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Ninth Circuit:
Twitter’s First Amendment Suit Is Not Ripe
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld the decision of a District Court judge for the Northern District of California dismissing an action by Twitter against the attorney general of Texas in connection with an investigation sparked by the San Francisco-based company’s decision to ban, for life, tweets by former President Donald Trump.
Twitter took the action in light of Trump’s 25 tweets on Jan. 6, 2021, which are attributed with agitating crowds. In its suit against Texas Attorney General Ken Paxton, Twitter claims that the Lone Star State’s Office of Attorney General (“OAG”) is acting in contravention of its First Amendment rights by probing its moderation decisions and that the office’s Civil Investigative Demand (“CID”) relating to those decisions must be invalidated.
A three-judge panel agreed with Superior Court Judge Maxine M. Chesney that the controversy is not ripe for adjudication.
Nelson’s Opinion
Judge Ryan D. Nelson wrote:
“This case is not prudentially ripe. The issues are not yet fit for judicial decision because OAG has not yet made an allegation against Twitter, because the facts are not yet developed, and because Twitter need not comply with the CID, can challenge it if it is enforced, and could have challenged the CID in Texas state court….While Twitter could suffer hardship from withholding consideration, adjudicating this case now would require determining whether Twitter has violated Texas’s unfair trade practices law before OAG has a chance to complete its investigation.”
While Twitter, which is based in San Francisco, has insisted that it does not moderate content based on the political viewpoint being expressed, Paxton and others have maintained that it tends to censor comments by conservatives. He has charged that Twitter and Facebook are “closing conservative accounts” and they and other companies are “ready/willing to be the left’s Chinese-style thought police.”
Misleading Representations
Ryan declared:
“Even if content moderation is protected speech, making misrepresentations about content moderation policies is not….If Twitter’s statements are protected commercial speech, then OAG’s investigation would be unlawful if it would chill a person of ordinary firmness from speaking, and if it was caused in substantial or motivating pat by Twitter’s content moderation decisions….But if Twitter’s statements are misleading commercial speech, and thus unprotected, then Twitter’s content moderation decisions would be a proper cause for the investigation, because they would be the very acts that make its speech misleading.”
He reasoned:
“Indeed, allowing this case to go forward would limit many legitimate investigations, because they could chill First Amendment rights. Consider a civil antitrust investigation. Are the business executives legitimate targets? Or are their First Amendment rights to speak freely among themselves being chilled? If this case were ripe, then the target of an antitrust investigation could sue the government and force it to try its entire case before it even decides whether it wants to allege a violation.”
Joining in the decision were Judges Mark J. Bennett and Patrick J. Bumatay. All three judges are Trump appointees.
The case is Twitter v. Paxton, 21-15869.
Copyright 2022, Metropolitan News Company