Twitter, Inc. v. Paxton

• Decision Date: 02 March 2022
• Docket Number: No. 21-15869,21-15869
• Citation: 26 F.4th 1119
• Parties: TWITTER, INC., Plaintiff-Appellant, v. Ken PAXTON, in his official capacity as Attorney General of Texas, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

26 F.4th 1119

TWITTER, INC., Plaintiff-Appellant,

v.Ken PAXTON, in his official capacity as Attorney General of Texas, Defendant-Appellee.

No. 21-15869

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 10, 2022 San Francisco, California

Filed March 2, 2022

Peter G. Neiman (argued), Alex W. Miller, and Rishita Apsani, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Mark D. Flanagan, Wilmer Cutler Pickering Hale and Dorr LLP, Palo Alto, California; Patrick J. Carome, Ari Holtzblatt, Anuradha Sivaram, and Susan Pelletier, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; for Plaintiff-Appellant.

Michael Kenneth Johnson, Lewis Brisbois Bisgaard & Smith LLP, Walnut Creek, California

Lanora C. Pettit (argued), Principal Deputy Solicitor General; Benjamin D. Wilson, Deputy Solicitor General; Judd E. Stone II, Solicitor General; William T. Thompson, Deputy Chief, Special Litigation Unit; Patrick Sweeten, Chief, Special Litigation Unit; Brent Webster, First Assistant Attorney General; Ken Paxton, Attorney General; Office of the Attorney General, Austin, Texas; for Defendant-Appellee.

Katie Townsend, Bruce D. Brown, Gabe Rottman, and Mailyn Fidler, Reporters Committee for Freedom of the Press, Washington, D.C., for Amici Curiae Reporters Committee for Freedom of the Press and Media Law Resource Center.

Caitlin Vogus, Samir Jain, and Emma Llansó, Center for Democracy & Technology, Washington, D.C., for Amici Curiae Center for Democracy & Technology, Electronic Frontier Foundation, Media Coalition Foundation Inc., National Coalition Against Censorship, Pen America, and R Street Institute.

Before: Mark J. Bennett, Ryan D. Nelson, and Patrick J. Bumatay, Circuit Judges.

R. NELSON, Circuit Judge:

After the events at the U.S. Capitol on January 6, 2021, Twitter banned President Donald Trump for life. Soon after Twitter announced the ban, the Texas Office of the Attorney General (OAG) served Twitter with a Civil Investigative Demand (CID) asking it to produce various documents relating to its content moderation decisions. Twitter sued Ken Paxton, the Attorney General of Texas, in his official capacity, arguing that the CID was government retaliation for speech protected by the First Amendment. The district court dismissed the case as not ripe. We affirm.

I

A

OAG says that it has been investigating Twitter's content-moderation decisions in response to citizen complaints since 2018. Twitter executives have said publicly that Twitter does not moderate content based on political viewpoint. After Twitter banned President Trump for life, Paxton tweeted that Twitter (along with Facebook) was "closing conservative accounts," and that it and other companies stood "ready/willing to be the left's Chinese-style thought police." He vowed that "[a]s AG, I will fight them with all I've got."

A few days later OAG served Twitter with a CID, requiring it to produce various documents related to its content moderation decisions. Paxton says that OAG "does not seek to investigate the content-moderation decisions that Twitter makes—and could not do so under [Texas's unfair and deceptive trade practices law]—but rather is conducting an investigation into whether Twitter truthfully represents its moderation policies to Texas consumers." But Twitter paints this rationale as a pretext for Paxton's unlawful retaliation.

B

After some negotiation, rather than respond to the CID or wait for OAG to move to enforce it in Texas state court, Twitter instead sued Paxton in the Northern District of California. It alleged that both the act of sending the CID and the entire investigation were unlawful retaliation for its protected speech. Claiming under 42 U.S.C. § 1983 that Paxton violated its First Amendment rights, Twitter asked the district court to enjoin Paxton from enforcing the CID and from continuing his investigation, and to declare the investigation unconstitutional. In Twitter's view, its content moderation decisions are protected speech because it is a publisher, and it has a First Amendment right to choose what content to publish. Pointing to Paxton's public comments, Twitter argues that the CID was served in retaliation for its protected speech and that it chills Twitter's exercise of its First Amendment rights.

