On Wednesday, a published appellate opinion said that Twitter Inc.’s preemptive suit against Texas Attorney General Ken Paxton was just that, premature. The complaint, originally filed in the Northern District of California last March, sought to challenge an investigation Paxton launched allegedly to retaliate against Twitter for content moderation decisions it made following the attack on the U.S. Capitol last January.
The messaging platform sought declaratory and injunctive relief that would effectively halt the investigation and any attendant consequences, arguing government retaliation for speech protected by the First Amendment.
The Ninth Circuit’s opinion explained that once Twitter permanently banned President Trump from its platform, Paxton reportedly tweeted that Twitter and Facebook were “closing conservative accounts,” and that they and other companies were “ready/willing to be the left’s Chinese-style thought police.” Allegedly, he further vowed to “fight them with all I’ve got.”
Shortly thereafter, Paxton’s office served Twitter with a civil investigation demand (CID), requiring it to produce various documents related to its content moderation decisions, but without penalty for noncompliance. According to the defendant, it was strictly investigating whether Twitter truthfully represents its moderation practices to Texans. The court wrote that “Twitter paints this rationale as a pretext for Paxton’s unlawful retaliation.”
The opinion considered whether Twitter lodged a viable constitutional challenge to the attorney general’s actions. In a 20-page decision, the court affirmed dismissal of the case as “not prudentially ripe” for several reasons.
The opinion said that the issues were ill-suited for judicial determination because Paxton’s office has, to date, not yet made an allegation against Twitter, the facts were underdeveloped, and Twitter need not comply with the CID, could challenge it if it were enforced, and could have challenged it in Texas state court.
The court then considered whether the appellant would suffer hardship as a consequence of withholding court consideration, concluding that “[a]ny hardship to Twitter from the alleged chill of its First Amendment rights is ‘insufficient to overcome the uncertainty of the legal issue presented in the case in its current posture.’” The panel opined that forcing Paxton’s office to litigate the case would be unfair as it would have to do so in a “defensive posture in a different jurisdiction, without being able to investigate its own potential claims.”
Twitter is represented by Wilmer Cutler Pickering Hale and Dorr and Paxton by the Office of the Attorney General of Texas and Lewis Brisbois Bisgaard & Smith LLP.