On Friday morning, lawyers for Twitter will square off against attorneys representing Texas Attorney General Ken Paxton in a San Francisco, California federal court. Here’s your lawsplainer for the proceedings.
Twitter May Have Sued, But It’s the One Under Investigation
Congress has questioned Big Tech leaders about their censorship policies on multiple occasions. Last year, as Twitter and other social media outlets became more blatant in viewpoint discrimination by banning The New York Post’s reporting on Joe Biden’s pay-to-play scandal revealed from documents found on Hunter Biden’s abandoned MacBook, and following citizen complaints, Texas’ Consumer Protection Division launched an investigation also.
The Texas investigation sought to focus on Twitter’s “policies and procedures relating to content moderation.” That division enforces Texas’ Deceptive Trade Practices Act, which prohibits companies from misleading Texas consumers and declares unlawful “False, misleading, or deceptive acts or practices in the conduct of any trade or commerce.”
According to Paxton, Texas’ investigation seeks to determine whether Twitter engaged in “deceptive trade practices” by telling Lone Star State consumers “that is content moderation policies are objective and not viewpoint-discriminatory, and that its content-moderation rules are transparent and publicly available.” Further, Paxton notes that while “Twitter appears to emphasize these points to attract and retain users who they can monetize through targeted advertisements, . . . there is good reason to think that Twitter misled Texas consumers with those claims.”
In January, the Texas Consumer Protection Division issued a Civil Investigative Demand, or “CID,” to Twitter, seeking production of five categories of documents relevant to its investigation of Twitter. Under state law, a CID can be issued to any person (or entity), “the consumer protection division believes . . . may be in possession, custody, or control of the original copy of any documentary material relevant to the subject matter of an investigation.”
Among other things, Paxton sought all “policies and procedures related to content moderation on [Twitter’s] platform, including any policies or procedures that limit the reach or visibility of content intended for public viewers.” The CID also requested “a copy of all communications, internal and to third parties, [Twitter] had between January 1, 2019, and the present regarding the social media platform Parler.com or Parler Inc.”
Under state law, a recipient of a CID has the option of producing the documents, challenging the CID in state court, or waiting for the state to sue in state court to enforce the CID and at that point challenge the Consumer Protection Divisions’ request for documents. However, after originally working with Texas and obtaining several extensions to the CID deadline, Twitter ignored the state’s procedures for challenging the CID and instead on March 8, 2021 filed a separate lawsuit against Paxton in a federal district court in California.
In its one-count complaint, Twitter claimed Paxton was “abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights.” Specifically, Twitter alleged that Paxton “initiated the investigation [of Twitter] and issued the CID in order to use his official authority to punish Twitter for making content moderation decisions that he did not like, in the hope that Twitter would exercise its editorial discretion in a manner consistent with AG Paxton’s preferences going forward.” Such retaliation violates the First Amendment, Twitter alleged.
Twitter Undermines Its Own Legal Protections
To support its claim of retaliation, Twitter’s complaint detailed numerous tweets or public statements by Paxton complaining of the social-media giant’s anti-conservative bias and statements Paxton made indicating a desire to take “concrete legal action” to stop Big Tech’s censorship. Amazingly, Twitter then argued:
Disclosure of its policies would ‘threaten Twitter’s editorial discretion. Twitter exercises its editorial judgment by creating and implementing moderation procedures that reflect sensitive internal deliberations over what discourse appears on the platform and in what manner. These moderation policies and procedures are functionally equivalent to the internal editorial decision-making processes of news organizations: just as newspapers and magazines carefully guard their internal deliberation about what news they see as fit to print or what op-eds they will publish, so too does Twitter guard its internal deliberations and procedures for making editorial judgments.
For those following the debate over Section 230’s grant of immunity to social media companies, this passage likely induces a GIF-worthy double-take: Twitter is making editorial decisions? Just like newspapers and magazines, which deliberate what “they see as fit to print or what op-eds they will publish”? Doesn’t this suggest Twitter is no longer entitled to Section 230 immunity?
After all, Section 230 provided Twitter and other social media providers immunity by declaring these interactive computer service providers will not “be treated as the publisher or speaker of any information provided by another information content provider.” And Congress created that protection “to preserve the vibrant and competitive free market” and “to encourage the development of technologies which maximize user control.”
Twitter made sure, however, to disavow any such implication, dropping a footnote in the motion for injunctive relief it filed the same day, referencing Section 230: “Section 230 of the Communications Act of 1934, upon which this case does not rest, protects Twitter from liability for the content that ultimately passes through its moderation procedures. The analysis of Twitter’s status under section 230 is distinct from the analysis of the protections to which it is entitled under the First Amendment.”
While ironic that Twitter frames its First Amendment argument as based on its editorial position, the social media giant is correct that Section 230 is irrelevant to its case against Paxton. Rather, the question for the California federal court on Friday is whether to issue a preliminary injunction in Twitter’s favor barring Paxton’s investigation and enjoining enforcement of the CID.
Texas’s Side of the Case
However, before reaching Twitter’s First Amendment claim, Judge Maxine M. Chesney, the judge presiding over Twitter’s lawsuit, will have to resolve several other legal issues first—issues Paxton raised in the Motion to Dismiss he filed shortly after Twitter filed suit in the San Francisco federal court.
