Case 3:21-cv-01644-MMC Document 78 Filed 12/14/22 Page 1 of 20
`
`
`
`
`
`Plaintiff-Appellant,
`
`TWITTER, INC.,
`
`
`
` v.
`
`
`KEN PAXTON, in his official
`capacity as Attorney General of
`Texas,
`
`
`
`
`
`
`
`No. 21-15869
`
`D.C. No. 3:21-cv-
`01644-MMC
`
`
`ORDER AND
`AMENDED
`OPINION
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
` Defendant-Appellee.
`
`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
`Amended December 14, 2022
`
`Before: Mark J. Bennett, Ryan D. Nelson, and Patrick J.
`Bumatay, Circuit Judges.
`
`Order;
`Opinion by Judge R. Nelson
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff-Appellant,
`
`TWITTER, INC.,
`
`
`
` v.
`
`
`KEN PAXTON, in his official
`capacity as Attorney General of
`Texas,
`
`
`
`
`
`
`
`No. 21-15869
`
`D.C. No. 3:21-cv-
`01644-MMC
`
`
`ORDER AND
`AMENDED
`OPINION
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
` Defendant-Appellee.
`
`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
`Amended December 14, 2022
`
`Before: Mark J. Bennett, Ryan D. Nelson, and Patrick J.
`Bumatay, Circuit Judges.
`
`Order;
`Opinion by Judge R. Nelson
`
`
`
`
`
`
`
`Case 3:21-cv-01644-MMC Document 78 Filed 12/14/22 Page 2 of 20
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`TWITTER, INC. V. PAXTON
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`
`
`SUMMARY*
`
`
`Civil Rights
`The panel amended its opinion filed March 2, 2022;
`denied a petition for panel rehearing; and denied a petition
`for rehearing en banc on behalf of the court in 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 district court dismissed
`the case as not ripe. On March 2, 2022, the panel issued an
`opinion affirming the district court and holding that
`Twitter’s claims were not prudentially
`ripe. On
`reconsideration, the panel in this amended opinion affirmed
`the district court on the grounds that Twitter’s claims were
`not constitutionally ripe.
`
`
`* This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`
`
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`TWITTER, INC. V. PAXTON
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`The panel held that Twitter is not really making a pre-
`enforcement challenge to a speech regulation; Twitter does
`not allege that its speech is being chilled by a statute of
`general and prospective applicability that may be enforced
`against it. Rather, Twitter alleges that OAG targeted it
`specifically with the CID and related investigation. And the
`subject of its challenge is not only some anticipated future
`enforcement action by OAG; Twitter claims OAG has
`already acted against it. The panel therefore concluded that
`a retaliatory framework rather than a pre-enforcement
`challenge inquiry was appropriate to evaluate Twitter’s
`standing.
`The panel held that Twitter’s allegations were not
`enough to establish constitutional standing and ripeness
`because Twitter failed to allege any chilling effect on its
`speech or any other legally cognizable injury that the
`requested injunction would redress. Twitter’s claim that its
`ability to freely make content decisions “was impeded” was
`vague and referred only to a general possibility of
`retaliation. It was not a claim about the chilling effect of the
`specific investigation at hand. And Twitter’s naked
`assertion that its speech has been chilled is a bare legal
`conclusion upon which it cannot rely to assert injury-in-
`fact. Nor did Twitter’s other allegations meet
`the
`concreteness and particularity standards that Article III
`requires. Finally, Twitter had not suffered any Article III
`injury because
`the CID
`is not self-enforcing. Pre-
`enforcement, Twitter never faced any penalties for its refusal
`to comply with the CID. And enforcement is no rubber
`stamp: If OAG seeks to enforce the CID, it must serve the
`recipient with the petition, the state court can conduct
`hearings to determine whether to order enforcement, and the
`recipient may appeal to the Texas Supreme Court.
