• by Wendy Davis , Staff Writer @wendyndavis, March 31, 2022

On October 28, 2020, Twitter's then CEO Jack Dorsey testified to the Senate Commerce Committee that the platform's editorial policies aren't based on ideology.

“We ensure that all decisions are made without using political viewpoints, party affiliation, or political ideology, whether related to automatically ranking content on our service or how we develop or enforce the Twitter Rules,” he said in his written testimony.

Dorsey later made similar statements to the Judiciary Committee and to individual lawmakers, who were then investigating the practices of large social platforms.

Even though Dorsey obviously made those statements to explain the company's practices, and not as part of a sales pitch, Texas Attorney General Ken Paxton has argued for months that the comments were a form of “commercial speech.”

What's more, Paxton says he is therefore entitled to investigate whether those statements were misleading -- in which case Twitter could have violated a state consumer protection law.

Remarkably, a panel of judges on the 9th Circuit Court of Appeals appeared to agree with Paxton, suggesting in a written opinion that Dorsey's statements might be a form of commercial speech.

Commercial speech doesn't have the same kind of First Amendment protection from government interference as editorial or political speech.

“If Twitter’s statements are misleading commercial speech, and thus unprotected, then Twitter’s content moderation decisions would be a proper cause for the investigation, because they would be the very acts that make its speech misleading,” Circuit Judge Ryan Nelson wrote in an opinion joined by Circuit Judges Mark Bennett and Patrick Bumatay.

That statement came in a legal dispute that dates to last year, shortly after Twitter (and other major platforms) blocked former president Donald Trump's account.

Twitter and Facebook banned Trump on January 6, 2021, hours after his supporters stormed Capitol Hill, while YouTube banned the account several days later.

Paxton, among the loudest critics of tech companies, then launched a wide-ranging investigation of their editorial policies.

As part of that probe, he demanded that Google, Facebook, Twitter, Amazon Web Services and Apple disclose detailed information regarding their content-moderation policies.

He said the “seemingly coordinated de-platforming” of Trump and others “silences those whose speech and political beliefs do not align with leaders of Big Tech companies.”

Researchers haven't found any evidence to support claims that tech companies disproportionately suppress conservative viewpoints.

Twitter responded by suing Paxton, arguing that his investigation violates the First Amendment. The company sought a court order barring Paxton from carrying out the probe, and a declaratory judgment that the investigation was unconstitutional.

A trial judge rejected Twitter's suit as premature, following which Twitter asked the 9th Circuit to revive the claims that Paxton was interfering with the company's First Amendment right to decide what speech to allow on its platform.

A three-judge panel of the 9th Circuit ruled against Twitter earlier this month.

“Even if content moderation is protected speech, making misrepresentations about content moderation policies is not,” Nelson wrote.

“Misleading commercial speech is not protected,” the judge added in parentheses, summarizing a prior Supreme Court case dealing with pharmacists' ability to advertise the price of prescription drugs.

Twitter is now asking for a new hearing in front of a larger panel of 9th Circuit judges.

Among other arguments, Twitter says the panel shouldn't have applied standards regarding advertising to statements about content moderation.

“There was no need (or basis) to hold -- in advance of any analysis of the facts -- that Twitter’s statements about political neutrality in content moderation should be judged on the same standards applicable to ordinary advertisements of a commercial enterprise selling widgets, rather than one distributing and moderating news and information,” the company writes.

“If left intact, the Panel’s ruling on this point threatens to open the flood-gates to governmental investigations probing not only the general statements of information disseminators about their editorial policies and practices, but also each and every particular editorial decision that any investigator might want to test as potentially out-of-line with one of those general statements,” the company writes. “This would inevitably encourage law-enforcement officials to delve into, scrutinize, and potentially impose punishments for particular editorial decisions.”