Twitter v. Paxton

Court: U.S. District Court for the Northern District of California

Date Filed: March 24, 2021

Update: On May 11, 2021, the U.S. District Court for the Northern District of California granted the Texas attorney general’s motion to dismiss, ruling that Twitter must wait until the attorney general’s office moves to enforce the civil investigative demands before taking legal action. On appeal, the Reporters Committee and the Media Law Resource Center submitted a friend-of-the-court brief to the Ninth Circuit on July 23, 2021, arguing that the suit is ripe to be heard and reiterating the First Amendment threats the civil investigative demands pose. On March 2, 2022, the Ninth Circuit affirmed the district court’s order dismissing the case. Twitter petitioned for the case to be re-heard by the entire Ninth Circuit, and RCFP and the MLRC filed a friend-of-the-court brief in support of the petition on April 11, 2022. On Dec. 14, 2022, the Ninth Circuit denied rehearing en banc but issued an amended opinion, removing the dangerous language RCFP and the MLRC had objected to that had suggested that Twitter’s representations about editorial fairness might be misleading commercial speech.

Background: In January 2021, after Twitter and other technology companies blocked then-President Trump’s access to their platforms, Texas Attorney General Ken Paxton announced an investigation into Google, Facebook, Twitter, Amazon Web Services and Apple. He specifically issued the online platforms civil investigative demands to determine whether they violated the state’s Deceptive Trade Practices-Consumer Protection Act by exercising perceived bias in moderating lawful speech.

Twitter then filed a lawsuit seeking to stop the attorney general’s investigation, arguing that Paxton was retaliating against the company for content moderation practices he dislikes.

Our Position: The U.S. District Court for the Northern District of California should grant Twitter’s motion for a preliminary injunction preventing the Texas attorney general from enforcing his demand for the company’s confidential documents.

• Government efforts to use deceptive practices laws, or other similar regulatory schemes, to investigate perceived “bias” by members of the news media would contravene the rule articulated by the U.S. Supreme Court in Miami Herald Pub. Company v. Tornillo — that “governmental regulation” of “editorial control and judgment” cannot be “exercised consistent with First Amendment guarantees of a free press[.]”
• The Deceptive Trade Practices-Consumer Protection Act poses a significant risk of censorship if used to investigate or enforce the government’s conception of viewpoint neutrality online.

Quote: “Any government effort to enforce what it deems viewpoint neutrality on a communications platform carries the temptation to compel platforms to carry speech perceived as favorable to the government.”

Related: The Reporters Committee’s Technology and Press Freedom Project monitors developments related to tech platforms’ content moderation practices in its weekly newsletter, This Week in Technology + Press Freedom. As TPFP Legal Fellow Mailyn Fidler wrote in the Feb. 7, 2021, newsletter, tech platforms’ content moderation decisions can have significant implications for online news. Sign up to get the TPFP newsletter delivered straight to your inbox each week.

Ninth Circuit rehearing en banc brief:

Ninth Circuit brief:

District court brief: