• by Wendy Davis  @wendyndavis, March 30, 2021

Twitter isn't entitled to a court order prohibiting Texas Attorney General Ken Paxton from continuing with a probe into the company's content moderation practices, he is telling a federal judge.

In papers filed Monday, Paxton argues that Twitter's request is premature, given that he hasn't yet attempted to force the company to comply with requests for information.

“Disputes about non-self-executing production requests are not ripe until someone tries to enforce the request by attaching legal consequences. That has not happened here,” Paxton writes in papers filed with U.S. District Court Judge Maxine Chesney in the Northern District of California.

Alternatively, Paxton says the matter should be transferred to Texas, because it stems from a Texas agency's interpretation of a state law.

His papers come in response to a lawsuit filed by Twitter earlier this month, when it sought a court order barring Paxton from carrying out his investigation into the platform's editorial policies -- including its decision to ban former President Donald Trump.

Twitter is also seeking a declaratory judgment that Paxton's investigation violates the First Amendment.

In January, shortly after Twitter and other tech companies suspended Trump's account, Paxton demanded that Google, Facebook, Twitter, Amazon Web Services and Apple provide detailed information to him regarding their content-moderation policies.

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

Twitter sued Paxton in March, arguing he violated the First Amendment by initiating the probe in retaliation for editorial decisions.

Numerous judges throughout the country have said that private companies like YouTube and Facebook have a First Amendment right to decide what speech to allow on their platforms.

In addition to arguing that the case should either be dismissed or transferred to Texas, Paxton disputes that his investigation violates Twitter's First Amendment rights.

He claims the probe centers on whether Twitter violated a state consumer protection law by misrepresenting its editorial policies.

“Even if Twitter has a First Amendment right to choose discriminatory content-moderation policies, the Constitution does not empower it to mislead consumers about those policies,” Paxton writes.

Several years ago, Google was involved in a somewhat similar legal battle with Mississippi Attorney General Jim Hood, who had subpoenaed a host of documents relating to copyright infringement by companies that appear in Google's search results.

Google sought a court order prohibiting Hood from continuing with the probe.

A federal district court judge sided with Google in 2015, writing that the company's decisions about what to publish were constitutionally protected, and that interfering with that judgment by threatening legal action “would likely produce a chilling effect on Google’s protected speech, thereby violating Google’s First Amendment rights.”

But a federal appellate court lifted the injunction in 2016, ruling that it was issued prematurely because Google went to court before Hood took steps to force it to comply with the subpoena.

Google and Hood later resolved their dispute.

The dispute between Twitter and Paxton has drawn much outside interest, with groups including the Reporters Committee for Freedom of the Press, and the Internet Association weighing in on Twitter's side.

Chesney is scheduled to hold a hearing on the matter on May 7.