Google, Incorporated v. James Hood, III , 822 F.3d 212 ( 2016 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60205 United States Court of Appeals
Fifth Circuit
FILED
GOOGLE, INCORPORATED, May 18, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
JAMES M. HOOD, III, Attorney General of the State of Mississippi, in his
official capacity,
Defendant - Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
In response to Google’s petition for panel rehearing, the opinion of the
court issued on April 8, 2016, at --- F.3d ---, 2016 WL 1397765, is withdrawn,
and the following is substituted. The petition for rehearing is otherwise
DENIED.
Mississippi’s Attorney General, James M. Hood III, believes that
internet giant Google may be liable under state law for facilitating dangerous
and unlawful activity through its online platforms. Hood’s conflict with Google
culminated in his issuance of a broad administrative subpoena, which Google
challenged in federal court. The district court granted a preliminary injunction
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prohibiting Hood from (1) enforcing the administrative subpoena or (2)
bringing any civil or criminal action against Google “for making accessible
third-party content to internet users.” Hood appeals, arguing that the district
court should have dismissed Google’s suit on a number of threshold grounds,
and in any event erred in granting injunctive relief. Expressing no opinion on
the merits, we vacate the injunction.
I.
This dispute concerns the adequacy of Google’s efforts to police the
technology services it provides to tens of millions of people every day.
A.
Google’s leading internet search engine processes over 3.5 billion
searches per day, finding webpages responsive to users’ queries through an
algorithmic review of billions of pages selected from over 60 trillion indexed
pages. 1 Google also operates YouTube, a popular platform for uploading and
viewing videos to which nearly 300 new hours of content are added every
minute. Both services feature Google’s “Autocomplete” function, which uses
an algorithm based on prior search activity and the content of indexed pages
to predict a query as it is typed. This feature, according to Google, is intended
to save time and correct common misspellings. The user may select one of the
suggested queries to run a search, or ignore the suggestions and keep typing.
Google earns revenue through services called AdWords, which places
third-party advertisements alongside search results and YouTube videos, and
AdSense, which allows third-party websites to host advertisements generated
1 These and other statistics cited in this opinion reflect evidence filed with the district
court in 2014, and may be outdated. A “webpage” is a single “document on the World Wide
Web, consisting of a hypertext file and any related files for scripts and graphics, and often
hyperlinked to other documents on the Web.” Webpage, AMERICAN HERITAGE DICTIONARY
OF THE ENGLISH LANGUAGE at 1963 (5th ed. 2011). A “website” is “[a] set of interconnected
webpages.” Website, id.
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through AdWords. Over 40 million AdWords advertisements are created each
day. The order in which they appear to users depends on, among other factors,
how much the advertiser pays and the “quality” of the advertisements and
linked websites
Although the vast majority of the content users find through Google’s
services is produced by third parties, Google takes measures to weed out illegal
material. For example, when Google receives a valid “takedown notice” from a
copyright owner about a webpage containing unauthorized material, or when
a court rules content unlawful, Google removes the offending page from its
search results. In 2013 alone, Google removed 222 million pages from its
search results as a result of takedown notices. Though it generally does not
remove whole sites on the basis of infringing pages, Google “incorporates”
copyright removal notices as a negative factor in the search algorithm it uses
to rank sites. The company also removes from its search results limited
content such as personal financial information and images showing sexual
abuse of children. And Google blocks predictive Autocomplete queries for
narrow “cases of potentially shocking or offensive entries (e.g., hate speech)
and in cases where there is a high correlation between particular terms and
infringing copyright.” 2
Videos that violate YouTube’s terms and conditions can be removed in
several ways. Users can flag videos, which are then reviewed and, if they
violate Google’s guidelines, taken down. Google also removes videos in
response to valid legal complaints and uses computer models to identify large-
scale policy violations. Additionally, a system called Content ID allows
copyright owners to “identify and manage their content on YouTube” by
2 In other countries, Google further limits search results in accordance with “local
law.” For example, Google removes Nazi-related content from its Germany-based search
engine and “insults to religion” from its India-based search engine.
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sending YouTube a database of copyrighted files. When a newly uploaded
video matches such a file, the copyright owner can choose to mute, block,
monetize, or track that video. User accounts can be terminated for egregious
or repeated violations.
Google’s AdWords policies prohibit advertising for, among other things,
counterfeit goods, “dangerous products or services” including recreational
drugs and weapons, “products that are designed to enable dishonest behavior”
such as hacking software, and hate-promoting or otherwise “offensive or
inappropriate content.” Google restricts (but does not prohibit) advertising for
“adult-oriented content,” alcoholic beverages, intellectual-property-violative
material, and healthcare-related content (including over-the-counter and
prescription medication). In 2014, Google rejected over 428 million
advertisements and suspended or terminated over 900,000 advertiser accounts
for AdWords policy violations. Similar policies govern AdSense.
B.
In late 2012 and early 2013, Hood and other state attorneys general
began expressing concern that search engines were not doing enough to combat
copyright infringement, the sale of prescription drugs and counterfeit products,
and other “illegal and harmful” activity on the internet. In April 2013, Hood’s
office wrote to Google about these topics, alleging that the company had
inadequately responded to previous requests for information, showing an
“unwillingness to make meaningful reforms” and “a lack of commitment to
making the Internet a safe place for families and commerce.” Hood complained
that, among other things, children were “able to purchase drugs without a
prescription through Google,” and that “sites peddling counterfeit and pirated
goods are still appearing at the top of” search results. Hood expressed a desire
to meet with Google to develop solutions, but warned that “if voluntary actions
will not suffice, we will take legal action.” As it had before, Google responded,
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highlighting its existing efforts to counter illegal activity online and explaining
why, in its view, more severe measures were inappropriate.
