer, June, July of 2021, the
number of new subscribers that you see a similar kind of curve
falling then and following. A little bit more jagged because
the number of followers is a smaller number than the number of
impressions which are in the millions here. We're talking
about hundreds. So it's more sarcastic.
Q.
Did you ever attribute censorship of your social media
to the government publicly?
A.
Yeah. I certainly did. I was somewhere around --
Q.
Do you need Exhibit B to refresh your recollection?
A.
Exhibit B?
Q.
Yeah. Paragraph -- beginning at paragraph 31.
A.
Did you say a page number?
Q.
I guess it's page 7 at the top and then it's paragraph
31.
A.
On January 5th of 2021, I tweeted, it's actually
government censorship. Much of the reason why big tech is
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engaged -- that's part of the tweet. Much the reason why big
tech is engaged in censorship is pressure from government
itself. And so the premise at the start of this thread is
false. They're not acting as a private company but are a de
facto arm of the state.
Q.
Do you recall what prompted you to tweet that?
A.
Well, at the time I felt that it was surely the case and
I wasn't -- at the time I still thought it was a small
pressure. I presume these kinds of pressures potentially --
they're always worried about what the state might do. The
state might start to do any number of regulations. And so it's
always on their mind.
But really even then I said I think I presume that some
of this was going on but hadn't really been real, taken reality
to me until a few months later. I was more worried at the time
of just the attitudes that people had toward free expression
and not appreciating it. Just a general attitude of tolerance
which was missing in the debate and in the culture.
Q.
So did you ever discuss this again, for instance --
A.
Yes. Then it became real when Jen Psaki started just
saying unabashedly that we're working -- this was an article
that I wrote --
Q.
I would actually back you up to your May 5th tweet.
A.
Oh, yeah.
Q.
Paragraph 32.
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A.
Yeah. So I had tweeted a video of Press Secretary Jen
Psaki's May 5, 2021 speech and remarked, free expression alert.
Amazing. She specifically threatens big tech here to censor or
risk greater regulation.
Q.
And did you ever write an article on the subject?
A.
Yeah. I have a newsletter that comes out of my free
expression, my free speech research institute. It's big tech
censorship. This came out July 5th, 2021. Big tech censorship
is actually government censorship. And I cited her May 5th
talk and -- I don't know if you need me to recite the verbiage
that she did.
Q.
I think that's sufficient.
Did you ever tweet anything again, for instance, on
September 20th?
A.
I tweeted that Psaki's statement that, quote, you
shouldn't be banned from one platform and not others for
providing misinformation. And then she said, your federal
government -- this is me joking, your federal government who is
totally not directing big tech censorship and thereby violating
the First Amendment.
Q.
Are you aware of any, for instance, very recent
statements that Jennifer Psaki made on the subject?
A.
Yeah. Just earlier this week she reiterated the same
threats, actually even more before she had threatened antitrust
regulation is on the table, right in the very sentence or the
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very next sentence after saying that --
THE COURT: There's an objection.
MR. CHOLERA: Yes. Move to strike on grounds of
hearsay. To the extent there is some statement regarding Jen
Psaki that the plaintiffs want to refer to, they can just go
ahead and submit that itself directly.
THE COURT: This is what I was hoping we could achieve
through stipulation. It is hearsay. But I don't think the
government's denying that it occurred, right?
MR. CHOLERA: I just don't know the precise comment
that he's referring to. So we certainly -- we're not denying
she might have made some comments. I don't know if this
comment they're referring to --
THE COURT: Maybe when this hearing is over, you can
look at some statements and see if you can agree that they are
accurate and you both agree they're part of the record. When
we get it second hand, there's not going to be any
cross-examination, for example. And this way it will be
admissible which will help you but at the same time we won't
have a hanging chad, so to speak, in the middle of the record
here.
BY MS. YOUNES:
Q.
Did your belief about the government's involvement in
Twitter and other social media censorship and knowing the views
that you're expressing, did that cause you to do anything
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differently?
A.
Yeah. So my first -- somewhere around May of that year
before I realized I was actually being censored, starting then.
