Twitter Jumped Gun in Suing Texas AG Over Probe Into Trump Ban

Twitter Inc.'s First Amendment challenge to a Texas probe following its decision to ban former President Donald Trump was filed too soon and can’t move forward, the Ninth Circuit ruled Wednesday.

Twitter’s lawsuit against Texas Attorney General Ken Paxton was properly dismissed as unripe, the U.S. Court of Appeals for the Ninth Circuit held. The issues raised by the lawsuit are “not yet fit for judicial decision,” because Paxton hasn’t yet made an allegation against Twitter and because Twitter need not comply with Paxton’s request and can challenge the request if it’s enforced, the court said.

Deciding the case now “would require the district court to determine whether Twitter had made misrepresentations,” the court said. “But misrepresentations are exactly what are prohibited by Texas’s unfair and deceptive trade practices law; this is the very thing that Paxton claims OAG is trying to investigate. And at this stage, OAG hasn’t even alleged that there is a violation; OAG is just trying to look into it.”

“Allowing this case to go forward would force OAG to litigate the merits in a defensive posture in a different jurisdiction, without being able to investigate its own potential claims,” the court said. Any “alleged chill” of Twitter’s First Amendment rights is insufficient to overcome these considerations, it said.

The lawsuit is fallout from the Jan. 6, 2021, attack on the U.S. Capitol and Twitter’s subsequent decision to ban Trump from its platform. The following week, Paxton issued a civil investigative demand seeking documents related to Twitter’s content moderation policies.

Twitter filed suit, arguing that Paxton’s demand was government retaliation for its First Amendment-protected speech. The company also sought an injunction prohibiting Paxton from enforcing the demand and a declaration that the First Amendment bars the investigation into Twitter’s internal editorial policies.

A federal judge in California dismissed Twitter’s suit as premature in May 2021. The Ninth Circuit affirmed in an opinion written by Judge Ryan D. Nelson and joined by Judges Mark J. Bennett and Patrick J. Bumatay.

The decision is a loss for the Reports Committee for Freedom of the Press and the Media Law Resource Center, which filed an amicus brief arguing that the possibility of a government enforcement action based on the exercise of editorial discretion “presents a profound danger of chill” in the First Amendment context.

Wilmer Cutler Pickering Hale & Dorr LLP represents Twitter. The Texas attorney general’s office and Lewis Brisbois Bisgaard & Smith LLP represent Paxton.

The case is Twitter, Inc. v. Paxton, 9th Cir., No. 21-15869, revised opinion filed 12/14/22.