Twitter, Inc. v. Paxton

• Decision Date: 02 March 2022
• Docket Number: 21-15869
• Citation: 56 F.4th 1170
• 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

56 F.4th 1170

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

Amended December 14, 2022

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

Lanora C. Pettit (argued), Principal Deputy Solicitor General; Ryan D. Walters, Attorney; Benjamin D. Wilson, Deputy Solicitor General; Judd E. Stone II, Solicitor General; William T. Thompson, Special Litigation Unit Deputy Chief; Patrick Sweeten, Special Litigation Unit Chief; Brent Webster, First Assistant Attorney General; Ken Paxton, Attorney General of Texas; Office of the Texas Attorney General, Austin, Texas; Michael K. Johnson, Lewis Brisbois Bisgaard & Smith LLP, Walnut Creek, California; for Defendant-Appellee.

KatieLynn B. Townsend, Bruce D. Brown, Gabe Rottman, Grayson Clary, Gillian Vernick, and Mailyn Fidler, Reporters Committee for Freedom of the Press, Washington, D.C., for Amici Curiae The Reporters Committee for Freedom of the Press and Media Law Resource Center Inc.

Caitlin Vogus, Samir Jain, and Emma Llanso, 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.

Ilana H. Eisenstein, Whitney Cloud, and Ben C. Fabens-Lassen, DLA Piper LLP, Philadelphia, Pennsylvania; Peter Karanjia, DLA Piper LLP, Washington, D.C.; for Amici Curiae NetChoice LLC, Computer & Communications Industry Association, Chamber of Progress, and TechNet.

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

Order;

Opinion by Judge R. Nelson

ORDER

The opinion filed March 2, 2022, and appearing at 26 F.4th 1119, is amended by the opinion filed concurrently with this order.

The full court has been advised of the petition for rehearing en banc, filed March 30, 2022, and no judge requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. With these amendments, the panel unanimously votes to DENY the petition for panel rehearing and rehearing en banc.

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 pre-enforcement challenges to non-self-executing document requests are not ripe. See Reisman v. Caplin , 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964). Twitter countered that the case was ripe because it had suffered an injury through chilled speech. 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. A divided motions panel affirmed. Twitter now appeals the district court's original order dismissing the case. On March 2, 2022, we issued an opinion affirming the district court and holding that Twitter's claims were not prudentially ripe. On reconsideration, we affirm the district court because Twitter's claims are not constitutionally ripe.

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) (internal quotation marks omitted) (quoting 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) (quoting 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)). Whether framed as an issue of standing or ripeness, an injury must involve "an invasion of a legally protected interest that is (a) concrete and particularized[,] and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted).

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 ). This does not mean, however, that any plaintiff may bring a First Amendment claim "by nakedly asserting that his or her speech was chilled ...." Getman , 328 F.3d at 1095 ; see Lopez v. Candaele , 630 F.3d 775, 787 (9th Cir. 2010) ("Mere allegations of a subjective chill are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." (cleaned up)).

The First Amendment usually prohibits the government from enacting laws that regulate protected speech, and it "prohibits government officials from subjecting individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech." Houston Cmty. Coll. Sys. v. Wilson , ––– U.S. ––––, 142 S. Ct. 1253, 1259, 212 L.Ed.2d 303 (2022) (quoting Nieves v. Bartlett , ––– U.S. ––––, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) ). Pre-enforcement challenges to speech regulations and retaliation claims differ on the merits, of course, but they also carry different requirements for standing.

In evaluating standing in a pre-enforcement challenge to a speech regulation, our "inquiry focuses on (1) whether the plaintiffs have articulated a concrete plan to violate the law in question, (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the challenged statute." Alaska Right to Life Pol. Action Comm. v. Feldman , 504 F.3d 840, 849 (9th Cir. 2007) (quoting Getman , 328 F.3d at 1094 ). "The potential plaintiff must have an ‘actual or well-founded fear that the law will be enforced against’ " it. Id. at 851 (quotin...