Twitter, Inc. v. Paxton.

• Author: Johnson, Jordyn

26 F.4TH 1119 (9TH CIR. 2022)

In 2021, after Twitter announced its decision to permanently ban former President Donald Trump, the Texas Office of the Attorney General ("OAG") served Twitter with a Civil Investigative Demand ("CID") asking the company to hand over documents concerning its content moderation decisions. (1) Twitter sued Ken Paxton in his official capacity as the Attorney General of Texas, maintaining that the CID was government retaliation against speech protected by the First Amendment. (2) The Northern District of California dismissed the case as unripe. (3) In response, Twitter filed an injunction pending appeal, which the District Court rejected, and a divided motions panel on the Ninth Circuit upheld the finding. (4) The Ninth Circuit then affirmed the motion to dismiss, finding that the case was prudentially unripe. (5)

1. BACKGROUND

   Following the events at the United States Capitol on January 6, 2021, Twitter permanently banned former President Donald Trump from its platform. (6) In response, the Texas OAG asked Twitter to produce documents related to "its content moderation decisions" through a CID. (7) OAG said that it had been looking into Twitter's content moderation decisions for years because of citizen complaints. (8)

   Consequently, Twitter sued Texas Attorney General Ken Paxton in the Northern District of California, arguing that "the act of sending the CID and the entire investigation were unlawful retaliation for its protected speech." (9) This was partly due to Paxton tweeting that Twitter was "closing conservative accounts" and promising that "[a]s AG, I will fight them with all I've got." (10) However, Twitter executives had previously claimed its content moderation policies were apolitical. (11) Twitter maintained that Paxton violated the company's First Amendment rights as a publisher because content moderation decisions were protected speech. (12) Further, it directed the District Court's attention to Paxton's tweets, claiming they showed his intent that serving Twitter with the CID was retaliation for banning President Trump. (13) Twitter asked the Northern District of California to prevent Paxton from enforcing the CID and find that the investigation violated the First Amendment. (14) Paxton challenged the case's ripeness, arguing that "pre-enforcement challenges to non-self-executing document requests are not ripe." (15) The District Court agreed and dismissed the case. (16) Twitter maintained that the...