Twitter, Inc. v. Ken Paxton ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TWITTER, INC., No. 21-15869
Plaintiff-Appellant,
D.C. No.
v. 3:21-cv-01644-
MMC
KEN PAXTON, in his official capacity
as Attorney General of Texas,
Defendant-Appellee. 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
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.
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.
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
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.
6 TWITTER V. PAXTON
440 (1964), pre-enforcement challenges to non-self-
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
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.
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)).
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.
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
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.
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
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.
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.
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.
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
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
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.
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, it doesn’t mention ripeness
at all. 4
4
Zimmer v. Connett, 640 F.2d 208 (9th Cir. 1981), does not apply
for the same reason. That case also concerned a document request from
the IRS to a taxpayer, and we dismissed the case “[b]ecause the taxpayer
had an adequate remedy at law.” Id. at 209.
20 TWITTER V. PAXTON
D
Because our analysis is rooted in prudential 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 v. Russoniello, 770 F.2d 791, 803 (9th Cir. 1985).
But unlike the analysis of Reisman, our ripeness analysis
does not rely on the lack of an adequate remedy at law, so it
applies equally to Twitter’s claims for equitable and
declaratory relief.
IV
The issues here are not fit for judicial decision because
the facts require further development, and the relative
hardships to the parties support delaying review. The case
thus is not prudentially ripe, and the district court’s order
dismissing the case is AFFIRMED.