• by Wendy Davis  @wendyndavis, November 2, 2021

Twitter is pressing a federal appeals court to revive claims that Texas Attorney General Ken Paxton violated the First Amendment by launching an investigation into the company's editorial decisions -- including the decision to ban former President Donald Trump.

“One day after Twitter removed President Trump’s account from its platform, Attorney General Paxton issued a Tweet comparing Twitter to the 'Chinese-style thought police' and vowing to 'fight them with all I’ve got,'” Twitter writes in papers filed Monday with the 9th Circuit Court of Appeals.

Four days after Paxton posted that tweet, he announced he was investigating the company, Twitter adds. As part of that investigation, Paxton “sought sensitive internal documents, including Twitter’s internal content-moderation policies and procedures,” the company says.

Twitter blocked Trump on January 6, hours after his supporters stormed Capitol Hill in an attempt to prevent the Senate from confirming Joe Biden's victory in last year's presidential election. Facebook also banned Trump on January 6, while YouTube did so several days later.

Paxton launched an investigation of all three companies in January.

Twitter sued Paxton in March, arguing that his investigation into editorial policies is unconstitutional. 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 Twitter's lawsuit was premature, given that he hadn't attempted to force the company to hand over information. He also claimed he's investigating whether Twitter violated a state consumer protection law by allegedly misrepresenting its editorial policies.

U.S. District Court Judge Maxine Chesney in the Northern District of California dismissed Twitter's lawsuit as premature.

Twitter recently appealed that ruling to the 9th Circuit.

The company has garnered support from outside advocacy groups including the Reporters Committee for Freedom of the Press and the Media Law Resource Center, which argued in a friend-of-the-court brief that Paxton shouldn't be able to use Texas's consumer protection law to investigate Twitter's editorial practices.

“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,” those groups wrote.

Paxton recently asked the 9th Circuit to uphold Chesney's ruling, contending that Twitter's lawsuit is “unripe.”

He argued that Twitter “will have a full and fair opportunity to assert its claims or defenses” if his office ever attempts to enforce its demand for information.

Twitter counters in its newest papers that its claim isn't premature because its First Amendment rights are currently being “chilled” by Paxton's demands.

“The complaint alleges that the goal of ... Paxton’s investigation is not just to require production of documents, but also to influence Twitter’s ongoing content-moderation decisions,” Twitter writes. “That harm -- the chilling of Twitter’s editorial decision making -- has already been and continues to be inflicted.”

The 9th Circuit is scheduled to hear arguments in the case on January 10.