Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 1 of 20
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`TWITTER, INC.,
`
`Plaintiff-Appellant,
`
`v.
`
`KEN PAXTON, in his official capacity
`as Attorney General of Texas,
`Defendant-Appellee.
`
`No. 21-15869
`
`D.C. No.
`3:21-cv-01644-
`MMC
`
`OPINION
`
`Appeal from the United States District Court
`for the Northern District of California
`Maxine M. Chesney, District Judge, Presiding
`
`Argued and Submitted January 10, 2022
`San Francisco, California
`
`Filed March 2, 2022
`
`Before: Mark J. Bennett, Ryan D. Nelson, and
`Patrick J. Bumatay, Circuit Judges.
`
`Opinion by Judge R. Nelson
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 2 of 20
`
`2
`
`TWITTER V. PAXTON
`
`SUMMARY*
`
`Civil Rights
`
`The panel affirmed the district court’s order dismissing,
`
`on ripeness grounds, an action brought by Twitter against
`Ken Paxton, the Attorney General of Texas, in his official
`capacity, alleging First Amendment retaliation.
`
` After the events at the U.S. Capitol on January 6, 2021,
`Twitter banned President Donald Trump for life. Soon after
`Twitter announced the ban, the Texas Office of the Attorney
`General (OAG) served Twitter with a Civil Investigative
`Demand (CID) asking it to produce various documents
`relating to its content moderation decisions. Twitter sued
`Paxton, in his official capacity, in the Northern District of
`California, arguing that the CID was government retaliation
`for speech protected by the First Amendment. Twitter asked
`the district court to enjoin Paxton from enforcing the CID
`and from continuing his investigation, and to declare the
`investigation unconstitutional.
`
`The panel held that this case was not prudentially ripe.
`
`The issues were not yet fit for judicial decision because OAG
`has not yet made an allegation against Twitter, because the
`facts were not yet developed, and because Twitter need not
`comply with the CID, could challenge it if it was enforced,
`and could have challenged the CID in Texas state court, Tex.
`Bus. & Com. Code § 17.61(g). While Twitter could suffer
`hardship from withholding court consideration, adjudicating
`this case now would require determining whether Twitter
`
`* This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 3 of 20
`
`TWITTER V. PAXTON
`
`3
`
`has violated Texas’s unfair trade practices law before OAG
`has a chance to complete its investigation. 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.
`
`COUNSEL
`
`Peter G. Neiman (argued), Alex W. Miller, and Rishita
`Apsani, Wilmer Cutler Pickering Hale and Dorr LLP, New
`York, New York; Mark D. Flanagan, Wilmer Cutler
`Pickering Hale and Dorr LLP, Palo Alto, California; Patrick
`J. Carome, Ari Holtzblatt, Anuradha Sivaram, and Susan
`Pelletier, Wilmer Cutler Pickering Hale and Dorr LLP,
`Washington, D.C.; for Plaintiff-Appellant.
`
`Michael Kenneth Johnson
`Lewis Brisbois Bisgaard & Smith LLP, Walnut Creek,
`California
`
`Lanora C. Pettit (argued), Principal Deputy Solicitor
`General; Benjamin D. Wilson, Deputy Solicitor General;
`Judd E. Stone II, Solicitor General; William T. Thompson,
`Deputy Chief, Special Litigation Unit; Patrick Sweeten,
`Chief, Special Litigation Unit; Brent Webster, First
`Assistant Attorney General; Ken Paxton, Attorney General;
`Office of
`the Attorney General, Austin, Texas; for
`Defendant-Appellee.
`
`Katie Townsend, Bruce D. Brown, Gabe Rottman, and
`Mailyn Fidler, Reporters Committee for Freedom of the
`Press, Washington, D.C., for Amici Curiae Reporters
`Committee for Freedom of the Press and Media Law
`Resource Center.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 4 of 20
`
`4
`
`TWITTER V. PAXTON
`
`Caitlin Vogus, Samir Jain, and Emma Llansó, Center for
`Democracy & Technology, Washington, D.C., for Amici
`Curiae Center for Democracy & Technology, Electronic
`Frontier Foundation, Media Coalition Foundation Inc.,
`National Coalition Against Censorship, Pen America, and
`R Street Institute.
`
`OPINION
`
`R. NELSON, Circuit Judge:
`
`After the events at the U.S. Capitol on January 6, 2021,
`Twitter banned President Donald Trump for life. Soon after
`Twitter announced the ban, the Texas Office of the Attorney
`General (OAG) served Twitter with a Civil Investigative
`Demand (CID) asking it to produce various documents
`relating to its content moderation decisions. Twitter sued
`Ken Paxton, the Attorney General of Texas, in his official
`capacity, arguing that the CID was government retaliation
`for speech protected by the First Amendment. The district
`court dismissed the case as not ripe. We affirm.
`
`I
`
`A
`
`OAG says that it has been investigating Twitter’s
`content-moderation decisions
`in
`response
`to citizen
`complaints since 2018. Twitter executives have said
`publicly that Twitter does not moderate content based on
`political viewpoint. After Twitter banned President Trump
`for life, Paxton tweeted that Twitter (along with Facebook)
`was “closing conservative accounts,” and that it and other
`companies stood “ready/willing to be the left’s Chinese-style
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 5 of 20
`
`TWITTER V. PAXTON
`
`5
`
`thought police.” He vowed that “[a]s AG, I will fight them
`with all I’ve got.”
`
`A few days later OAG served Twitter with a CID,
`requiring it to produce various documents related to its
`content moderation decisions. Paxton says that OAG “does
`not seek to investigate the content-moderation decisions that
`Twitter makes—and could not do so under [Texas’s unfair
`and deceptive trade practices law]—but rather is conducting
`an investigation into whether Twitter truthfully represents its
`moderation policies to Texas consumers.” But Twitter
`paints this rationale as a pretext for Paxton’s unlawful
`retaliation.
`
`B
`
`After some negotiation, rather than respond to the CID
`or wait for OAG to move to enforce it in Texas state court,
`Twitter instead sued Paxton in the Northern District of
`California. It alleged that both the act of sending the CID
`and the entire investigation were unlawful retaliation for its
`protected speech. Claiming under 42 U.S.C. § 1983 that
`Paxton violated its First Amendment rights, Twitter asked
`the district court to enjoin Paxton from enforcing the CID
`and from continuing his investigation, and to declare the
`investigation unconstitutional. In Twitter’s view, its content
`moderation decisions are protected speech because it is a
`publisher, and it has a First Amendment right to choose what
`content to publish. Pointing to Paxton’s public comments,
`Twitter argues that the CID was served in retaliation for its
`protected speech and that it chills Twitter’s exercise of its
`First Amendment rights.
`
`In response, Paxton contested personal jurisdiction,
`venue, ripeness, and whether Twitter had stated a claim. On
`ripeness, he argued that under Reisman v. Caplin, 375 U.S.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 6 of 20
`
`6
`
`TWITTER V. PAXTON
`
`to non-self-
`440 (1964), pre-enforcement challenges
`executing document requests are not ripe. Twitter countered
`that the case was ripe because it had already suffered a real
`First Amendment injury—its speech was already being
`chilled. The district court held that it had personal
`jurisdiction and that venue was proper, and then dismissed
`the case as not ripe, relying on Reisman. It did not reach
`whether Twitter stated a claim.
`
`After the district court dismissed the case, Twitter moved
`for an injunction pending appeal, arguing again that the case
`was ripe. The district court declined to issue one, relying on
`the same reasoning as before. Twitter then appealed that
`order to this Court, and a divided motions panel affirmed.
`Twitter now appeals the district court’s original order
`dismissing the case.
`
`II
`
`The district court’s decision to dismiss a case for lack of
`ripeness is reviewed de novo. Wolfson v. Brammer, 616 F.3d
`1045, 1053 (9th Cir. 2010). The district court’s decision
`may be affirmed on any ground supported by the record,
`even if not relied on by the district court. Cassirer v.
`Thyssen-Bornemisza Collection Found., 862 F.3d 951, 974
`(9th Cir. 2017).
`
`III
`
`A
`
`1
`
`Along with standing and mootness, ripeness is one of
`three justiciability requirements. Ripeness “is ‘drawn both
`from Article III limitations on judicial power and from
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 7 of 20
`
`TWITTER V. PAXTON
`
`7
`
`prudential reasons for refusing to exercise jurisdiction.’”
`Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 944 (9th
`Cir. 2021) (citing Nat’l Park Hosp. Ass’n v. Dep’t of
`Interior, 538 U.S. 803, 808 (2003)). The “basic rationale” of
`the ripeness requirement is “to prevent the courts, through
`avoidance of premature adjudication, from entangling
`themselves in abstract disagreements.” Portman v. Cnty. of
`Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993) (citing
`Abbott Lab’ys. v. Gardner, 387 U.S. 136, 148 (1967)).
