Texas Attorney General Ken Paxton's probe of Twitter's editorial decisions, including its ban of former President Donald Trump, “inflicted injury from the moment it was announced,” a coalition of civil rights groups is telling a federal appellate court
The organizations are urging the 9th Circuit Court of Appeals to grant Twitter's request to revive its lawsuit accusing Paxton of violating the First Amendment.
“Online hosts of user-generated content like Twitter and other technology companies moderate the content posted by users by making judgments,” the Center for Democracy & Technology, Electronic Frontier Foundation and other groups write in a friend-of-the-court brief filed Friday with the 9th Circuit Court of Appeals. “The First Amendment prohibits the government from interfering with those judgments, even -- or especially -- when they are controversial and government officials disagree with them.”
Paxton launched a broad probe of Twitter, Google, Facebook and other companies earlier this year, shortly after they suspended Trump's account. The companies did so soon after the former president's supporters stormed Capitol Hill in an attempt to prevent the Senate from confirming Joe Biden's victory in last year's presidential election.
Paxton 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.” (Despite Paxton's accusation, researchers haven't found any evidence to support claims that tech companies' content moderation decisions show a bias against conservative viewpoints.)
In March, Twitter sued Paxton, arguing that his investigation into editorial policies 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.
Paxton countered that the request was premature, given that he hadn't attempted to force the company to comply with requests for information.
He also argued the probe doesn't violate the First Amendment, because he's investigating 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 wrote in papers filed earlier this year.
U.S. District Court Judge Maxine Chesney in the Northern District of California dismissed Twitter's lawsuit as premature, stating that Paxton hadn't taken any steps to force Twitter to comply with his demands for information.
Twitter is now appealing that decision to the 9th Circuit. The appellate court recently refused to grant Twitter's request for an “emergency” injunction against Paxton on an expedited basis, but can still issue an injunction in the future.
The Center for Democracy & Technology and other groups argue that Twitter's lawsuit isn't premature, because investigations by law enforcement officials can have a chilling effect on publishers -- even before officials attempt to force companies to comply with subpoenas.
“Longstanding precedent from both the Supreme Court and this Court acknowledges the chilling effect caused by the threat of government punishment of speech and accordingly allows pre-enforcement challenges in the face of such threats,” the groups write.
They add that “retaliatory” government investigation, such as Paxton's, “chill content moderation, particularly by smaller providers, from the moment they are initiated.”
A state attorney general's demand for documents about content moderation, especially when combined with public statements criticizing the company, “sends a strong message of disapproval and threat of legal consequences for the host if it continues its disfavored content moderation actions,” the organizations write.
The Reporters Committee for Freedom of the Press and the Media Law Resource Center argue in a separate friend-of-the-court brief that Paxton shouldn't be able to use Texas's consumer protection law as the basis for an investigation into Twitter's editorial practices.
“Deceptive practices laws pose special concerns when they trench on decisions by private actors to control political content on their platforms, especially when the government claims the authority to impose a standard of viewpoint neutrality -- as it sees it -- under the guise of consumer protection,” the media groups write. “Were the government able to deploy consumer protection laws in this way, it would invariably seek to favor viewpoints perceived as supportive and disfavor viewpoints perceived as critical.”