I chose not to talk about certain kinds of things because it
was clear to me that I couldn't talk about early treatments
and, again, I didn't even bother looking it up. What's the
point of looking these things up? I didn't talk about
vaccinations. I talked only about mandates concerning
vaccinations and about, let's say, the transmissibility, but I
didn't talk about whether or not how effective they were or
damages that they had or if I ever -- I would just flirt and
point in that direction.
And I started to, if I wanted to refer to a paper, I
would either start putting broken links so that they didn't
know I was referring to the real thing so you don't have to go
fix the spaces or I would do a screenshot. I was avoiding
certain topics and coming up with very circuitous ways of
getting people to the place that they needed to go to find
information themselves out of fear of losing my voice in the
public square.
Q.
And is there information that you have given to Twitter
or that you've exchanged on Twitter which you don't consider
public and you would not want the government to have access?
A.
Yeah, there's the obvious, the direct message side which
I've always presumed. A little bit more subtle than that is if
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the government, sure, all of my tweets are public. But it's a
very different thing if your name is passed on to the
government, you've got -- I've got 30,000, 40,000 tweets, maybe
more than 50,000 tweets. Effectively, it's impenetrable and if
they suddenly acquire an interest in me, suddenly they can make
the time to really make that transparent.
Q.
Do you use any messaging apps like Signal or Telegram?
A.
I do.
Q.
And when you send messages over Signal, Telegram,
Twitter, do you expect the government to have access to those
messages?
A.
I do not.
Q.
Do you have, on those sorts of platforms, do you have
different expectations of privacy than you would over e-mail?
A.
I mean, I kind of -- I expect them to be at least as
good, as safe as e-mail.
Q.
So if the government were to somehow magically bow out
of this whole thing, would that change your behavior on
Twitter?
A.
Yeah. I think it would. I would be very much relieved.
I'm fairly confident that it would probably go back to 2020
standards where suddenly we're free to say huge -- there's
maybe some new wall, some other wall that was out there but it
was very far from anything I was ever posting. I felt free as
a bird through all of 2020.
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MS. YOUNES: Thank you very much, Mr. Changizi.
THE COURT: Thank you. And cross-examination.
MR. CHOLERA: Your Honor, may I please have a
five-minute break?
THE COURT: Well, what we're going to do, I have
a 10:30 criminal matter that's going to take about ten minutes.
That will be just about right. You don't have to clear the
well. But I will see you back here at 10:40.
(Recess taken at 10:25 a.m. to 10:50 a.m.)
THE COURT: The defendants may have cross-examination.
- - -
CROSS-EXAMINATION
BY MR. CHOLERA:
Q.
Mr. Changizi, did I pronounce that right?
A.
Yes.
Q.
If you sat through the last cross-examination, I think
you already have a feel for what my first few questions will be
so hopefully we can walk through this fairly quickly. Did you
ever work at Twitter?
A.
No.
Q.
Have you ever interviewed an executive at Twitter or
anybody at Twitter whose responsibility it is to administer
their misinformation policies?
A.
No.
Q.
So nobody at Twitter ever told you that we're targeting
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your posts, Mr. Changizi, because the government told us to?
A.
No.
Q.
Did anybody at Twitter then tell you, we define
misinformation the way we do because we were instructed to by
the government?
A.
No.
Q.
Are you privy to internal e-mails circulated within
Twitter about how they administer their misinformation policy?
A.
No.
Q.
Are you on conference calls with people at Twitter who
are responsible for administering their misinformation policy?
A.
No.
Q.
Do you have data on all the people who are users on
Twitter who are subject to enforcement actions pursuant to
Twitter's misinformation policy from the beginning of the
pandemic to the present?
A.
No.
Q.
So you don't know how many people Twitter has suspended
under their misinformation policy from the beginning of the
pandemic to, say, December 2020?
A.
No. I wouldn't agree with that. I certainly don't have
the knowledge that comes with having 100 percent of the data.
Q.
That's what I'm asking you. Do you know for sure the
number of people they suspended from the beginning of the
pandemic?
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A.
