Twitter, Inc. v. Paxton
Filing
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ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION PENDING APPEAL. Signed by Judge Maxine M. Chesney on June 8, 2021. (mmclc1S, COURT STAFF) (Filed on 6/8/2021)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TWITTER, INC.,
Plaintiff,
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v.
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KEN PAXTON,
ORDER DENYING PLAINTIFF'S
MOTION FOR PRELIMINARY
INJUNCTION PENDING APPEAL
Defendant.
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United States District Court
Northern District of California
Case No. 21-cv-01644-MMC
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Before the Court is plaintiff Twitter, Inc.'s ("Twitter") Motion, filed May 27, 2021,
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"for Injunction Pending Appeal." On June 2, 2021, defendant Ken Paxton, in his official
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capacity as Attorney General of Texas ("Attorney General"), filed opposition. Having
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read and considered the parties' respective written submissions, the Court rules as
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follows.1
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On March 8, 2021, Twitter filed the above-titled action, in which it alleged that, on
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January 13, 2021, the Attorney General issued a "Civil Investigative Demand" ("CID")
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(see Compl. ¶ 3, Ex. 1), by which the Attorney General seeks from Twitter specified
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documents described as "relevant to the subject matter of an investigation of possible
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violations of sections 17.46(a) and (b) of the DTPA [Texas Deceptive Trade Practices –
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Consumer Protection Act] in Twitter's representations and practices regarding what can
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be posted on its platform" (see Compl. Ex. 1). Based thereon, Twitter asserted a single
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Claim for Relief, brought pursuant to 42 U.S.C. § 1983 and titled "The First Amendment
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By order filed May 28, 2021, the Court approved the parties' stipulation to take
the matter under submission as of the date on which the opposition was filed.
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Bars the Attorney General's Retaliatory Investigation and Civil Investigative Demand." As
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relief, Twitter sought, in addition to declaratory relief, an injunction prohibiting the
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Attorney General from "initiating any action to enforce the CID or to further the unlawful
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investigation into Twitter's internal editorial policies and practices." (See Compl. ¶¶ 69-
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70.)
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By Order filed May 11, 2021 ("May 11 Order"), the Court granted the Attorney
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General's motion to dismiss, finding the above-titled action was premature. That same
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date, judgment was entered, and, on May 14, 2021, Twitter filed a notice of appeal.
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By the instant motion, Twitter seeks an order granting a preliminary injunction
pending appeal. Specifically, Twitter seeks an order enjoining the Attorney General from
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United States District Court
Northern District of California
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"[i]nitiating any action to enforce the CID or to continue the investigation announced on
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January 13, 2021[,] into Twitter's content-moderation policies and practices." (See Pl.'s
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Proposed Order at 3:2-6.) In support thereof, Twitter relies on Rule 62(d) of the Federal
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Rules of Civil Procedure, which Rule provides that "[w]hile an appeal is pending from an
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interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves,
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or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or
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grant an injunction on terms for bond or other terms that secure the opposing party's
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rights." See Fed. R. Civ. P. 62(d).2
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"In evaluating a motion for an injunction pending appeal, [courts] consider whether
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the moving party has demonstrated [1] that they are likely to succeed on the merits,
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[2] that they are likely to suffer irreparable harm in the absence of preliminary relief,
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[3] that the balance of equities tips in their favor, and [4] that an injunction is in the public
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interest." South Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 939 (9th Cir.
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2020). Alternatively, with respect to the first factor, a plaintiff may show "serious
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questions going to the merits," provided the plaintiff also shows "the balance of hardships
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Twitter asserts, and the Court agrees, that the May 11 Order "effectively denied
Twitter's then-pending motion for a preliminary injunction." (See Pl.'s Mot. at 3:1-2.)
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tips sharply in the plaintiff's favor." See Alliance for the Wild Rockies v. Cottrell, 632 F.3d
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1127, 1134-35 (9th Cir. 2011) (internal quotation and citation omitted).
Here, the Court finds, for reasons stated by the Attorney General (see Def.'s Opp.,
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filed June 1, 2021, 3:18-7:28, 9:3-10:28), Twitter has not made the requisite showing as
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to the first factor, and, accordingly, will deny the motion.
In particular, with respect to the first factor, Twitter's claim for injunctive relief is, as
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discussed in greater detail in the May 11 Order, premature under Reisman v. Caplin, 375
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U.S. 440 (1964) and subsequent cases applying its holding, as the CID is not self-
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executing and the Attorney General has taken no steps to enforce it. See id. at 443-44,
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446 (affirming, for "want of equity," dismissal of claim challenging issuance of summons,
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United States District Court
Northern District of California
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where defendant had "no power to enforce compliance or to impose sanctions for
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noncompliance"; finding plaintiff had "adequate remedy at law," as "enforcement action"
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by agency would "afford[ ] a judicial determination of the challenges to the summons").
Although Twitter now raises a new argument, namely, that financial penalties may
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be imposed if a court were to find Twitter violated the DPTA, the Attorney General here,
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unlike the investigative agencies in the cases cited in the Court's May 11 Order, has no
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authority to itself impose such sanction and there is no evidence before the Court to
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suggest the Attorney General has threatened to file an action pursuant to the DPTA, nor
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is there any evidence otherwise suggesting such filing is imminent. Cf. Morales v. Trans
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World Airlines, Inc., 504 U.S. 374, 382 (1992) (holding injunctive relief proper where state
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attorney general threatened to file action alleging violation of consumer protection
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statute).
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Consequently, the first factor does not weigh in favor of issuance of a preliminary
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injunction, and, in light thereof, the Court does not address herein the second, third, and
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fourth factors. See DISH Network Corp. v. Federal Communications Comm'n, 653 F.3d
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771, 776-77 (9th Cir. 2011) (holding where plaintiff fails to demonstrate first factor weighs
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in its favor, a court "need not consider the remaining three").
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//
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Accordingly, Twitter's motion is hereby DENIED.
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IT IS SO ORDERED.
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Dated: June 8, 2021
MAXINE M. CHESNEY
United States District Judge
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United States District Court
Northern District of California
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