Yelp v. Paxton

Court: U.S. Court of Appeals for the Ninth Circuit

Date Filed: March 19, 2024

Background: In August 2022, Yelp began appending a notice to the pages for crisis pregnancy centers after the review website received reports that the centers were trying to steer users seeking abortions away from abortion-care providers. The notice stated that crisis pregnancy centers “typically provide limited medical services and may not have licensed medical professionals onsite.” After facing criticism from a coalition of attorneys general, including Texas Attorney General Ken Paxton, the company later revised the notice to say that crisis pregnancy centers “do not offer abortions or referrals to abortion providers.”

Despite the revised language, Paxton threatened to sue Yelp, claiming in a letter to the company that Yelp’s two consumer notices violated the Texas Deceptive Trade Practices Act, a state consumer protection law. Before he could follow through on that threat, however, Yelp sued Paxton, asking the U.S. District Court for the Northern District California for an injunction to prevent the attorney general from penalizing the company for its editorial decisions.

Paxton then countered with a lawsuit filed in Texas. That lawsuit asked the District Court of Bastrop County, Texas, to stop Yelp from, among other things, “[p]osting any further false and/or misleading disclaimers or representations regarding pregnancy resource centers.”

The federal district court in California dismissed Yelp’s lawsuit in February 2024, holding that a 1971 U.S. Supreme Court ruling prevented it from hearing a case brought by someone being prosecuted in state court. One month later, a Texas judge dismissed Paxton’s lawsuit against Yelp.

Yelp appealed the federal district court’s decision to the U.S. Court of Appeals for the Ninth Circuit.

Our Position: The Ninth Circuit should reverse the district court’s decision to dismiss Yelp’s lawsuit.

• The First Amendment prohibits the government from forcing its own vision of editorial fairness on a private speaker’s expressive decisions.
• The First Amendment prohibits the government from repackaging editorial fairness as consumer fairness to avoid constitutional limits.

Quote: “[T]he sheer breadth of the Attorney General’s conception of commercial speech only underlines that allowing his suit to proceed would threaten editorial autonomy well beyond the facts of this case. There is nothing in the Attorney General’s presentations that would preclude the extension of his theory to traditional news outlets reporting on the availability of reproductive health care — or any other good or service about which members of the public hold competing points of view. Thankfully, however, the First Amendment stands solidly in the way.”

Related: In 2021, Paxton tried to invoke the Deceptive Trade Practices Act for a state investigation he launched into decisions by Google, Facebook, Twitter, and other companies to block then-President Donald Trump from accessing their platforms following the attack on the U.S. Capitol on Jan. 6, 2021. In that case, the Reporters Committee filed a friend-of-the-court brief supporting Twitter’s efforts to prevent the Texas attorney general from enforcing his demand for the company’s confidential documents as part of his investigation.