`
`
`
`
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`TWITTER, INC. V. PAXTON
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`COUNSEL
`
`Peter G. Neiman (argued), Alex W. Miller, and Rishita
`Apsani, Wilmer Cutler Pickering Hale and Dorr LLP, New
`York, New York; Patrick J. Carome, Ari Holtzblatt,
`Anuradha Sivaram, and Susan Pelletier, Wilmer Cutler
`Pickering Hale and Dorr LLP, Washington, D.C.; Mark D.
`Flanagan, Wilmer Cutler Pickering Hale and Dorr LLP; Palo
`Alto, California; for Plaintiff-Appellant.
`
`Lanora C. Pettit (argued), Principal Deputy Solicitor
`General; Ryan D. Walters, Attorney; Benjamin D. Wilson,
`Deputy Solicitor General; Judd E. Stone II, Solicitor
`General; William T. Thompson, Special Litigation Unit
`Deputy Chief; Patrick Sweeten, Special Litigation Unit
`Chief; Brent Webster, First Assistant Attorney General; Ken
`Paxton, Attorney General of Texas; Office of the Texas
`Attorney General, Austin, Texas; Michael K. Johnson,
`Lewis Brisbois Bisgaard & Smith LLP, Walnut Creek,
`California; for Defendant-Appellee.
`
`KatieLynn B. Townsend, Bruce D. Brown, Gabe Rottman,
`Grayson Clary, Gillian Vernick, and Mailyn Fidler,
`Reporters Committee for Freedom of the Press, Washington,
`D.C., for Amici Curiae The Reporters Committee for
`Freedom of the Press and Media Law Resource Center Inc.
`
`Caitlin Vogus, Samir Jain, and Emma Llanso, 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.
`
`
`
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`TWITTER, INC. V. PAXTON
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`Ilana H. Eisenstein, Whitney Cloud, and Ben C. Fabens-
`Lassen, DLA Piper LLP, Philadelphia, Pennsylvania; Peter
`Karanjia, DLA Piper LLP, Washington, D.C.; for Amici
`Curiae NetChoice LLC, Computer & Communications
`Industry Association, Chamber of Progress, and TechNet.
`
`
`
`ORDER
`
`The opinion filed March 2, 2022, and appearing at 26
`F.4th 1119, is amended by the opinion filed concurrently
`with this order.
`The full court has been advised of the petition for
`rehearing en banc, filed March 30, 2022, and no judge
`requested a vote on whether to rehear the matter en banc.
`Fed. R. App. P. 35. With these amendments, the panel
`unanimously votes to DENY the petition for panel rehearing
`and rehearing en banc.
`
`
`
`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
`
`
`
`
`
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`TWITTER, INC. V. PAXTON
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`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
`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
`
`
`
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`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 pre-enforcement challenges to non-
`self-executing document requests are not ripe. See Reisman
`v. Caplin, 375 U.S. 440 (1964). Twitter countered that the
`case was ripe because it had suffered an injury through
`chilled speech. 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. A divided motions panel
`affirmed. Twitter now appeals the district court’s original
`order dismissing the case. On March 2, 2022, we issued an
`opinion affirming the district court and holding that
`Twitter’s claims were not prudentially
`ripe.
` On
`reconsideration, we affirm the district court because
`Twitter’s claims are not constitutionally ripe.
`
`
`
`
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`TWITTER, INC. V. PAXTON
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`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
`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
`prudential reasons for refusing to exercise jurisdiction.”
`Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 944 (9th
`Cir. 2021) (internal quotation marks omitted) (quoting 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) (quoting 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)). Whether framed as an issue of
`standing or ripeness, an injury must involve “an invasion of
`
`
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`a legally protected interest that is (a) concrete and
`particularized[,] and (b) actual or imminent, not conjectural
`or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
`560 (1992) (internal citations and quotations omitted).
`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). This does not mean, however, that any plaintiff may
`bring a First Amendment claim “by nakedly asserting that
`his or her speech was chilled . . . .” Getman, 328 F.3d at
`1095; see Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir.
