INTRODUCTION & SUMMARY OF ARGUMENT
At issue in this case is a question of exceptional importance to internet users and the public: whether an online host of user-generated content may challenge a publicly-announced government investigation and Civil Investigatory Demand (CID) issued in retaliation for its content moderation decisions, before the investigation is concluded or the CID is enforced.
Online hosts of user-generated content like Appellant Twitter, Inc. make editorial judgments about what content to allow or forbid, highlight or deprioritize, label, or otherwise moderate. These decisions shape both the types of speech in which users can engage and the information they receive when using online services. Users benefit when hosts engage in content moderation to create environments designed for particular audiences, tailor their services to users’ specific interests, or moderate content that users do not wish to see. Moreover, users benefit when different hosts can offer a diverse range of services, free from unconstitutional government interference, from which users can choose.
A government official’s investigation into a host’s content moderation decisions begun because the official disagrees with particular content moderation decisions stands to inhibit the host’s content moderation—and indeed is designed to do so. In this case, AG Paxton explicitly connected his investigation to Twitter’s decision to permanently suspend then-President Trump’s account. As soon as AG Paxton announced his investigation and issued the CID seeking internal documents concerning Twitter’s content moderation decisions, Twitter understood that similar decisions going forward risked adding fuel to the investigatory fire, that ongoing internal deliberations about content moderation rules or decisions would be subject to discovery under the CID and second-guessing by AG Paxton, and that it could minimize its legal, reputational, and financial risks by engaging in self-censorship along the lines indicated by AG Paxton.
If permitted to stand, the decision of the Panel of this Court dismissing Twitter’s claim on prudential ripeness grounds will allow AG Paxton and other government officials to wield their investigatory powers to chill hosts’ content moderation. The CID chilled Twitter from exercising its First Amendment protected right to engage in content moderation from the moment it was issued. Requiring Twitter to await a possible enforcement action at the conclusion of AG Paxton’s investigation or until the CID is enforced to challenge it harms both the public and Twitter’s First Amendment rights.
AG Paxton’s investigation is not occurring in a vacuum. Rather, it is part of a trend of government officials in the United States using investigations to pressure or punish hosts for making content moderation decisions with which they disagree.
For these reasons, the question of whether a host may bring a preenforcement challenge to a retaliatory CID designed to chill its content moderation decisions is one of exceptional importance to the public. The Court should grant Twitter’s petition for panel rehearing and rehearing en banc.