`
`We have separated out the constitutional and prudential
`components of ripeness. “[T]he constitutional component of
`ripeness is synonymous with the injury-in-fact prong of the
`standing inquiry.” Cal. Pro-Life Council, Inc. v. Getman,
`328 F.3d 1088, 1094 n.2 (9th Cir. 2003) (citing Thomas v.
`Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1138 (9th
`Cir. 2000) (en banc)). The question is thus “whether the
`issues presented are definite and concrete, not hypothetical
`or abstract.” Id. (cleaned up).
`
`The prudential part of ripeness, on the other hand,
`requires us to “evaluate both the fitness of the issues for
`judicial decision and the hardship to the parties of
`withholding court consideration.”
` Ass’n of Irritated
`Residents, 10 F.4th at 944 (citing Abbott Lab’ys, 387 U.S.
`at 149).1 “A claim is fit for decision if the issues raised are
`primarily legal, do not require further factual development,
`
`1 The Supreme Court has questioned the continued validity of the
`prudential ripeness doctrine because it “is in some tension with [the
`Court’s] recent reaffirmation of the principle that ‘a federal court’s
`obligation to hear and decide’ cases within its jurisdiction ‘is virtually
`unflagging.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167
`(2014) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc.,
`572 U.S. 118, 126 (2014)). But the parties do not ask us to revisit our
`precedents, and we continue to be bound by them.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 8 of 20
`
`8
`
`TWITTER V. PAXTON
`
`and the challenged action is final.” Skyline Wesleyan
`Church v. Cal. Dep’t of Managed Health Care, 968 F.3d
`738, 752 (9th Cir. 2020) (cleaned up). On the hardship
`prong, we consider whether the action “requires an
`immediate and significant change in the plaintiffs’ conduct
`of
`their affairs with serious penalties attached
`to
`noncompliance.” Stormans, Inc. v. Selecky, 586 F.3d 1109,
`1126 (9th Cir. 2009) (cleaned up). As part of this prong, we
`have also considered the hardship to the government from
`moving forward with the case. See Thomas, 220 F.3d
`at 1142 (“the State and the City would suffer hardship were
`we to adjudicate this case now.”). Even if there is some
`hardship to the plaintiff from withholding consideration, that
`hardship may still be “insufficient to overcome the
`uncertainty of the legal issue presented in the case in its
`current posture” and thus “fail[] . . . [to] outweigh[] our and
`the [government’s] interest in delaying review.” Colwell v.
`Dep’t of Health & Hum. Servs., 558 F.3d 1112, 1129 (9th
`Cir. 2009) (citation omitted).
`
`We have noted that we “appl[y] the requirements of
`ripeness and standing less stringently in the context of First
`Amendment claims.” Wolfson, 616 F.3d at 1058 (citing
`Getman, 328 F.3d at 1094). But that observation relied on a
`standing case, Getman, and thus relates mainly to the
`constitutional ripeness of a pre-enforcement suit, not to
`prudential ripeness. And we have also held that “[t]he
`prudential considerations of ripeness are amplified where
`constitutional issues are concerned.” Scott v. Pasadena
`Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002) (citing
`United Pub. Workers v. Mitchell, 330 U.S. 75, 90–91
`(1947)).
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 9 of 20
`
`TWITTER V. PAXTON
`
`9
`
`2
`
`Personal jurisdiction and constitutional ripeness are
`jurisdictional prerequisites. Ruhrgas AG v. Marathon Oil
`Co., 526 U.S. 574, 584 (1999); In re Coleman, 560 F.3d
`1000, 1005 (9th Cir. 2009). We “generally may not rule on
`the merits of a case without first determining that [we] ha[ve]
`jurisdiction.” Sinochem Int’l Co. v. Malaysia Int’l Shipping
`Corp., 549 U.S. 422, 430–31 (2007) (citing Steel Co. v.
`Citizens for a Better Env’t, 523 U.S. 83, 93–102 (1998)).
`But “there is no mandatory sequencing of nonmerits issues,”
`and we thus “ha[ve] leeway ‘to choose among threshold
`grounds for denying audience to a case on the merits.’” Id.
