SAN FRANCISCO (CN) — Blocking a Texas probe into Twitter’s content moderation practices could hobble the power of attorneys general to investigate a vast swath of state law violations, a Ninth Circuit panel ruled Wednesday.
In refusing to revive Twitter’s lawsuit against a purportedly retaliatory state investigation, three Ninth Circuit judges concluded that such a move could have far-reaching impacts beyond the realm of social media.
“Allowing this case to go forward would limit many legitimate investigations, because they could chill First Amendment rights,” U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, wrote for a unanimous panel.
Twitter sued Texas Attorney General Ken Paxton in March 2021, claiming his demand for internal documents on Twitter’s content moderation policies was intended to retaliate against the platform for banning former President Trump in the aftermath of a deadly insurrection at the U.S. Capitol on Jan. 6, 2021.Three days after the riot, Paxton tweeted, “BigTech hates free speech. As we enter the Biden era, they stand ready/willing to be the left’s Chinese-style thought police. As AG, I will fight them with all I’ve got.”
Twitter claims Paxton’s investigation into whether it “truthfully represents its moderation policies to Texas consumers” is tantamount to government retaliation against a private entity for exercising its First Amendment rights.
This past May, a federal judge in San Francisco dismissed Twitter’s lawsuit as unripe because the Republican AG’s subpoena can only be enforced in state court. Senior U.S. District Judge Maxine Chesney concluded the social media giant suffered no concrete harm from a toothless subpoena.
During oral arguments on Twitter’s appeal in January, the panel of three Trump-appointed circuit judges signaled a reluctance to revive the platform’s complaint, suggesting it could scuttle legitimate state inquiries into consumer fraud and other crimes.
In a 20-page opinion released Wednesday, the panel held that Twitter’s appeal isn’t ripe for review because the Texas AG has yet to enforce its subpoena or file civil claims against the platform.
“Adjudicating this case now would require determining whether Twitter has violated Texas’s unfair trade practices law before [the Office of Attorney General] has a chance to complete its investigation,” Nelson wrote for the panel.
In an amici brief filed with the court, six free speech advocacy groups — including the Electronic Frontier Foundation and Center for Democracy and Technology — argued the Texas probe threatens to chill the free speech rights of social media firms. Such investigations would subject online platforms to potential civil liability based on their constitutionally protected editorial judgments, the groups argued.
“These chilling effects ultimately harm the public, which relies on hosts to make important and timely content moderation decisions regarding disinformation, hate speech, harassment, and other such content, and which benefits from competition and diversity in the market of providers of user-generated content,” attorney Caitlin Vogus wrote on behalf of the groups.
The Ninth Circuit panel rejected that argument, insisting the Texas probe isn't meant to punish Twitter for its content policies but rather to examine if its statements about those policies are truthful.
“Twitter’s statements can be investigated as misleading just like the statements of any other business,” Nelson wrote.
The panel further held that ruling in favor of Twitter could set a dangerous precedent and embolden individuals to block all manner of state investigations by claiming in federal court that such probes are motivated by retaliatory intent.
Nelson questioned if, under Twitter's theory, business executives could also claim that antitrust investigations chill their First Amendment rights to speak freely among themselves.
“If this case were ripe, then the target of an antitrust investigation could sue the government and force it to try its entire case before it even decides whether it wants to allege a violation,” Nelson wrote.
In affirming Chesney's dismissal, the panel concluded the case isn't ripe for a decision yet because the facts need further development. They also found Twitter suffers no major hardship since it can still challenge the subpoena's enforcement in state court.
U.S. Circuit Judges Mark Bennett and Patrick Bumatay joined Nelson on the panel.
Twitter and Texas Attorney General Paxton’s office did not immediately respond to emails requesting comment Wednesday.
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