9th Circuit Denies Twitter’s Request for Rehearing in Trump Case

The 9th Circuit U.S. Court of Appeals denied Twitter’s request for a rehearing in the company’s lawsuit against Texas over a state investigation related to the platform’s suspension of ex-President Donald Trump (see 2205250040 and 2204120056).

Twitter sued Texas Attorney General Ken Paxton (R) in 2021 after the AG opened an investigation following its decision to suspend Trump for life for his actions linked to the Jan. 6 Capitol siege. The company sought a panel rehearing and rehearing en banc after a federal judge in California dismissed the lawsuit, calling it “premature.”

The “issues here are not fit for judicial decision because Twitter’s allegations do not show that” Paxton’s civil investigative demand (CID) chilled the platform’s speech or caused it “other cognizable injury that the requested injunction would redress,” Judge Ryan Nelson wrote in the Wednesday opinion. “The case is thus constitutionally unripe, and the district court’s order dismissing the case is affirmed.” Twitter and Paxton’s office didn’t comment.

A three-judge panel unanimously voted to deny Twitter’s petition for panel rehearing and rehearing en banc after amending an opinion filed March 2. The panel’s March 2 opinion affirmed the district court’s decision. The full court was advised of the petition for rehearing en banc, which was filed March 30, and “no judge requested a vote on whether to rehear the matter en banc,” the court said.

Paxton’s CID sought various documents about Twitter content moderation decisions. The platform sued Texas, saying the CID was government “retaliation” for speech protected by the First Amendment. Twitter isn’t alleging its “speech is being chilled by a statute of general and prospective applicability that may be enforced against it,” the court said: 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.” Twitter’s allegations aren’t enough to “establish constitutional standing and ripeness because Twitter failed to allege any chilling effect on its speech,” the court said.

Twitter argued 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.” Twitter hasn’t faced any penalties for its refusal to comply with the CID, the court said. Furthermore, Paxton’s enforcement isn’t a “rubber stamp,” the court said: The AG has to serve Twitter, and state courts can conduct hearings to decide whether to order enforcement, which can be followed by a Twitter appeal to the Texas Supreme Court. “So to complain about the CID in this posture is to speculate about injuries that have not and may never occur,” the court said.