Ninth Circuit reluctant to revive Twitter’s retaliation suit against Texas

A panel of Ninth Circuit judges on Monday signaled a reluctance to revive Twitter's free speech retaliation suit against Texas Attorney General Ken Paxton, despite claims that the AG's probe into Twitter's censorship practices violates the First Amendment. Twitter sued Paxton this past March, claiming his demand for internal documents on Twitter’s content moderation policies was intended to retaliate against the platform for banning former President Donald Trump following a deadly insurrection at the U.S. Capitol on Jan. 6, 2021. In May, a federal judge dismissed Twitter’s lawsuit as unripe because the Republican AG’s subpoena can only be enforced in state court. Senior U.S. District Judge Maxine Chesney concluded the social media platform suffered no concrete harm from a toothless subpoena.

On Monday, Twitter attorney Peter Neiman urged a panel of three Trump-appointed circuit judges to reverse that decision, arguing the AG’s investigation seeks to coerce the platform into altering its speech in violation of the First Amendment. “Here the retaliatory threat — the investigation, the [civil investigative demand] — put Twitter under immediate pressure to change the moderation decisions that it makes every day,” Neiman told the panel. U.S. Circuit Judge Ryan Nelson said he couldn’t find in Twitter's lawsuit one example of how the company altered its speech in response to the AG’s supboena. Neiman replied that Twitter doesn’t have to show that it changed its content moderation policies to sue for First Amendment retaliation. “The idea here is that we have to show conduct that is severe enough to chill a person of reasonable firmness,” Neiman said. U.S. Circuit Judge Mark Bennett suggested that allowing Twitter to sue over an unenforced subpoena could open the door for other companies involved in politics to file First Amendment retaliation suits against state AGs to thwart legitimate investigations. “I’m trying to look for a limiting ripeness principle,” Bennett said. “Attorneys general do a lot of information gathering.”