In response, Paxton contested personal jurisdiction, venue, ripeness, and whether Twitter had stated a claim. On ripeness, he argued that under Reisman v. Caplin , 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964), pre-enforcement challenges to non-self-executing document requests are not ripe. Twitter countered that the case was ripe because it had already suffered a real First Amendment injury—its speech was already being chilled. The district court held that it had personal jurisdiction and that venue was proper, and then dismissed the case as not ripe, relying on Reisman . It did not reach whether Twitter stated a claim.

After the district court dismissed the case, Twitter moved for an injunction pending appeal, arguing again that the case was ripe. The district court declined to issue one, relying on the same reasoning as before. Twitter then appealed that order to this Court, and a divided motions panel affirmed. Twitter now appeals the district court's original order dismissing the case.

II

The district court's decision to dismiss a case for lack of ripeness is reviewed de novo. Wolfson v. Brammer , 616 F.3d 1045, 1053 (9th Cir. 2010). The district court's decision may be affirmed on any ground supported by the record, even if not relied on by the district court. Cassirer v. Thyssen-Bornemisza Collection Found. , 862 F.3d 951, 974 (9th Cir. 2017).

III

A

Along with standing and mootness, ripeness is one of three justiciability requirements.

Ripeness "is ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’ " Ass'n of Irritated Residents v. EPA , 10 F.4th 937, 944 (9th Cir. 2021) (citing Nat'l Park Hosp. Ass'n v. Dep't of Interior , 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003) ). The "basic rationale" of the ripeness requirement is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Portman v. Cnty. of Santa Clara , 995 F.2d 898, 902 (9th Cir. 1993) (citing Abbott Lab'ys. v. Gardner , 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ).

We have separated out the constitutional and prudential components of ripeness. "[T]he constitutional component of ripeness is synonymous with the injury-in-fact prong of the standing inquiry." Cal. Pro-Life Council, Inc. v. Getman , 328 F.3d 1088, 1094 n.2 (9th Cir. 2003) (citing Thomas v. Anchorage Equal Rts. Comm'n , 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc)). The question is thus "whether the issues presented are definite and concrete, not hypothetical or abstract." Id. (cleaned up).

The prudential part of ripeness, on the other hand, requires us to "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Ass'n of Irritated Residents , 10 F.4th at 944 (citing Abbott Lab'ys , 387 U.S. at 149, 87 S.Ct. 1507 ).¹ "A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final." Skyline Wesleyan Church v. Cal. Dep't of Managed Health Care , 968 F.3d 738, 752 (9th Cir. 2020) (cleaned up). On the hardship prong, we consider whether the action "requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious penalties attached to noncompliance." Stormans, Inc. v. Selecky , 586 F.3d 1109, 1126 (9th Cir. 2009) (cleaned up). As part of this prong, we have also considered the hardship to the government from moving forward with the case. See Thomas , 220 F.3d at 1142 ("the State and the City would suffer hardship were we to adjudicate this case now."). Even if there is some hardship to the plaintiff from withholding consideration, that hardship may still be "insufficient to overcome the uncertainty of the legal issue presented in the case in its current posture" and thus "fail[ ] ... [to] outweigh[ ] our and the [government's] interest in delaying review." Colwell v. Dep't of Health & Hum. Servs. , 558 F.3d 1112, 1129 (9th Cir. 2009) (citation omitted).

We have noted that we "appl[y] the requirements of ripeness and standing less stringently in the context of First Amendment claims." Wolfson , 616 F.3d at 1058 (citing Getman , 328 F.3d at 1094 ). But that observation relied on a standing case, Getman , and thus relates mainly to the constitutional ripeness of a pre-enforcement suit, not to prudential ripeness. And we have also held that "[t]he prudential considerations of ripeness are amplified where constitutional issues are concerned." Scott v. Pasadena Unified Sch. Dist. , 306 F.3d 646, 662 (9th Cir. 2002) (citing United Pub. Workers v. Mitchell , 330 U.S. 75, 90–91, 67 S.Ct. 556, 91 L.Ed. 754 (1947) ).

Personal jurisdiction and constitutional ripeness are jurisdictional prerequisites. Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ; In re Coleman , 560 F.3d 1000, 1005 (9th Cir. 2009). We "generally may not rule on the merits of a case without first determining that [we] ha[ve] jurisdiction." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430–31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citing Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). But "there is no mandatory sequencing of nonmerits issues," and we thus "ha[ve] leeway ‘to choose among threshold grounds for denying audience to a case on the merits.’ " Id. (citing Ruhrgas , 526 U.S. at 584–85, 119 S.Ct. 1563 ). The rationale for this rule is that "jurisdiction is vital only if the court proposes to issue a judgment on the merits."...