9th Circuit Issues Amended Opinion in Twitter-Texas AG Dispute

On Wednesday, the Ninth Circuit Court of Appeals issued an opinion in a censorship dispute between Texas Attorney General Ken Paxton and Twitter Inc. The decision affirmed the district court’s ruling that Twitter’s case was “constitutionally unripe,” an amendment from the panel’s previous decision that the case was “prudentially unripe.”

The dispute began in 2021 when, after rioters stormed the U.S. Capitol on January 6, Twitter decided to disband then-President Trump’s social media account. (The ban has since been reversed.) Thereafter, Paxton’s office issued a civil investigative demand (CID) to Twitter and other social media platform operators concerning the “seemingly coordinated de-platforming of the President” and violations of free speech.

Twitter sued Paxton’s office, accusing it of treading on its First Amendment rights to freely moderate content and seeking injunctive and declaratory relief to stop the investigation into Twitter’s content moderation practices. The lawsuit called the CID an attempt to “intimidate, harass, and target Twitter in retaliation for Twitter’s exercising of its First Amendment rights.” 

In early March, the Ninth Circuit issued an opinion affirming dismissal of the case on prudential ripeness grounds. With the amendments made in this week’s opinion, the full court denied Twitter’s petition for panel rehearing and rehearing en banc.

The decision found that Twitter did not really make a pre-enforcement challenge to a speech regulation and therefore did not allege that its speech was being chilled. Instead, the company challenged the investigation as a retaliatory action and the panel used that framework to evaluate Twitter’s standing.  

The court said that Twitter’s allegations were void of any “effect on its speech or any other legally cognizable injury that the requested injunction would redress.” The company’s assertion that its speech has been chilled by virtue of the investigation was a bare legal conclusion, the panel said.

Lastly, the court pointed out that Twitter suffered no Article III injury because it never faced any penalties associated with the CID. Furthermore, the panel said “enforcement is no rubber stamp,” as applying the law to Twitter’s conduct requires several administrative steps and also grants Twitter the right to appeal.

Twitter is represented by Wilmer Cutler Pickering Hale and Dorr and Paxton by the Office of the Attorney General of Texas and Lewis Brisbois Bisgaard & Smith LLP.