The legal aftermath of the Trump-Twitter saga

After the pro-Trump rally descended into an assault on the US Capitol, Twitter banned President Trump for life from its platform. For a presidency mired in controversies, the riots were finally a bridge too far, with other social media sites following suit.

Texas' Attorney General, Ken Paxton, had himself attended the day's rally – though, to be fair, no allegations of untoward behavior have been alleged against him personally.

Nevertheless, Paxton decided to investigate not Trump, but Twitter. This is despite the tragedies of the January 6 events of the twice impeached president, including  five deaths, desecration of the Capitol building, threats to members of Congress, Trump's delay in asking protestors to stay peaceful, and an ongoing January 6 Select Committee investigation revealing planning by key insiders and potentially even the president himself. It also goes without mention that Trump's principal communication with rally followers was via Twitter's own platform.

Civil Investigative Demand (CID)

Following Trump's Twitter ban, Texas' Office of the Attorney General served a Civil Investigative Demand (CID) on Twitter. The demand required Twitter to produce documents in relation to its decisions about content moderation. As California's Ninth Circuit reiterated in its recent decision Twitter, Inc. v Paxton, No. 21-15869 (9th Cir. 2022), Mr. Paxton had tweeted Twitter was “closing conservative accounts” and that Twitter and others were “ready/willing to be the left’s Chinese-style thought police,” avowing to “fight them with all [he's] got.”

After talks with Paxton's office broke down, Twitter opted not to fight Paxton's right to issue the CID or Texas' deceptive trade practices law in a Texas court. Instead, it fought Paxton on U.S. First Amendment grounds in federal court, suing in its home turf at the Northern District of California. Twitter argued the CID was a retaliation, by a government actor, for speech that is First Amendment protected. As remedy, Twitter asked the court to enjoin Paxton, to prevent him from enforcing the CID.

In May of 2021, the court held against Twitter in Twitter, Inc. v Paxton, No. 21-cv-01644-MMC. On appeal, the Ninth Circuit affirmed on the same grounds on March 2 of this year (Twitter, Inc. v Paxton, No. 21-15869 (9th Cir. 2022).

Paxton was taking a victory lap shortly after the ruling, touting his win on Twitter: "BREAKING: Last year, I launched an investigation into Twitter’s coordinated cancellation of Trump & conservative voices/platforms. Twitter sued me to get me to stop. I punched back & won at the district court &, just today, won at the appeals court. Big Tech is not above the law!"

Legal considerations

The fact Twitter allowed the tweet itself to publish would tend to diminish Paxton's crying foul play toward conservative speech.

In fact, the decisions themselves were not based on the merits (i.e., the substance) of the case, but rather on a technicality albeit an important one: judicial ‘ripeness’.

The injury-in-fact prong and the hardship prong. Regarding the former, federal jurisprudence hinges on injuries that are tangible and concrete, versus abstract, hypothetical and premature. By way of analogy, think of the bully who actually punches you, leaving a black eye, versus the one who just threatens it.

The hardship prong goes further, determining whether the action (Twitter, Inc. v Paxton, No. 21-15869 (9th Cir. 2022)) "requires an immediate and significant change in. . . conduct of [the aggrieved’s] affairs with serious penalties attached to noncompliance."

The Ninth Circuit held Texas had not yet made allegations against Twitter, as the CID was never complied with. Twitter could have challenged the CID – and its requirement to produce documents – in a Texas court, but chose not to. It reasoned adjudicating the case now would require a determination before Texas can even investigate its case.

The Ninth Circuit and its lower court are considered liberal courts, hardly supporting Paxton's allegations of liberal suppression of conservative speech. Indeed, the actions of liberal and conservative judges alike, many Trump appointees, on related issues have been a marvel of our living democracy. 

Paxton's decision to pursue Twitter is questionable to be kind and Twitter's ban may be considered a practical business decision, one traditionally supported by business-oriented conservatives.

American free speech is an expansive concept, the holy kernel of the secular U.S. Constitution, and in that context, the Ninth Circuit’s clarity is invaluable. Twitter's legal battles are likely not over, as Paxton is now emboldened to pursue his investigation; but fortunately, the company is also not wanting of resources.

Cameron Tousi is managing partner of the boutique firm Integrated Professional (IP) Law Leaders iplawleaders.com/

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