Your last question was if you -- I don't recall the
exact way you phrased it was such that just because one doesn't
have complete knowledge doesn't mean one doesn't have
knowledge. Nearly all of us wouldn't have knowledge about
anything if that was the case.
Q.
I'm not trying to make a vague epistemic point. My
question is do you have knowledge, do you know the number of
people that have been subject to disciplinary action under
Twitter's misinformation policy from the beginning of the
pandemic to the end of 2020?
A.
I do not.
Q.
So you don't know how many people they suspended in
March of 2020 under their misinformation policy?
A.
No, I do not.
Q.
Or April of 2020?
A.
No, I do not.
Q.
May of 2020?
A.
No.
Q.
So you actually don't have any firsthand, conclusive
knowledge over the rate of suspensions that Twitter has engaged
in from the beginning of the pandemic to the present?
A.
Again, that doesn't follow from what I said. One can
have sarcastic, indirect information about each of those months
on the basis of observations that are probabilistic and can be
a good probabilistic strong sense that don't come from absolute
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knowledge, complete knowledge month by month.
Q.
I'm asking for absolute knowledge.
A.
Well --
Q.
Is the answer no, Mr. Changizi?
A.
Then none of us know absolutely anything. So I say no
to your final question. I reject your final question and yes,
I do have knowledge but I don't have God-like knowledge.
Q.
Why don't we put it this way, Mr. Changizi. How many
users on Twitter did you interview from the beginning of the
pandemic to the present to see what their experiences have been
under the misinformation policy? Did you interview 100,000
Twitter users every month from the beginning of the pandemic?
I agree I'm not asking for your God-like knowledge. Certainly
if you're professing this much knowledge, did you conduct a
statistical analysis, Mr. Changizi?
A.
No. I didn't --
THE COURT: Let me intervene. So you have, by using
Twitter, you have some familiarity with some people, maybe a
large number of people who have been suspended or not suspended
but you don't have any data behind that other than your
personal use of Twitter. Would that be accurate?
THE WITNESS: My personal use of Twitter and the
consequences of that as being both part of a community of tens
of thousands of folks which themselves are part of a greater
community. So the information flows within Twitter provide a
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lot more knowledge than the number of interviews and personal
conversations that I've had with other direct Twitter users.
That's the whole point of large networks is you end up with
information that goes beyond your first layer of network that
you're attached to. You're getting information by virtue of
the whole network. Through that, there's been a lot of
knowledge of another kind, a much more subtle and complex kind
than, in fact, all of us in real life deal with that has
provided all of us with clear data that nobody on the other
side has been censored throughout and there's been a clear
uptick in censorship at all levels somewhere around late April,
early summer of last year.
BY MR. CHOLERA:
Q.
None of that answers my question to you, Mr. Changizi.
Let me try again. Except maybe the first part where you
answered no, you have not conducted interviews.
So you mentioned tens of thousands of people. Your
testimony is here, under oath, that you know conclusively the
personal experiences of tens of thousands of Twitter users and
whether they have been suspended and the rates at which they
have been suspended from the beginning of the pandemic to now?
A.
No. I am saying I definitely do not have the kind of
rigorous data that you were suggesting. And I would love to
have, yes.
Q.
I'm not asking about rigorous data regarding the whole
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Twitter platform and every user. I'm just asking what number
of people can you say conclusively I know their experiences on
Twitter, I know that they've been on Twitter since the
beginning of the pandemic, I know that they've been posting
this stuff and I know what disciplinary actions they've been
subject to from the beginning of the pandemic to the present.
Can you give me a number?
A.
The number for whom I would say I'm familiar with, it
could be -- there could be probably extending to thousands of
folks for whom I have a very good sense --
Q.
I'm not asking good sense. I'm asking --
THE COURT: He's not done. Finish your answer.
THE WITNESS: I have a very good sense of the degree
to which they have or have not been censored throughout the two
years.
BY MR. CHOLERA:
Q.
I wasn't asking for a good sense, Mr. Changizi. I take
your point. You don't know about everyone on the platform.