`(citing Ruhrgas, 526 U.S. at 584–85). The rationale for this
`rule is that “jurisdiction is vital only if the court proposes to
`issue a judgment on the merits.” Snoqualmie Indian Tribe v.
`Washington, 8 F.4th 853, 861 (9th Cir. 2021) (cleaned up).
`Thus when jurisdictional issues would be “difficult to
`determine,” we may instead dismiss a case on a non-merits
`threshold ground, if doing so is “the less burdensome
`course.” Id. (quoting Sinochem, 549 U.S. at 436).
`
`B
`
`Prudential ripeness is a non-merits threshold issue, and
`personal jurisdiction and constitutional ripeness would be
`difficult to determine here. We thus instead dismiss the case
`on prudential ripeness, the “less burdensome course.” See
`id.
`
`This case is not prudentially ripe. The issues are not yet
`fit for judicial decision because OAG has not yet made an
`allegation against Twitter, because the facts are not yet
`developed, and because Twitter need not comply with the
`CID, can challenge it if it is enforced, and could have
`challenged the CID in Texas state court, Tex. Bus. & Com.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 10 of 20
`
`10
`
`TWITTER V. PAXTON
`
`Code § 17.61(g). While Twitter could suffer hardship from
`withholding consideration, adjudicating this case now would
`require determining whether Twitter has violated Texas’s
`unfair trade practices law before OAG has a chance to
`complete its investigation. Any hardship to Twitter from the
`alleged chill of its First Amendment rights is “insufficient to
`overcome the uncertainty of the legal issue presented in the
`case in its current posture.” Colwell, 558 F.3d at 1129.
`
`1
`
`On the first prong, whether the issues are fit for judicial
`decision, Twitter argues that its claim “is based entirely on
`acts that have already occurred,” and thus that prudential
`ripeness is satisfied. We disagree. As Twitter argues, the
`case turns on whether Paxton caused OAG to issue the CID
`with a retaliatory motive. But it turns on other questions too,
`and it’s as to those other questions that the issues are not yet
`fit for judicial decision.
`
`If this lawsuit is allowed to go forward, it will force OAG
`to litigate its entire case on deceptive trade practices in
`California without even being able to investigate it and
`figure out if it wants to pursue it or not. Here’s how: The
`elements of a First Amendment retaliation claim are (1) that
`the plaintiff was “engaged in a constitutionally protected
`activity,” (2) that the “Defendants’ actions would chill a
`person of ordinary firmness from continuing to engage in the
`protected activity,” and (3) that “the protected activity was a
`substantial or motivating factor in Defendants’ conduct.”
`Sampson v. Cnty. of Los Angeles, 974 F.3d 1012, 1019 (9th
`Cir. 2020) (citation omitted). Even if content moderation is
`protected speech, making misrepresentations about content
`moderation policies is not. See Va. State Bd. of Pharmacy v.
`Va. Citizens Consumer Council, Inc., 425 U.S. 748, 772
`(1976) (misleading commercial speech is not protected). If
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 11 of 20
`
`TWITTER V. PAXTON
`
`11
`
`Twitter’s statements are protected commercial speech, then
`OAG’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. Sampson, 974 F.3d at 1019 (citation
`omitted). 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.
`
`In this way, addressing Twitter’s claim would require the
`district court to determine whether Twitter had made
`misrepresentations. But misrepresentations are exactly what
`are prohibited by Texas’s unfair and deceptive trade
`practices law; this is the very thing that Paxton claims OAG
`is trying to investigate. And at this stage, OAG hasn’t even
`alleged that there is a violation; OAG is just trying to look
`into
`it.
` Whether Twitter’s
`statements were
`misrepresentations is not solely a legal issue because it
`depends on “further factual amplification.” United States v.
`Lazarenko, 476 F.3d 642, 652 (9th Cir. 2007). Allowing this
`case to go forward would force OAG to litigate the merits in
`a defensive posture in a different jurisdiction, without being
`able to investigate its own potential claims.
`
`Indeed, allowing this case to go forward would limit
`many legitimate investigations, because they could chill
`First Amendment rights.
