Another Texas consumer-protection inquiry threatens First Amendment rights

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The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief last week in Media Matters for America v. Paxton, another case, this time in the U.S. Court of Appeals for the District of Columbia Circuit, where the Texas attorney general’s office has launched an inquiry under the state’s consumer-protection laws that, if permitted, could threaten the editorial autonomy of traditional news organizations.

The case arose out of an article posted to Media Matters’ website in November 2023, which included images from X of extremist content next to advertisements by various large companies. X sued Media Matters and Eric Hananoki, the investigative reporter who wrote the article. Days later, Texas Attorney General Ken Paxton announced that he was opening an investigation of Media Matters “for potential fraudulent activity” in violation of the state’s Deceptive Trade Practices Act. He then issued a civil investigative demand for various material from Media Matters, including internal communications about the reporting.

Media Matters sued Paxton in the U.S. District Court for the District of Columbia to block the CID. Judge Amit Mehta issued an injunction doing so and Paxton appealed.

The problem, as we explain in the brief, is that Paxton does not claim that anything in the article was false, “only that [it] may reflect an ‘artificial’ rather than an ‘organic’ experience on the platform.” In other words, the Texas CID is predicated on the state’s belief that the article was “unfair.”

The case highlights the acute danger in stretching consumer-protection laws — which indisputably serve important state interests — beyond commercial speech to speech that is, as here, substantially similar to the journalism that traditional news organizations publish every day. 

Courts for decades have recognized that risk. In Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, for instance, the U.S. Supreme Court upheld the application of a city ordinance barring gender-designated employment advertising but was exceedingly careful to note that, not only were the advertisements at issue purely commercial, they were actually illegal commercial activity. The Court took pains, however, to warn that a too-loose commercial speech standard could ensnare “all aspects” of a for-profit news organization’s operations, “from the selection of news stories to the choice of editorial position.”

This is the third challenge to a Texas CID under the state’s deceptive trade practices law where we’ve filed friend-of-the-court briefs. Earlier this year, we filed in support of Yelp in a case involving notices that the company posted to pages for crisis pregnancy centers. And, in 2021 and 2022, we filed multiple briefs in support of Twitter itself (prior to its rebranding as X) in its challenge to CIDs seeking detailed information about its content moderation decisions.

We’ll keep a close eye on this case, but one thing that will be interesting to watch is how the D.C. Circuit applies the Supreme Court’s decision in Moody v. NetChoice. As we wrote in this newsletter last week, the Court’s opinion emphatically reaffirmed the basic First Amendment rule that “a State may not interfere with private actors’ speech to advance its own vision of ideological balance.” 

While this case arises in a somewhat subtler context than Moody — where the states sought to directly regulate content moderation decisions — the predicate for the CID is the same as the state interest advanced in Moody: policing what the state sees as unfairness or bias. Hopefully that serves to persuade the D.C. Circuit to affirm the injunction here.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.