I'm asking for the number of people that you know, you know
what their experiences have been with respect to disciplinary
actions under the misinformation policy. That is my question.
Can you give me a number on that?
A.
The number of people for whom I know, it probably -- I'm
more directly familiar and are probably with at least 100 folks
I'm directly familiar with, we communicate all the time.
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Q.
So 100 people among tens of millions of people?
A.
One hundred people that are among the top leaders in
this movement, yeah. They're not just your everyday person.
Q.
Are you aware that Twitter has had a misinformation
policy since early 2020?
A.
I would be surprised if they haven't had one for ten
years.
Q.
You mention that you were let back on Twitter after you
appealed; is that correct?
A.
Yes.
Q.
And what did they tell you when they let you back on?
A.
Nothing.
Q.
They just let you back on?
A.
Just said your account has been reactivated.
Q.
What did you tell Twitter in order to get back on?
A.
I have a statement that I provided to them saying it was
more of a philosophical free expression kind of point about how
they're making a mistake in engaging this kind of behavior.
Q.
Can you provide a little more information to the Court
on what you said and the specific argument you made to Twitter?
A.
It's probably not in this batch.
MS. YOUNES: May I give the witness --
THE COURT: You may. To the courtroom deputy.
THE WITNESS: Yeah. I appealed the suspension on
Christmas Day. And on that day I wrote, you have permanently
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suspended me for speaking out as a scientist concerning the
evidence-based dangers of COVID and the efficacy and ethics of
the interventions. Ironically, I'm one of the few scientists
studying the importance of free expression and how it is an
absolutely crucial part of the mechanism society and science
uses to stumble toward the truth.
I'm an academic with a number of well-known discoveries.
My sixth book appearing in a few months and also perhaps the
only person arguing against the interventions that understands
there was no plandemic and has tried to educate people against
their bias towards conspiracy theory thinking.
You've made a huge mistake in suspending so many voices
including mine. And that is true whether or not what we're
saying is true. Of course, I believe my statements are true
and always provide argument and evidence. Remember, nearly
every journal article in the academic literature is false but
that doesn't mean it gets canceled. It is part of the truth
discovery process itself. Don't become part of the problem by
encouraging censorship and groupthink.
BY MR. CHOLERA:
Q.
So is it fair to say that in your note to Twitter you
defended your statements, you indicated that it was not
misinformation, you pleaded with Twitter about the way in which
they're administering their misinformation policy and they went
ahead and let you back on the platform?
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A.
Yes.
Q.
Would it be fair to say Twitter had discretion to let
you back on their platform?
A.
Yes.
Q.
You mentioned YouTube before. Have you ever worked at
YouTube?
A.
No.
Q.
Any knowledge of their misinformation policies, how they
go about policing misinformation?
A.
Not directly.
Q.
Have you spoken to anyone at YouTube about their
policies of policing against misinformation?
A.
No.
Q.
Same question, have you been privy to internal
discussions, copied on internal e-mails about it?
A.
No.
Q.
You mention that you would change your personal behavior
with a favorable ruling in this case. Do you know who the
defendants are in this action?
A.
The Department of Health and Human Services, yes.
Q.
Who else?
A.
Surgeon General.
Q.
And the Secretary of the Department of Health and Human
Services?
A.
Okay.
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Q.
Those are the three defendants?
A.
Yeah.
Q.
You mentioned before certain comments made by other
government officials. Your testimony is that if there was an
injunction against the three defendants in this action, you'd
feel comfortable posting again on Twitter?
A.
Well, I'm not a legal expert to know whether even if we
were 100 percent successful here, exactly fully what that
entails in terms of the degree to which the government can
continue to do what they've been doing. Actually, I'm not
entirely sure. But once I get clear, if it's clear to me that
the federal government can no longer intimidate and threaten
us, as I believe they have, then yeah, I would feel much freer.
Q.
So I think it's fair to say when you were asked could a
favorable ruling help you, you just don't know yet?
A.
Well, I'm always -- of course, I'm hoping -- certainly
it's going to help me. It's one step toward helping me. I
don't fully know the degree to which the government can still
side step. There's so many legal things that I'm worried about
they can still do.
