Twitter Appeals After Dismissal of Case Against Texas AG for Retaliatory Investigation

On May 14, Twitter filed a notice of appeal with the Ninth Circuit following a decision rendered by a San Francisco, Calif. judge in favor of Texas Attorney General Ken Paxton. The case concerns Twitter’s constitutional challenge to an investigation Paxton allegedly initiated to punish the message sharing platform for its content moderation decisions made in the wake of the deadly attack on the U.S. Capitol this January. 

Twitter sought to halt the allegedly retailatory investigation, but was told its suit was premature in last week’s ruling by Judge Maxine M. Chesney. The opinion and order granted Paxton’s motion to dismiss, which according to the plaintiff-appellant, effectively denied its motion for a preliminary injunction.

Amici joined the dispute while dismissal briefing was underway. In support of Twitter, the Reporters Committee for Freedom of the Press, Center for Democracy and Technology, Electronic Frontier Foundation, Media Law Resource Center Inc., and PEN America argued that such government action threatens to chill public discourse and First Amendment guarantees.

In support of Paxton, two civilians filed amicus briefs. One is a California real estate broker, Maria Rutenburg. Her brief remarked that she recently sued Twitter alleging that the platform’s censorship and deletion of then-president Donald Trump’s account violated the U.S. Constitution and a federal civil rights statute. In April, Rutenburg’s case was dismissed for want of subject matter jurisdiction.

Paxton won before the district court, after it ruled that the case was premature because Twitter had yet to suffer harm. By appealing the loss, the message sharing platform requests that the Ninth Circuit reverse the decision and put a stop to the state’s investigation. According to a scheduling order, Twitter’s opening brief is due July 16, and Paxton’s answering brief Aug. 16.

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.