` Consider a civil antitrust
`investigation. Are the business executives legitimate
`targets? Or are their First Amendment rights to speak freely
`among themselves being chilled? If this case were ripe, then
`the target of an antitrust investigation could sue the
`government and force it to try its entire case before it even
`decides whether it wants to allege a violation.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 12 of 20
`
`12
`
`TWITTER V. PAXTON
`
`In addressing a related but separate issue, the Supreme
`Court avoided this very outcome, observing that it “would
`require federal courts to determine the constitutionality of
`state laws in hypothetical situations where it is not even clear
`the State itself would consider its law applicable.” Morales
`v. Trans World Airlines, Inc., 504 U.S. 374, 382 (1992).
`Finding this case ripe would require federal courts in
`California to determine the constitutionality of Texas’s
`unfair trade practices law in a hypothetical situation, before
`Texas has even decided whether its law applies.
`
`2
`
`Withholding consideration could lead to some hardship
`for Twitter: the alleged chill of its First Amendment rights.
`But on the hardship prong, we also consider “whether the
`[state] action requires immediate compliance with its terms.”
`Skyline, 968 F.3d at 752. Twitter has alleged a chill on its
`First Amendment rights. But because Twitter need not
`comply with the CID, OAG has taken no action that requires
`immediate compliance.
`
`Moreover, any hardship to Twitter is minimized because
`Twitter may still raise its First Amendment claims before
`OAG brings an unfair trade practices suit. If OAG moves to
`enforce the CID, Twitter can raise its First Amendment
`claims at that time, before any duty to comply applies, and
`without facing any charges under the underlying Texas
`unfair business practices statute. Twitter also could have
`challenged the CID in Texas state court. Tex. Bus. & Com.
`Code § 17.61(g).
`
`And we can also consider the hardship to OAG. See
`Thomas, 220 F.3d at 1141–42 (assessing hardship to the
`government from finding case ripe). Allowing this case to
`go forward would force OAG to litigate its case in federal
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 13 of 20
`
`TWITTER V. PAXTON
`
`13
`
`court in California, without being able to first investigate its
`own potential claims. That would undermine Texas’s state
`sovereignty. States can investigate whether businesses make
`misrepresentations. Finding this case ripe would make some
`of those investigations impossible.
`
`Thus any “hardship [to Twitter] is insufficient to
`overcome the uncertainty of the legal issue presented in the
`case in its current posture,” and “fail[s] . . . [to] outweigh[]
`our and the [Attorney General’s] interest in delaying
`review.” Colwell, 558 F.3d at 1129 (citation omitted).
`
`C
`
`1
`
`Twitter argues that OAG’s investigation is illegitimate
`because matters of “editorial judgment” can never be
`investigated. In doing so, it analogizes its statements about
`content moderation (that it moderates content without
`considering viewpoint) to the slogans like “all the news
`that’s fit to print” and “fair and balanced.” Twitter and amici
`also rely on cases highlighting the dangers in “government
`editorial oversight.” See Miami Herald Publ’g Co. v.
`Tornillo, 418 U.S. 241, 258 (1974); Bullfrog Films, Inc. v.
`Wick, 847 F.2d 502, 510 (9th Cir. 1988).
`
`We reject these arguments. First, Bullfrog Films and
`Miami Herald addressed government regulations or statutes
`which themselves required balance. 847 F.2d at 505 (federal
`regulations); 418 U.S. at 244 (state statute). Here, by
`contrast, Twitter has made statements about balance, and so
`the danger from Bullfrog Films and Miami Herald is absent.
`Twitter’s statements can be investigated as misleading just
`like the statements of any other business.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 14 of 20
`
`14
`
`TWITTER V. PAXTON
`
`Second, Twitter’s analogy to “all the news that’s fit to
`print” is a puffery argument, the essence of which is that no
`one would understand
`its statements about content
`moderation to be literally true. We disagree. No one
`believes that the New York Times literally prints “all the
`news that’s fit to print,” but a reasonable person could think
`that Twitter’s statements about content moderation were
`true. Cf. Knievel v. ESPN, 393 F.3d 1068, 1073–74 (9th Cir.
`2005) (deciding whether allegedly defamatory statement
`could be believed by a reasonable person).
`
`2
`
`Twitter also relies on a series of First Amendment cases
`to argue that “even informal threats of legal sanction, when
`used as a means to punish or restrict a person’s exercise of
`First Amendment rights, create an
`immediate First
`Amendment injury that courts may remedy.” See, e.g.,
`Bantam Books v. Sullivan, 372 U.S. 58 (1963). Paxton
`responds that those cases are “generalized First Amendment
`principles” that don’t apply here and largely don’t discuss
`ripeness at all. It’s true that some of these cases don’t discuss
`ripeness. And regardless, a closer look at them shows that
`they don’t support finding ripeness here. We first discuss
`Twitter’s foundational case, Bantam Books, and then address
`our precedents.