Q.
My question to you doesn't go to the objective factors
of what the government is doing. It's just your own subjective
view of it all. It's fair to say that you have subjective fear
that goes beyond the defendants in this action?
A.
They concern primarily those actors, yeah, that have
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been the ones that I believe have been making these threats and
intimidations.
Q.
Have you spoken to Twitter or any social media platform
about how they plan or if they plan to respond to the request
for information from the Surgeon General and if they do, what
information they're going to provide?
A.
No.
Q.
So nobody from Twitter has told you, Mr. Changizi, we're
about to turn over your name to the Surgeon General?
A.
Correct. No.
Q.
And nobody's told you, Mr. Changizi, we're about to turn
over your direct messages?
A.
Correct. No.
Q.
Has anyone told you that your information is about to be
produced to the Surgeon General?
A.
Nobody has specifically told me that. But given that
I'm a leader in this movement and they're asking for basically
the leaders of misinformation, I exactly expect my information
to be handed over.
Q.
Am I correct that you stated that your first suspension,
and correct me if I'm wrong here, happened in April 2021?
A.
Yes.
Q.
I was looking at the bottom of some of these exhibits,
and you certainly don't have to go through all of them. I
wanted to touch on a question that the Judge had actually asked
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before. We see these little icons at the bottom. One is kind
of like a little chat bubble. The other one are two different
arrows which I've been told means -- is that a retweet?
A.
The first one is a comment, number of comments. Second
one is just there's two kinds of retweets you talk about and it
just sums up both of those and ignores the differences. Third
is just likes. The fourth little arrow up is if you want to
save the -- copy that link so you can link to it elsewhere.
Q.
Understood. And then the heart is just someone saying
they like your post. Am I right?
A.
Correct.
Q.
So, for example, if we were to look at what's labeled as
Exhibit 6, you have ten hearts, five retweets, one comment
bubble, correct? And that's a tweet from October 14th, 2020?
A.
Uh-huh.
Q.
Then we look at this which is labeled as Exhibit 1 and
it's a post on the back of Exhibit 1, a tweet from
December 2nd, 2020. Do you see that one?
A.
Uh-huh.
Q.
And now we look in, you have the little heart symbol and
it's about 1600?
A.
Uh-huh.
Q.
Would you say that your following grew over time?
A.
Yeah. From March 2020 up until about May of 2021.
MR. CHOLERA: I have no further questions, Your Honor.
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THE COURT: Thank you.
Any redirect?
MS. YOUNES: Yes, Your Honor. Just a couple.
THE COURT: You may.
- - -
REDIRECT EXAMINATION
BY MS. YOUNES:
Q.
Are there degrees of knowledge, in your opinion? Does
one either know something certainly or doesn't know it at all?
A.
There's degrees. In fact, one of my seminal or early
parts of my dissertation is exactly about understanding exactly
how to justify and mathematically understand with what are
called prior probabilities, posterior probabilities. Exactly
that kind of issue.
Q.
So what degree of knowledge would you assign your belief
that more people were suspended subsequent to the government's
public campaign?
A.
I'd say something like we're 100 percent is the --
there's an arbitrariness to the answer to this question which
is 100 percent being amongst nonmathematical things that
gravity works. I might say let's say 80 percent in terms of
kind of sociological knowledge.
THE COURT: There's an objection. Let's go back to
the Rules of Evidence. This is an interesting discussion, by
the way. Part of a job of a fact finder, in this case this is
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me, is to only rely on evidence that's admissible. So it has
to be firsthand knowledge under the evidence rules and I think
the witness -- that's why I asked the question. He has
firsthand knowledge of people he's seen on Facebook get
suspended and he can testify to that and the broader question
of how many people that would include. But as far as
statistics, he's already told us he doesn't know.
So we'll leave the theoretical question aside. But I
think -- I don't think there's a dispute about what I just
summarized to be what his knowledge base is.
You may continue.
BY MS. YOUNES:
Q.
