That’s not quite the end of it, though.
Best mugshot ever
A federal judge in California on Tuesday dismissed a lawsuit brought by Twitter against Texas Attorney General Ken Paxton, whose legal efforts to investigate the social media platform after it suspended President Donald Trump’s account led the company to sue.
Twitter’s lawsuit included a request for a temporary restraining order that would keep Paxton and his office from enforcing a demand that seeks documents revealing the company’s internal decision making processes for banning users. Judge Maxine M. Chesney said the company’s legal action was “premature.”
Paxton, a passionate supporter of Trump, sent Twitter a civil investigative demand after it banned Trump from its platform following January’s deadly siege at the U.S. Capitol. Twitter wrote in its suit responding to Paxton that it sought to stop him “from unlawfully abusing his authority as the highest law-enforcement officer of the State of Texas to intimidate, harass, and target Twitter in retaliation for Twitter’s exercise of its First Amendment rights.”
The company claimed Paxton’s “retaliatory” investigation violated the First Amendment as an inappropriate use of government authority.
“Twitter’s lawsuit was little more than an attempt to avoid answering my questions about their large-scale censorship and content-moderation policies,” Paxton said in a statement Tuesday.
See here and here for the background. I Am Not A Lawyer, but when I see that the suit was dismissed because it was “premature”, that says to me this didn’t have to do with the merits or legality of the suit, just the timing. The Trib story doesn’t give any explanation of that, so I looked around and eventually found this AP story, which answered my question.
In her Tuesday ruling, Senior U.S. District Judge Maxine Chesney of San Francisco ruled that Paxton’s administrative summonses were not “self-executing,” meaning that Twitter was not bound to comply with them absent a court order.
In her seven-page opinion, Chesney noted that Paxton had taken no court action to enforce his summonses and that Twitter was not bound to comply with them without court action. So, she dismissed Twitter’s suit, noting that its request for an injunction or court declaration against Paxton was premature.
Law and Crime explains further.
Paxton’s office issued civil investigative demands (CID)—subpoena-like requests for information— to Twitter, Google, Facebook, Amazon, and Apple, seeking the companies’ content moderation policies and practices. The Texas attorney general, who has been under the legal microscope himself due to securities fraud charges and allegations of bribery, said that for years the tech companies “have silenced voices in the social media sphere and shut down competing companies and platforms,” couching his concern as a First Amendment issue that “chills free speech.”
Twitter responded by suing Paxton in the U.S. District Court for Northern California, seeking an injunction barring the AG from “initiating any action” to enforce the investigatory demands and a declaration that the probe is barred by the First Amendment as “unlawful retaliation against Twitter for its moderation of its platform, including its decision to permanently suspend President Trump’s account.”
In a seven-page ruling, U.S. District Judge Maxine M. Chesney, an appointee of former President Bill Clinton, found that Paxton opening a probe and issuing CIDs to Twitter did not amount to a “cognizable adverse action” against the company as required for a First Amendment retaliation claim.
Chesney reasoned that, unlike subpoenas, CIDs like the one issued by the attorney general’s office, are not “self-executing” discovery instruments, meaning that they can be ignored, without penalty, unless an additional court order is sought.
“[T]he Office of the Attorney General has no authority to impose any sanction for a failure to comply with its investigation. Rather, the Office of the Attorney General would be required to go to court, where the only possible consequence adverse to Twitter would be a judicial finding that the CID, contrary to Twitter’s assertion, is enforceable,” Chesney wrote. “Accordingly, as, to date, no action has been taken to enforce the CID, the Court finds Twitter’s lawsuit is premature, and, as such, is subject to dismissal.”
In other words, because Twitter is not currently obligated to comply with Paxton’s demand for access to its communications and moderation policies, it’s too early in the legal process for a federal court to decide the controversy on the merits.
Should Paxton pursue a court order, Twitter would likely make the same arguments regarding the investigation being barred as unlawful retaliation under the First Amendment, resulting in a merit-based ruling.
I think that’s pretty clear. I hadn’t realized that Paxton had taken the same action with those other companies, who I guess either decided to ignore them or wait and see what happened with the Twitter case. In any event, now they all know – this is just sound and fury, at least for now. We’ll see if Paxton raises the ante, or if making the news was all he was interested in.
RIPE ONLY FOR DISMISSAL
A copy of the California USDC’s order is here:
https://www.texasattorneygeneral.gov/sites/default/files/images/admin/2021/Press/TwittervTexas%20Dismiss.pdf?
Note that the judge also found that venue was proper in California, which is not a trivial matter because California is in a different circuit and there is no precedent that is directly on point, which then requires legal reasoning by analogy.
One line of cases invoked by Twitter involves retaliation in the public employment context, but there is no employment relationship here. Another line involves civil investigative demands or subpoenas in other contexts.
The order does cite cases from the Fifth Circuit, as urged by Defendant Paxton, such as Atlantic Richfield Co. v. Federal Trade Comm’n, 546 F.2d 646, 650 (5th Cir. 1977) (holding challenge to subpoenas not ripe for review; noting plaintiff could not be forced to comply with the subpoenas nor subjected to any penalties for noncompliance until ordered to comply pursuant to appropriate enforcement proceedings in which plaintiff may assert its . . . objections).
It’s amazing to see Paxton’s office argue — to procure dismissal — that his civil investigate demands are, essentially, toothless.
Twitter, Inc. v. Ken Paxton, Case No. 21-cv-01644-MMC (ND Cal. May 5, 2011)(Order granting Texas Attorney General’s Motion to Dismiss on the ground that Twitter’s lawsuit is premature because no action has been taken to enforce the AG’s Civil Investigative Demand (CID)).
OOPS – That was the wrong year in parentheses.
Corrected case cite: Twitter, Inc. v. Ken Paxton, Case No. 21-cv-01644-MMC (ND Cal. May 5, 2021) (Order Granting Defendant’s Motion to Dismiss Action for lack of ripeness).
The Civil Investigative Demands (PDFs) to multiple internet companies – Amazon
Apple, Facebook, Google, and Twitter — are linked from Paxton’s January 13, 2021 press release. See here:
https://www.texasattorneygeneral.gov/news/releases/ag-paxton-issues-civil-investigative-demands-five-leading-tech-companies-regarding-discriminatory