In Texas’ Motion to Dismiss, Paxton argues initially that courts in California lack “personal jurisdiction” over him, meaning the power of the federal court in California to haul the Texas attorney general before it to defend against Twitter’s complaint.
“Personal jurisdiction” is a constitutional requirement stemming from the due process clause, and for Paxton to be subject to the personal jurisdiction of the courts in California, he must have “certain minimum contacts with [California] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
Twitter argues Paxton is subject to California’s personal jurisdiction because he opened a Twitter account and agreed to the terms of service that include a provision that he consented to personal jurisdiction in California. That argument is unlikely to sway the court, however, because Twitter’s lawsuit against Paxton is unrelated to the Texas attorney general’s use of Twitter.
Alternatively, Twitter argues that because Paxton’s investigation and CID affect Twitter in California, he is subject to litigation in California, while Paxton argues that is insufficient to establish personal jurisdiction. Both Twitter and Paxton cite case law supporting their views, but it presents a difficult question without a predictable answer.
Other Technicalities About How to Hear the Case
Even if the court concludes Paxton is subject to suit in California, Paxton presents another basis to dismiss the complaint: Paxton asserts Twitter’s claim is not yet ripe.
Because Article III of the U.S. Constitution grants federal courts jurisdiction only over “cases” or “controversies,” a case must be “ripe” for a federal court to hear the dispute—if it is not “ripe” there is no case or controversy to resolve. To be ripe, a plaintiff must assert an “injury that is real and concrete rather than speculative and hypothetical.” Generally, “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.”
Paxton argues that because it has taken no action to enforce the CID, Twitter has not been injured and Twitter’s First Amendment claim is premature. Conversely, Twitter argues that the issuance of the CID has “chilled” its speech by “constraining its moderation decisions and deliberations.” The ripeness issue also presents a difficult question, and again with no certain answer.
A third difficult question Paxton presents in Texas’ Motion to Dismiss concerns venue, or the most appropriate geographical location for the case. Even if there is jurisdiction in California, Paxton argues that venue is improper there and requests the case either be dismissed or venue be transferred to Texas.
Venue seeks to protect a defendant from “unfair or inconvenient” forums, and Paxton presents a strong argument California is an improper venue, but again whether the court agrees is another matter.
Resolve Texas Litigation First
Paxton’s Motion to Dismiss presents one final complicated issue: Whether the court should “abstain” from the dispute, meaning refuse to hear the lawsuit. Several different abstention doctrines have developed over the years that compel (or permit) federal courts to dismiss cases that involve or are intwined with state law issues. In this case, Paxton argues that “Pullman abstention” requires the court to abstain from resolving Twitter’s complaint.
“Pullman abstention is an equitable doctrine that comes into play when it appears that abstention may eliminate or materially alter the constitutional issue presented.” Pullman abstention is appropriate if a case presents “a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.”
In other words, Paxton argues that the California federal court should refuse to hear Twitter’s case because the First Amendment claim Twitter presents might be mooted following litigation in Texas concerning the validity of the CID. For instance, if a Texas court declares the CID invalid, Twitter would have no federal constitutional claim to litigate, and therefore, the federal court should refuse to enter the fray at this time. Again, there is no clear answer on the propriety of Pullman abstention.
Four Things for the Judge to Consider Friday
When Judge Chesney, a Bill Clinton appointee, hears the case on Friday, she will begin considering Paxton’s Motion to Dismiss and the four arguments he presents for dismissal: lack of personal jurisdiction; lack of ripeness; improper venue; and Pullman abstention. If Chesney agrees with Paxton on any of those grounds, she will dismiss Twitter’s case (or transfer venue to Texas), and that will end the case in California.
However, if Judge Chesney rejects Paxton’s arguments or takes the questions under advisement, she will then proceed to consider Twitter’s motion for a preliminary injunction. To prevail on this motion, Twitter will need to establish it has a likelihood to succeed on the merits of its First Amendment claim; is likely to suffer irreparable harm in the absence of a preliminary injunction; that the equities tip in its favor; and that an injunction is in the public interest.
Whether Judge Chesney grants Twitter a preliminary injunction barring the investigation into its policies and procedures and enjoins the CID will depend heavily on the court’s assessment of whether Twitter is likely to prevail on its First Amendment claim. The other factors, while relevant, rarely drive the decision.
Why Is Twitter In Court In the First Place?
To prevail on its claim for First Amendment retaliation, Twitter must show it “was engaged in a constitutionally protected activity;” that Paxton’s “actions would chill a person of ordinary firmness from continuing to engage in the protected activity;” and that “the protected activity was a substantial or motiving factor in the defendant’s conduct.” If Twitter can establish those elements, Paxon will need to show he would have launched the investigation and issued the CID “without respect to retaliation.”
As noted above, Twitter claims that its content moderation policies were protected by the First Amendment and that Paxton targeted Twitter with an investigation and CID because he did not like the decisions Twitter made. However, as Paxton argues in its brief, “Even if Twitter has a First Amendment right to choose discriminatory content-moderation policies, the Constitution does not empower it to mislead consumers about those policies. Consumer-protection investigations of potential misrepresentation do not violate the First Amendment.”
Therein, lies the ultimate question for Judge Chesney to resolve: Did Paxton target Twitter for its content moderation policies or for lying about its content-moderation policies?
Of course, the long-time federal judge might instead opt for one of the four options Paxton provided to avoid resolving that question. Tomorrow’s hearing will likely provide some hints to the direction she is leaning.