• by Wendy Davis  @wendyndavis, March 2, 2022

Siding against Twitter, a federal appellate panel Wednesday rejected the company's attempt to halt Texas Attorney General Ken Paxton's investigation of the platform's editorial policies.

A three-judge panel of the 9th Circuit Court of Appeals said Twitter's claims against Paxton are premature for several reasons including that Paxton hasn't yet sought a court order forcing Twitter to provide him with information.

“This case is not prudentially ripe,” Circuit Judge Ryan Nelson wrote in an opinion joined by Circuit Judges Mark Bennett and Patrick Bumatay.

The dispute dates to last January, shortly after Twitter (and the other major social platforms) blocked former president Donald Trump's account.

Twitter banned Trump on January 6, 2021, hours after his supporters stormed Capitol Hill in an attempt to prevent the Senate from confirming Joe Biden's victory in the 2020 presidential election. Facebook also banned Trump on January 6, while YouTube did so several days later.

Paxton, a vocal critic of tech companies, then launched a wide-ranging investigation of major tech companies. As part of that initiative, 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.”

Despite Paxton's accusations, researchers haven't found any evidence to support claims that tech companies' disproportionately suppress conservative viewpoints.

Twitter sued Paxton in March, 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.

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.

Paxton countered that his investigation doesn't raise free speech concerns, arguing that the probe centers on whether Twitter violated a state consumer protection law by allegedly misleading consumers about its content standards.

He specifically pointed to statements by Twitter executives that the company doesn't consider viewpoint when making decisions about users' posts, and argued that he was entitled to investigate the truth of those statements.

“Twitter cannot establish that it has a First Amendment right to lie to consumers about its content moderation policies,” Paxton wrote.

Several outside organizations, including the Reporters Committee for Freedom of the Press and the Media Law Resource Center, weighed in on Twitter's side. Those groups specifically argued to the 9th Circuit that government officials shouldn't be able to draw on a consumer protection law to investigate a company's editorial decisions.

“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.

The appellate panel disagreed with Twitter and its supporters.

“Twitter argues that [Paxton's] investigation is illegitimate because matters of 'editorial judgment' can never be investigated,” Nelson wrote for the panel.

“We reject these arguments ...Twitter’s statements can be investigated as misleading just like the statements of any other business,” he added.

A Twitter spokesperson said the company continues to believe Paxton “is misusing the powers of his office to infringe on Twitter’s fundamental rights in an attempt to silence free speech.”

The spokesperson added: “We’ll continue working to advance our principles and defend the open internet.”