`
`a
`
`Bantam Books was different from this case in three ways:
`it dealt with obscenity, it addressed a state regulatory scheme
`that “provide[d] no safeguards whatever against the
`suppression of nonobscene, and therefore constitutionally
`protected, matter,” 372 U.S. at 70, and it did not address
`ripeness.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 15 of 20
`
`TWITTER V. PAXTON
`
`15
`
`The threat to speech in Bantam Books came from the
`“Rhode Island Commission to Encourage Morality in
`Youth,” a state regulatory body whose mission was to
`“educate the public concerning any book, picture, pamphlet,
`ballad, printed paper or other thing containing obscene,
`indecent or impure language, or manifestly tending to the
`corruption of the youth.” Id. at 59. The Commission
`contacted distributors of these books, told them that the
`books were objectionable, thanked them in advance for their
`cooperation,
`reminded
`them
`that
`the Commission
`recommended “purveyors of obscenity” for prosecution, and
`told them that copies had been forwarded to local police
`departments. Id. at 61–63. Several publishers sued, and the
`Supreme Court held that the Commission’s acts violated the
`First Amendment.
`
`The Court’s holding was rooted in the complexity of its
`obscenity jurisprudence. It first pointed out that although
`obscenity is not protected speech, state regulation of
`obscenity also is subject to “an important qualification,”
`which is that the test for obscenity is complex and requires
`safeguards in its application. Id. at 65 (citing Roth v. United
`States, 354 U.S. 476, 488 (1957)). The problem with the
`Commission was that it had no safeguards at all: There was
`no judicial review of the notices, no notice and hearing, and
`it levied vague and uninformative allegations. Id. at 70–71.
`It was these faults that led the Supreme Court to say that
`“[t]he procedures of the Commission are radically deficient”
`and to call them a “system of informal censorship.” Id. at 71.
`
`Bantam Books differs from this case. First, unlike
`obscenity, the test for misleading or untruthful commercial
`speech contains no analogous complexities or qualifications.
`See Va. State Bd. of Pharmacy, 425 U.S. at 772.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 16 of 20
`
`16
`
`TWITTER V. PAXTON
`
`Second, unlike the Commission, OAG has not alleged
`that the law has been broken; it has started an investigation
`and requested documents. Even a statement like “I’ll fight
`them with all I’ve got” is not an allegation that Texas’s law
`has been violated.
`
`Third, unlike the Commission’s, OAG’s actions come
`with procedural safeguards: If OAG moves to enforce the
`CID, Twitter can raise its First Amendment defense then,
`before there are any underlying charges. Twitter also could
`have challenged the CID in Texas state court. Tex. Bus. &
`Com. Code § 17.61(g). In Bantam Books, there were no
`such opportunities.
`
`Ultimately, in Bantam Books, the Supreme Court
`“look[ed] through forms to the substance” and found that the
`Commission was just a “system of informal censorship.” Id.
`at 67, 71. OAG’s investigation is not a system of informal
`censorship. Bantam Books does not support finding ripeness
`here.
`
`b
`
`Along with Bantam Books, Twitter relies on several of
`our cases from the last few decades. Some of these cases
`don’t address ripeness at all, and others involve facts that are
`very different from this case.
`
`Twitter cites White v. Lee to argue that “retaliatory
`investigations can inflict First Amendment injuries by
`chilling speech.” 227 F.3d 1214, 1228 (9th Cir. 2000). And
`it’s true that White held that a retaliatory investigation
`violated the targets’ First Amendment rights. 227 F.3d
`at 1228. But the case doesn’t address ripeness at all. And
`even more to the point, in White, the entire investigation had
`already taken place: The government investigated for several
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 17 of 20
`
`TWITTER V. PAXTON
`
`17
`
`months and “ultimately concluded that no violation had
`occurred and that the [plaintiffs] had engaged solely in
`activity protected by the First Amendment.” Id. at 1220.
`Only at that point did the plaintiffs file a § 1983 suit. White
`thus says little about this case, in which the investigation is
`still ongoing.