`2010) (“Mere allegations of a subjective chill are not an
`adequate substitute for a claim of specific present objective
`harm or a threat of specific future harm.” (cleaned up)).
`The First Amendment usually prohibits the government
`from enacting laws that regulate protected speech, and it
`“prohibits government officials from subjecting individuals
`to ‘retaliatory actions’ after the fact for having engaged in
`protected speech. Houston Cmty. Coll. Sys. v. Wilson, 142
`S. Ct. 1253, 1259 (2022) (quoting Nieves v. Bartlett, 139
`S. Ct. 1715, 1722 (2019)). Pre-enforcement challenges to
`speech regulations and retaliation claims differ on the merits,
`of course, but they also carry different requirements for
`standing.
`In evaluating standing in a pre-enforcement challenge to
`a speech regulation, our “inquiry focuses on (1) whether the
`plaintiffs have articulated a concrete plan to violate the law
`in question, (2) whether the prosecuting authorities have
`communicated a specific warning or threat to initiate
`proceedings, and (3) the history of past prosecution or
`enforcement under the challenged statute.” Alaska Right to
`Life Pol. Action Comm. v. Feldman, 504 F.3d 840, 849 (9th
`
`
`
`
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`Cir. 2007) (quoting Getman, 328 F.3d at 1094). “The
`potential plaintiff must have an ‘actual or well-founded fear
`that the law will be enforced against’” it. Id. at 851 (quoting
`Getman, 328 F.3d at 1095). Given that pre-enforcement
`claims necessarily occur before enforcement actions have
`begun, the standing factors for pre-enforcement claims are
`substantively similar to the ripeness factors and identical
`concerns motivate both analyses. See Getman, 328 F.3d at
`1093–94.
`In a typical First Amendment retaliation case, the
`plaintiff challenges a state action that has been taken against
`the plaintiff. Determining standing in this context does not
`require the inquiry that we undertake in the pre-enforcement
`context, in which we must “determin[e] when the threatened
`enforcement of a law creates an Article III injury.” Susan B.
`Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
`Accordingly, our inquiry in the retaliation context focuses
`directly on the three elements that form the “irreducible
`constitutional minimum” of Article III standing. Lujan, 504
`U.S. at 560. To establish standing in a First Amendment
`retaliation case, a plaintiff must show “(1) an injury in fact,
`(2) a sufficient causal connection between the injury and the
`conduct complained of, and (3) a likelihood that the injury
`will be redressed by a favorable decision.” Driehaus, 573
`U.S. at 157–58 (2014) (cleaned up). In the First Amendment
`context, “the injury-in-fact element is commonly satisfied by
`a sufficient showing of self-censorship, which occurs when
`a claimant is chilled from exercising his right to free
`expression.” Edgar v. Haines, 2 F.4th 298, 310 (4th Cir.
`2021), cert. denied, 142 S. Ct. 2737 (2022) (internal
`quotations and citations omitted).
`
`
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`B
`OAG contends that this case is a pre-enforcement case
`because the CID is not self-enforcing. But Twitter is not
`really making a pre-enforcement challenge. Twitter does
`not allege that its speech is being chilled by a statute of
`general and prospective applicability that may be enforced
`against it. Rather, Twitter alleges that OAG targeted it
`specifically with the CID and related investigation. And
`the subject of its challenge is not only some anticipated
`future enforcement action by OAG; Twitter claims OAG
`has already acted against it. We therefore conclude that the
`retaliatory framework is the appropriate one under which to
`evaluate Twitter’s standing. And under that framework,
`Twitter’s allegations are not enough to establish
`constitutional standing and ripeness because Twitter fails to
`allege any chilling effect on its speech or any other legally
`cognizable injury.