As far as the question about whether or not a favorable
ruling would change your behavior, that was sort of discussed
more in the speech context. But what about a favorable ruling
in terms of the Surgeon General no longer being able to get
your information from Twitter or other social media platforms,
would that change your behavior?
A.
Well, certainly. I might be inclined to destroy out of
fear of what they might do, once they start hyperanalyzing,
they can use this for whatever means they want. And you can
never know what the government will use information about you
for. So it could motivate me. Maybe I should go through and
scan through and search through anything that they might
consider bad, unclean speech or something of this kind that
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could be used against me. I don't want to -- I'm not the kind
of person that scrubs old speech. I want it out there as part
of a record of which I also use as part of my external memory
in some sense. I use it. Its being there is important to me.
MS. YOUNES: Thank you. No more questions, Your
Honor.
THE COURT: Thank you.
Any recross?
MR. CHOLERA: No.
THE COURT: Doctor, thank you very much. You may step
down.
Any additional witnesses?
MS. YOUNES: No, Your Honor.
THE COURT: Any witnesses from the government?
MR. CHOLERA: No, Your Honor.
THE COURT: The last thing let's just talk about.
There was some testimony regarding I believe it's the White
House Press Secretary. Do you think you can reach a
stipulation with regard to that?
MR. VECCHIONE: May I, Your Honor?
THE COURT: Yes.
MR. VECCHIONE: So the easily spelled and
pronounceable Mr. Carson has run out to get a copy of that and
we hope to meet with the government momentarily and see.
THE COURT: We just don't want to be chasing down
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things that are not in dispute and may or may not have anything
to do with how the case is decided.
MR. CHOLERA: I just haven't seen the document, Your
Honor. So I mean, I guess we're treating it as almost a notice
of supplemental authority. Obviously they want to submit it,
they can submit it and we would just ask if we have a chance to
review it and we believe there has to be some context or
clarification that we be permitted to submit something on that.
I don't know what this document is.
THE COURT: We can spin a lot of wheels here. We can
brief whether this is under 803(8) a public record. You don't
want to do that. So if it's something that's not in dispute, I
would suggest you try to agree to it.
Then my question becomes, does that close the record for
our purposes on the preliminary injunction?
MR. VECCHIONE: Yes, Your Honor.
THE COURT: All right. I'll do this as a compliment.
You heavily briefed this already. The facts you've educed
today helped me understand what's at stake here. But I don't
see any real point for any additional briefing or argument, do
you?
MR. VECCHIONE: Your Honor, if the Court has no
further questions of the attorneys, we are fine to waive
argument. You have a lot on your plate.
THE COURT: I never make a good Court of Appeals Judge
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because I think you've made all the points you're going to make
in your briefing. And I've read them all thoroughly. They're
well briefed on both sides. So we'll close out the record
factually. And then we'll get to work on an opinion and you
can expect that hopefully forthwith.
Anything else we need to address?
MR. CHOLERA: Nothing from us, Your Honor. And thank
you for your time. I did want to say thank you for the
accommodation when I sent the e-mail or when I notified you
that my spouse has COVID. I took a test yesterday. It was
negative. Obviously I know that a lot of things can vary but I
just wanted to be very candid with the Court.
THE COURT: Appreciate that, and hope your wife is
well.
Thank you. All right. If there's --
MR. VECCHIONE: We're fine, Your Honor.
THE COURT: Very good. With that, we'll be in recess.
Thank you.
(Proceedings concluded at 11:15 a.m.)
- - -
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C E R T I F I C A T E
I, Lahana DuFour, do hereby certify that the foregoing
is a true and correct transcript of the proceedings before the
Honorable Edmund A. Sargus, Jr., Judge, in the United States
District Court, Southern District of Ohio, Eastern Division, on
the date indicated, reported by me in shorthand and transcribed
by me or under my supervision.
s/Lahana DuFour
Lahana DuFour, RMR, CRR
Official Federal Court Reporter
June 8, 2022
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Case: 2:22-cv-01776-EAS-CMV Doc #: 39 Filed: 06/08/22 Page: 82 of 82 PAGEID #: 488File and source
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