TWITTER, INC. V. KEN PAXTON ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 21-15869
TWITTER, INC.,
D.C. No. 3:21-cv-
Plaintiff-Appellant,
01644-MMC
v.
ORDER AND
KEN PAXTON, in his official
AMENDED
capacity as Attorney General of
OPINION
Texas,
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
2 TWITTER, INC. V. PAXTON
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.
TWITTER, INC. V. PAXTON 3
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.
4 TWITTER, INC. V. PAXTON
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.
TWITTER, INC. V. PAXTON 5
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
6 TWITTER, INC. V. PAXTON
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
TWITTER, INC. V. PAXTON 7
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.
8 TWITTER, INC. V. PAXTON
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
TWITTER, INC. V. PAXTON 9
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
10 TWITTER, INC. V. PAXTON
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 at1093–94.
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).
TWITTER, INC. V. PAXTON 11
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
12 TWITTER, INC. V. PAXTON
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
TWITTER, INC. V. PAXTON 13
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.
14 TWITTER, INC. V. PAXTON
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,
TWITTER, INC. V. PAXTON 15
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,
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
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.
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 at1059 (citing Virginia v. Am. Booksellers Ass’n, 484 U.S.
3But 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.
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 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.
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, INC. V. PAXTON
IV
The issues here are not fit for judicial decision because
Twitter’s allegations do not show that the issuance of the
CID is chilling its speech or causing it other cognizable
injury that the requested injunction would redress. The case
is thus constitutionally unripe, and the district court’s order
dismissing the case is AFFIRMED.