Ninth Circuit reluctant to revive Twitter’s retaliation suit against Texas

SAN FRANCISCO (CN) — A panel of Ninth Circuit judges on Monday signaled a reluctance to revive Twitter's free speech retaliation suit against Texas Attorney General Ken Paxton, despite claims that the AG's probe into Twitter's censorship practices violates the First Amendment.

Twitter sued Paxton this past March, claiming his demand for internal documents on Twitter’s content moderation policies was intended to retaliate against the platform for banning former President Donald Trump following a deadly insurrection at the U.S. Capitol on Jan. 6, 2021.

In May, a federal judge 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 platform suffered no concrete harm from a toothless subpoena.

On Monday, Twitter attorney Peter Neiman urged a panel of three Trump-appointed circuit judges to reverse that decision, arguing the AG’s investigation seeks to coerce the platform into altering its speech in violation of the First Amendment.

“Here the retaliatory threat — the investigation, the [civil investigative demand] — put Twitter under immediate pressure to change the moderation decisions that it makes every day,” Neiman told the panel.

U.S. Circuit Judge Ryan Nelson said he couldn’t find in Twitter's lawsuit one example of how the company altered its speech in response to the AG’s supboena.

Neiman replied that Twitter doesn’t have to show that it changed its content moderation policies to sue for First Amendment retaliation.

“The idea here is that we have to show conduct that is severe enough to chill a person of reasonable firmness,” Neiman said.

U.S. Circuit Judge Mark Bennett suggested that allowing Twitter to sue over an unenforced subpoena could open the door for other companies involved in politics to file First Amendment retaliation suits against state AGs to thwart legitimate investigations.

“I’m trying to look for a limiting ripeness principle,” Bennett said. “Attorneys general do a lot of information gathering.”

Paxton’s investigation is focused on whether Twitter violated the state’s consumer protection laws by falsely claiming to be neutral in how it decides what posts should be taken down, accompanied by fact-checking warning labels or grounds for permanent suspension from the platform.

“Because the First Amendment is not a license to defraud, it doesn’t give Twitter a free pass on a government investigation into whether they have committed fraud,” Texas Deputy Solicitor General Lanora Pettit argued. “That’s precisely what the [civil investigative demand] at the heart of this case seeks to do.”

U.S. Circuit Judges Patrick Bumatay and Nelson voiced concern that the subpoena's validity ought to be adjudicated in Texas state court, rather than a federal court in Northern California.

“To me, it seems Twitter has flooded Texas with messages that the attorney general claims violates their consumer protection so he’s responding to that flood of messages in Texas,” Bumatay said.

Neiman replied that Texas suffers no harm in having the First Amendment retaliation issue resolved in California, especially given that the AG has never attempted to enforce the subpoena in the Lone Star state.

“Our position is they’re perfectly content to leave the sword of Damocles hanging over our head,” Neiman said.

“What’s the sword?” Bennett asked.

“The fact that they’ve threatened to fight us with all they’ve got and they’ve served us with a subpoena that they haven’t withdrawn,” Neiman answered.

“The sword is the threat and the [civil investigative demand] that they have not taken any steps to enforce,” Bennett replied incredulously.

Neiman said the subpoena requires Twitter to continually produce new documents on content moderation policies and decisions that the platform makes every day.

Judge Nelson asked the Texas deputy solicitor general why the state has not withdrawn the subpoena or sought to enforce it.

Pettit partly blamed the lack of enforcement on a new Texas law, House Bill 20, that compels social media companies to disclose information on their content moderation policies and decisions. A federal judge blocked the law from taking effect in December.

“We haven’t made a conclusion yet whether or not we’re going to enforce it, but the fact that we haven’t enforced it yet means this is not an appropriate dispute for the federal courts,” Pettit said.

After about 45 minutes of debate, the panel took the arguments under submission.

Follow @NicholasIovino

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