Twitter filed a complaint on Monday in the Northern District of California against Texas Attorney General Ken Paxton for injunctive and declaratory relief to stop Paxton’s investigation into Twitter’s content moderation practices, calling the investigation an attempt to “intimidate, harass, and target Twitter in retaliation for Twitter’s exercising of its First Amendment rights” for banning former President Donald Trump following the breach of the U.S. Capitol in January.
Twitter claimed that the First Amendment affords it “the right to make decisions about what content to disseminate through its platform.” Accordingly, Twitter stated that “(t)his right specifically includes the discretion to remove or otherwise restrict access to Tweets, profiles, or other content posted to Twitter.” Twitter asserted that the Texas Attorney General “may not compel Twitter to publish such content over its objection, and he may not penalize Twitter for exercising its right to exclude such content from its platform.”
In the complaint, Twitter pointed to its established content moderation policies and procedures and noted using this in its decision to suspend or restrict numerous accounts earlier this year. However, Twitter claimed that “AG Paxton has long disagreed with Twitter’s content moderation decisions,” which “turned to official action against the company after Twitter suspended President Trump’s account on January 8, 2021.” Reportedly, shortly after, AG Paxton issued a civil investigative demand (CID) to Twitter, Google, Facebook, Amazon Web Services, and Apple for what he called a “seemingly coordinated de-platforming of the President” and a violation of free speech.
According to the complaint, Paxton requested “volumes of highly confidential documents concerning Twitter’s internal content moderation process,” such as emails and other communication relating to Twitter’s content moderation, as well as rival social media platform Parler, among other items. Twitter averred that “the public disclosure of (this information) would undermine their effectiveness, and compromise Twitter’s ability to effectively and efficiently moderate content on its platform.” Twitter contended that it has been unable to reach an agreement with AG Paxton and this the purported retaliatory conduct violates the Constitution.
Specifically, Twitter proffered that AG Paxton’s “investigation and CID unlawfully intrude on Twitter’s internal editorial processes and burden its protected activity, and do so solely because Twitter exercised its First Amendment rights in a way disagreeable to AG Paxton.” Moreover, Twitter alleged that it “strives for as much transparency as possible,” but it “cannot practically make every aspect of its content moderation practices public because some confidentiality is vital to the effective functioning of its platform.” In particular, Twitter claimed that “(p)ublic disclosure of all Twitter’s internal content moderation procedures would…(allow) bad-faith actors to design their content to carefully evade Twitter’s scrutiny.”
Twitter asserted that AG Paxton’s investigation and conduct violated the First Amendment. Twitter is asking the court to declare that the CID and investigation are unlawful and to enjoin AG Paxton from initiating any action to enforce the CID or otherwise pursuing the investigation, and other relief.
Twitter is represented by Wilmer Cutler Pickering Hale and Dorr.
The lawsuit comes shortly after the Texas legislature introduced a bill that would prevent tech companies like Twitter from suspending users, removing content, and performing other content moderation practices. Additionally, Twitter attempts to take a swing at Texas, after the government and states have been cracking down on tech giants’ power. Recently, Texas led a coalition of states suing Google for antitrust violations.
