The 9th U.S. Circuit Court of Appeals dismissed a lawsuit by Twitter accusing Texas Attorney General Ken Paxton of retaliating for the social media giant's ban of former President Donald Trump.
The procedural ruling Wednesday allows the continuation of an investigation by Texas into Twitter's expulsion of Trump last year, the Washington Times reported.
Twitter sued in response to Paxton's issuance of a civil investigative demand for information about Twitter's content moderation policies.
Texas Attorney General Ken Paxton
The Big Tech company contends Paxton's demand amounts to government retaliation for speech protected by the First Amendment.
A three-judge panel of the 9th Circuit said Wednesday that Twitter's case was not ready for a judicial decision, affirming a lower court's to dismiss the case. The lower court noted Paxton had not yet made an allegation against Twitter.
One year ago, Paxton warned in a Zoom conference call organized by the Media Research Center and attended by WND that unless states immediately began addressing Big Tech censorship, "we may lose our opportunity to address some of the wrongs that are occurring."
Paxton said that as soon as he was re-elected, his office began researching the issue, consulting with scholars, experts and attorneys with anti-trust experience. He concluded Texas needed to begin with a case against Google for monopolistic behavior.
He said Google's near "absolute" control of advertising – representing the buyers, sellers and the exchange – is like a baseball game in which the pitcher, catcher, batter and umpire are all playing for the same team.
Paxton's office also has probed the actions of Twitter, Amazon, Apple and Google in shutting down Parler.
“While Twitter could suffer hardship from withholding court consideration, adjudicating this case now would require determining whether Twitter has violated Texas’s unfair trade practices law before [Texas’ attorney general] has a chance to complete its investigation,” wrote Judge Ryan D. Nelson in the court’s opinion.
“Any hardship to Twitter from the alleged chill of its First Amendment rights was insufficient to overcome the uncertainty of the legal issue presented in the case in its current posture,” Judge Nelson wrote.
The judges’ ruling against Twitter does not spell victory for Mr. Paxton or mean that his investigation will force Twitter to restore Mr. Trump’s access.
The court made clear that determining whether content moderation is protected speech or political censorship is at the heart of the case, and the court said that misrepresentations about content moderation policies are not constitutionally protected speech.
“If Twitter’s statements are protected commercial speech, then [the Texas attorney general’s] investigation would be unlawful if it would chill a person of ordinary firmness from speaking, and if it was caused in substantial or motivating part by Twitter’s content moderation decisions,” the judge wrote.
“But if Twitter’s statements are misleading commercial speech, and thus unprotected, then Twitter’s content moderation decisions would be a proper cause for the investigation, because they would be the very acts that make its speech misleading,” he said.
Mr. Paxton’s office did not comment on the lawsuit’s outcome on Wednesday.
A Twitter spokesperson said the decision did not change the company’s view of Mr. Paxton‘s actions.
“In this case, we still believe the Texas Attorney General is misusing the powers of his office to infringe on Twitter‘s fundamental rights in an attempt to silence free speech,” the spokesperson said in a statement.
Twitter permanently banned the account of President Trump and other conservatives after the riot at the U.S. Capitol in January. Paxton then announced an investigation into Twitter and four other Big Tech companies for what he called "the seemingly coordinated de-platforming of the President."
Paxton is seeking a variety of information from the companies, including their content moderation policies and internal communications. But Bloomberg reported Twitter is resisting investigators' demands for "highly confidential documents"
Twitter claims Paxton is retaliating against the company for banning Trump's account.
"Paxton made clear that he will use the full weight of his office, including his expansive investigatory powers, to retaliate against Twitter for having made editorial decisions with which he disagrees," Twitter said in its complaint.
Paxton led a lawsuit that challenged the 2020 election results in six states based on evidence of fraud and irregularities. Attorneys general from 17 other states joined in the complaint, which was rejected by the Supreme Court. The high court reasoned that fraud in an election in one state would not impact the results of the election in another state.
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