`First, Twitter’s complaint, taken as true, does not show
`any chilling effect on its speech. Twitter alleges that its
`“ability to freely make its own decisions as to what content
`to include on its platform is impeded by the persistent threat
`that government actors who disagree with those decisions
`may wield their official authority to retaliate, such as by
`issuing a burdensome CID or commencing an intrusive
`investigation,” that “the CID and associated investigation
`chill Twitter’s speech,” and that “[i]t is already being forced
`to weigh the consequence of a burdensome investigation
`every time it contemplates taking action based on a rules
`violation by a user that AG Paxton favors.” In a declaration
`appended to Twitter’s motion for a temporary restraining
`order, a Twitter employee declared that he believes the
`knowledge
`that content moderation discussions and
`decisions are subject to disclosure under the CID will result
`
`
`
`
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`TWITTER, INC. V. PAXTON
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`in “significant diminishment of the willingness of Twitter
`employees to speak candidly and freely in internal content
`moderation decisions.” And that, in turn, “would likely
`compromise and inhibit” Twitter’s ability to make content
`moderation decisions.”
`Both the allegations and declaration do not quite show
`chilled speech. See Barnum Timber Co. v. EPA, 633 F.3d
`894, 898 (9th Cir. 2011) (considering declarations filed with
`the complaint for standing analysis). Even though “[s]peech
`can be chilled even when not completely silenced,” Rhodes
`v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005), Twitter’s
`claim that its ability to freely make content decisions “is
`impeded” is vague and refers only to a general possibility of
`retaliation. It is not a claim about the chilling effect of the
`specific investigation at hand. And Twitter’s naked
`assertion that its speech has been chilled is “a bare legal
`conclusion” upon which it cannot rely to assert injury-in-
`fact. Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir.
`2011). “[T]he plaintiff must ‘clearly . . . allege facts
`demonstrating’ each element” of standing. Spokeo, Inc. v.
`Robins, 578 U.S. 330, 338 (2016) (quoting Warth v. Seldin,
`422 U.S. 490, 518 (1975)).
`Nor do Twitter’s other allegations meet the concreteness
`and particularity standards
`that Article III requires.
`Twitter’s claim that it is forced to “weigh the consequence”
`of investigations when it makes moderation decisions is too
`indefinite; Twitter has not alleged how, exactly, this
`“weighing” affects its speech. And the Twitter employee’s
`declaration stating his beliefs regarding the potential effects
`of the CID is highly speculative. He does not declare that
`the OAG’s CID has actually chilled employees’ speech or
`Twitter’s content moderation decisions; the employee only
`claims that it would “if th[e] CID and investigation were
`
`
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`allowed to proceed.” A concrete injury need not be tangible
`but “must actually exist.” Spokeo, 578 U.S. at 340.
`Twitter does not allege that it has suffered any other
`legally cognizable harm, and Twitter does not seek damages.
`It claims that the CID forced it to incur financial costs and
`divert employee time, and it produced roughly 1,800 pages
`of documents. Still, the enforceability of the CID remains
`an open question, so Twitter incurred these costs voluntarily
`in responding to the CID. And all the documents Twitter
`produced to OAG appear to have already been available to
`the public. In any event, because Twitter does not seek
`damages, any past financial harm is not redressable by the
`injunctive relief
`it seeks and
`therefore provides no
`independent basis for jurisdiction.1
`Finally, Twitter has not suffered an Article III injury
`because the CID is not self-enforcing. See Tex. Bus. & Com.
`Code § 17.62(b), (c) (requiring OAG to petition for an order
`of the court to enforce the CID if the recipient fails to meet
`the demand). Pre-enforcement, Twitter never faced any
`penalties for its refusal to comply with the CID. Id. And
`enforcement is no rubber stamp: If OAG seeks to enforce the
`CID, it must serve the recipient with the petition, the state
`court can conduct hearings to determine whether to order
`enforcement, and the recipient may appeal to the Texas
`Supreme Court. Id. So to complain about the CID in this
`posture is to speculate about injuries that have not and may
`
`1 Twitter conclusorily and vaguely asserts that it will continue to incur
`financial costs responding to the CID, but its own pleadings and
`declaration indicate that Twitter completed its voluntary response to the
`CID, and in the absence of any enforcement action by OAG, Twitter’s
`future costs are too speculative to establish injury-in-fact redressable by
`the requested injunctive relief.