`
`There is another difference: In White, the plaintiffs
`would have had no opportunity to challenge any aspect of
`the investigation until formal charges were brought, at which
`point they could have faced a large fine. Id. at 1222. But
`here, as the district court pointed out, “Twitter faces no such
`consequence” because it can raise its First Amendment
`defense if Paxton moves to enforce the CID.2
`
`Wolfson also doesn’t apply. 616 F.3d at 1058. One
`claim in Wolfson was prudentially ripe because it was
`“primarily legal and d[id] not require substantial further
`factual development.” Id. at 1060. Here, by contrast,
`Twitter’s claim involves determining whether it has
`misrepresented its content moderation policies. That
`question requires more factual development;
`indeed,
`developing those facts is the very subject of OAG’s
`investigation. In Wolfson, there was no investigation.3
`
`2 As the district court pointed out, Lacey v. Maricopa County,
`693 F.3d 896 (9th Cir. 2012), and Sampson, 974 F.3d at 1019, do not
`apply for the same reason. In Lacey, the prosecuting attorney had
`authorized the plaintiffs’ arrest, 693 F.3d at 922–23, and in Sampson, the
`plaintiff was threatened with a loss of custody of a child, 974 F.3d 1020–
`21. Because Twitter can raise its First Amendment challenge in an action
`by OAG to enforce the CID, it faces no such consequences.
`
`3 Ariz. Right to Life, 320 F.3d at 1002, similarly does not apply for
`this reason. In that case, there was no investigation, and the plaintiffs
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 18 of 20
`
`18
`
`TWITTER V. PAXTON
`
`Finally, Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009),
`doesn’t apply because it arose in a very different context.
`Brodheim addressed neither standing nor ripeness. And it
`concerned a state prison official’s alleged retaliatory threat
`against a state prisoner. Id. The case does not apply because
`its rule was rooted in the disparity in power and control
`between prison officials and inmates, and such a disparity is
`not present here.
`
`In Brodheim, in response to an inmate’s administrative
`complaint, a prison official told the inmate, “I’d also like to
`warn you to be careful what you write, req[u]est on this
`form.” Id. at 1266 (alteration in original). A non-self-
`executing CID that can be challenged when enforced (and
`could have been challenged before enforcement) does not
`create the same threat of further sanctions as this prison
`official’s alleged threat.
`
`3
`
`For his part, Paxton asks us to find this case unripe by
`relying on Reisman, 375 U.S. 440. We decline to do so.
`Reisman doesn’t apply for a simple reason: It’s not about the
`First Amendment and it’s not about ripeness.
`
`In Reisman, the IRS served a married couple’s
`accountants with a document request. 375 U.S. at 443. The
`couple’s lawyer sued, arguing that the accountants might
`comply and that their compliance would violate the attorney-
`client privilege. Id. at 442. He also argued that the request
`was an unreasonable seizure and that it violated his clients’
`
`alleged a desire to engage in conduct likely prohibited. That case also
`only addressed standing, and thus did not address prudential ripeness at
`all.
`
`

`

`Case 3:21-cv-01644-MMC Document 76 Filed 03/02/22 Page 19 of 20
`
`TWITTER V. PAXTON
`
`19
`
`rights against self-incrimination. Id. The Supreme Court
`dismissed the case, but not because it was unripe. Rather,
`the Court dismissed the case for “want of equity.” Id. at 443.
`Because the petitioners could challenge the document
`request “on any appropriate ground,” the Court held that they
`had “an adequate remedy at law” and thus dismissed the
`case. Id. at 443, 449.
`
`This case is different from Reisman because it involves
`the First Amendment, under which a chilling effect on
`speech can itself be the harm. Wolfson, 616 F.3d at 1059
`(citing Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 393
`(1988)). The key to the holding in Reisman was that there
`had not yet been an injury: The Court held that the remedy
`specified by Congress (to challenge the document request)
`“suffer[ed] no constitutional invalidity.” Reisman, 375 U.S.
`at 450. In other words, the injury in Reisman would only
`occur if the document request were satisfied. The Court
`dismissed the case because there was a way for the
`petitioners to avoid any potential injury while following the
`statutory process. That’s not the case here. Twitter has
`alleged that its injury has already occurred; there is no way
`for it to avoid its alleged injury by challenging the document
`request later. (Of course, whether that injury is sufficient for
`standing and constitutional ripeness is a separate issue, and
`one that we decline to address, as discussed above.) Reisman
`also isn’t about ripeness: Indeed,