Twitter, Inc. v. Paxton

Background

Twitter alleged that it operates an online platform and uses content-moderation policies to limit the reach of harmful or misleading information. It further alleged that, around the January 6, 2021 attack on the United States Capitol, it restricted or suspended accounts that violated policies against glorifying or encouraging violence or interfering with elections and other civic processes. One of the permanently suspended accounts belonged to President Donald Trump.

The Texas Attorney General’s Consumer Protection Division issued Twitter a Civil Investigative Demand on January 13, 2021. The demand sought specified documents concerning an investigation into possible violations of the Texas Deceptive Trade Practices–Consumer Protection Act involving Twitter’s representations and practices about what users could post. Twitter alleged that Paxton initiated the investigation and issued the demand to punish Twitter for content-moderation decisions he opposed.

Twitter brought one claim under 42 U.S.C. § 1983, alleging that the First Amendment barred Paxton’s retaliatory investigation and demand. Twitter requested an injunction preventing Paxton and related personnel from enforcing the demand or continuing the investigation, along with a declaration that the demand and investigation were unlawful retaliation.

Arguments and analysis

Paxton moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction, 12(b)(2), which concerns personal jurisdiction over the defendant, and 12(b)(3), which concerns improper venue. He alternatively sought transfer under 28 U.S.C. § 1404 and argued that the court should abstain under the doctrine associated with Railroad Commission of Texas v. Pullman Co.

The court held that Paxton was subject to personal jurisdiction in California. It relied on Twitter’s allegations that Paxton, acting as Texas Attorney General, engaged in conduct aimed at chilling the speech of a California resident. The court also held that venue was proper because Twitter alleged that it resides in the district and that the demand injured it there.

The court then addressed whether Twitter’s claims were ready for review. Paxton relied on cases holding that a challenge to a government demand that is not self-executing is premature when the government has not yet asked a court to enforce it. The recipient may decline to comply without penalty until a court orders compliance, and enforcement proceedings provide an opportunity to raise objections.

The court rejected Twitter’s argument that its retaliation theory made those principles inapplicable. It explained that a First Amendment retaliation claim requires protected activity, conduct that would chill a person of ordinary firmness from continuing that activity, and a showing that the protected activity substantially or materially motivated the defendant’s conduct. The court found that Twitter cited no case holding that an allegedly retaliatory investigation, standing alone, was a legally sufficient adverse action in the circumstances presented.

The court distinguished cases involving government employees, where an investigation could threaten dismissal, and cases involving serious consequences such as a substantial fine, arrest, or loss of child custody. Here, the Attorney General’s Office could not itself impose a sanction for noncompliance with the demand. It would first have to seek enforcement in court, where the only possible adverse consequence identified by the court would be a judicial finding that the demand was enforceable.

Because no action had yet been taken to enforce the demand, the court held that Twitter’s lawsuit was premature and subject to dismissal under Rule 12(b)(1). The court did not address Paxton’s alternative arguments about inconvenient venue or abstention.

Disposition

Judge Maxine M. Chesney granted Paxton’s motion to dismiss. The court dismissed the action. The opinion did not state that the dismissal was with or without prejudice, and it did not decide whether Paxton’s investigation or Civil Investigative Demand violated the First Amendment.