`
`
`
`
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`never occur. And to the extent Twitter argues that any
`actions it has taken in response to the CID create an Article
`III injury, those injuries are self-inflicted because the actions
`were voluntary. See Clapper v. Amnesty Int’l USA, 568 U.S.
`398, 418 (2013).
`
`C
`1
`Twitter 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. Even so, 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 involved allegations that the law had been broken, it
`addressed a state regulatory scheme that “provide[d] no
`safeguards whatever against
`the suppression of . . .
`constitutionally protected[] matter,” 372 U.S. at 70, and it
`did not address ripeness.
`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,
`
`
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`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 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. Second, 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,
`
`
`
`
`
`Case 3:21-cv-01644-MMC Document 78 Filed 12/14/22 Page 16 of 20
`
`16
`
`TWITTER, INC. V. PAXTON
`
`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). It’s
`true that White held that a retaliatory investigation violated
`the targets’ First Amendment rights. Id. But the case
`doesn’t address ripeness at all. And even more to the point,
`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
`
`
`2 As the district court pointed out, Lacey v. Maricopa County, 693 F.3d
`896 (9th Cir. 2012), and Sampson v. County of Los Angeles ex rel. Los
`Angeles County Department of Children & Family Services, 974 F.3d at
`
`
`
`Case 3:21-cv-01644-MMC Document 78 Filed 12/14/22 Page 17 of 20
`
`
`
`TWITTER, INC. V. PAXTON
`
`
`
`17
`
`Wolfson also doesn’t apply. Wolfson also did not involve
`an investigation. See 616 F.3d at 1058. Arizona Right to
`Life Political Action Committee v. Bayless, 320 F.3d 1002
`(9th Cir. 2003), similarly does not apply for this reason. In
`that case, there was no investigation, and the plaintiffs
`alleged a desire to engage in conduct likely prohibited. See
`id. at 1006.
`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. at 1265–66. 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.
`
`
`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 the 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.
`
`
`
`
`
`Case 3:21-cv-01644-MMC Document 78 Filed 12/14/22 Page 18 of 20
`
`18
`
`TWITTER, INC. V. PAXTON
`
`2
`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 two simple reasons: It’s not about
`the First Amendment nor 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’
`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.3 See Wolfson, 616 F.3d at
`1059 (citing Virginia v. Am. Booksellers Ass’n, 484 U.S.
`
`3 But see Google, Inc. v. Hood, 822 F.3d 212, 225 (5th Cir. 2016)
`(applying Reisman to Google’s pre-enforcement challenge under the
`Communications Decency Act, the Fourth Amendment, and the First
`Amendment to a non-self-executing CID in holding the challenge was
`not ripe). We do not find the Fifth Circuit’s decision in Google
`persuasive for the same reason we do not apply Reisman here. Although
`the First Amendment was at issue in Google, the court did not recognize
`that Google could have suffered injury in the form of objectively
`reasonable chilling of its speech or another legally cognizable harm from
`the CID even prior to the CID’s enforcement.
`
`
`
`Case 3:21-cv-01644-MMC Document 78 Filed 12/14/22 Page 19 of 20
`
`
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`TWITTER, INC. V. PAXTON
`
`
`
`19
`
`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—however
`insufficiently—that its constitutional injury has already
`occurred; there is no way for it to avoid that alleged injury
`by challenging the document request later. Reisman also
`isn’t about ripeness: Indeed, it doesn’t mention ripeness at
`all.4
`
`D
`Because our analysis is rooted in ripeness and not
`equitable principles,
`it
`is not affected by Twitter’s
`declaratory judgment claim. It’s true that “[d]eclaratory
`relief may be appropriate even when injunctive relief is not.”
`Olagues
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