Twitter, Inc. v. Paxton

Background

Twitter filed the underlying action after Ken Paxton, in his official capacity as Attorney General of Texas, issued a Civil Investigative Demand, or CID. A CID is a formal demand for documents in connection with an investigation. The demand sought documents described as relevant to a possible investigation under sections 17.46(a) and (b) of the Texas Deceptive Trade Practices–Consumer Protection Act concerning Twitter’s representations and practices about what could be posted on its platform.

Twitter asserted one claim under 42 U.S.C. § 1983, alleging that the Attorney General’s investigation and CID were retaliatory and violated the First Amendment. It sought declaratory relief and an injunction barring enforcement of the CID and continuation of the investigation into its editorial policies and practices.

In a May 11, 2021 order, the court granted the Attorney General’s motion to dismiss, finding that Twitter’s action was premature. Judgment was entered the same day, and Twitter filed a notice of appeal on May 14, 2021. Twitter then moved for an injunction pending appeal, asking the court to bar the Attorney General from enforcing the CID or continuing the investigation.

Legal Standard

For an injunction pending appeal, courts consider whether the moving party has shown: (1) a likelihood of success on the merits; (2) likely irreparable harm without relief; (3) that the balance of equities favors an injunction; and (4) that an injunction would serve the public interest. Alternatively, a party may show serious questions on the merits if the balance of hardships sharply favors that party.

Court’s Analysis

The court held that Twitter had not made the required showing on the first factor—likelihood of success on the merits—and therefore denied the motion without addressing the remaining factors.

The court relied on the reasoning in its May 11 order and on Reisman v. Caplin and later cases. It found that the CID was not self-executing and that the Attorney General had taken no steps to enforce it. The court explained that the Attorney General could not himself impose sanctions for noncompliance and that an enforcement action would provide a judicial determination of Twitter’s challenges.

The court also considered Twitter’s new argument that financial penalties might result if a court found that Twitter violated the Texas consumer-protection law. The court found that the Attorney General lacked authority to impose such a sanction himself, and the record contained no evidence that he had threatened to file an enforcement action or that such a filing was otherwise imminent.

Disposition

The court denied Twitter’s motion for a preliminary injunction pending appeal. The order did not address the remaining injunction factors. Judge Maxine M. Chesney signed the order on June 8, 2021.