Friction between the parties escalated. In May 2013, Hood threatened
that if the company did not “provide adequate answers,” he would urge his
fellow attorneys general to issue civil investigative demands (subpoenas) to the
company. He also demanded a “24-hour link” through which requests by
attorneys general to remove webpages from Google’s searchable index would
be “granted or addressed within hours.” About a month later, Hood sent
Google’s counsel a letter requesting a litigation hold, explaining that
Mississippi was “investigating and evaluating Google’s conduct related to its
search algorithm, auto-complete feature, advertising policies, and any other
related functions,” with the purpose of “determin[ing] whether there exist any
violations of Mississippi law.” “One of the many potential outcomes of the
ongoing investigation,” Hood warned, “could be civil or criminal litigation.”
At a subsequent meeting of attorneys general, Hood called on his
colleagues to issue subpoenas in an effort to “force [Google] to come to the table
in earnest and make these changes and admit what they’ve done” and “block
. . . some of the search results that are coming to the top ahead of . . . legitimate
sites.” Google wrote to Hood about these remarks, arguing that its existing
practices were lawful, that more stringent measures against illegal content
would be inconsistent with free speech values and the practices of similar
companies, and that federal law immunized Google from liability for the
complained-of conduct.
In November 2013, Hood sent another letter criticizing Google and
demanding that the company (1) promote in its search results “sites [that] have
been authorized to provide content”; (2) mark such “authorized” sites in search
results; (3) remove entire websites “substantially dedicated to intellectual
property infringement” from its search index; (4) refuse to index new pages
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from websites “for which Google has received multiple notices of infringement”;
(5) “dramatically” demote “rogue” infringement sites in search results; and (6)
warn users before it “permits them to link from Google to rogue sites.” Hood
rejected the notion that Google was immune from legal action, stating that
Google was being investigated for its “own conduct” and was “not a mere
publisher of third-party content when it suggests search terms through
Autocomplete,” profits from YouTube videos involving illegal activity, or builds
its search algorithms. Hood repeated similar criticisms and demands at public
meetings in early 2014, as the parties continued to exchange letters.
Google has made some changes in response to Hood’s investigation. It
created a “trusted flag” mechanism through which Google promptly reviewed
videos Hood’s office complained about. After being trained on that tool, Hood’s
office flagged seven videos, six of which Google quickly took down. When asked
by the district court, Hood’s counsel could not identify any investigatory efforts
related to the videos his office flagged. His office has nevertheless asked that
Google immediately remove flagged videos pending review and “consider
implementing a more comprehensive content evaluation process.” Google has
also blocked certain Autocomplete predictions and no longer permits
advertisements on videos relating to “health and pharmacy” topics.
C.
In October 2014, Hood made good on his threats to issue an
administrative subpoena, which stated broadly that there were “reasonable
grounds to believe that Google Inc. may have violated . . . the Mississippi
Consumer Protection Act,” Miss. Code. Ann. § 75-24-1, et seq. The
administrative subpoena sought information on Google’s platforms,
advertising practices, and knowledge of and efforts to police “dangerous” or
“illegal” content such as prescription or illicit drug sales, drug abuse, credit
card leaks, fraudulent identification documents, human trafficking, and
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copyright infringement. And it demanded a response by mail to a post office
box within thirty days, warning that if Google did not comply, Hood “may apply
to” a state court “for an order compelling compliance in accordance with Miss.
Code Ann. § 75-24-17.”
The administrative subpoena, which totals 79 pages and includes 69
interrogatories and 141 document requests, is written expansively. For
example, many of its requests pertain to conduct by which Google or third
parties “aid,” “abet,” “assist,” “facilitate,” “encourage,” or “promote” content or
conduct that is “dangerous” or “unlawful.” These verbs are all defined as
the doing of any act, including the act of hosting or displaying
search results, content or advertisements, that could possibly
directly, indirectly or tangentially further or advance a course of
action by any actor or actors, regardless of whether or not the act
or acts would be protected or immunized under the
Communications Decency Act, 47 United States Code (“U.S.C.”),
§ 230. These terms should be construed broadly . . .
“Dangerous content or conduct,” in turn,
means content, conduct, or information that in itself is dangerous
or has indicia that it could, in any way, either directly, indirectly
or tangentially, aid, abet, assist, facilitate, encourage or promote
activity that could lead to physical harm or injury and takes into
account all facts and circumstances, including the age of the
intended audience.
Similarly, “illegal” or “unlawful” “content or conduct”
means content, conduct, materials or any information that is itself
in violation of any criminal or civil law of the United States or that
of any state or territory or has indicia that it could, either directly,
indirectly or tangentially, promote, facilitate, encourage, aid, or
abet activity that could be in violation of any criminal or civil law
of the United States or that of any state or territory.
Some of the administrative subpoena’s requests would require massive
document production. For example, one seeks “all documents concerning any
actions considered, taken, or not taken to remove videos . . . that appear to be
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promoting, offering for sale, disseminating, engaging in or facilitating
Dangerous or Illegal Content/Conduct,” without temporal limitation. For
context, in 2014 alone, Google removed or blocked over 180 million videos for
policy violations. Many requests lack temporal limitations as well. Google
executives aver that responding to the administrative subpoena “would be
incredibly burdensome, in terms of time and resources.”
The parties agreed to extend the return date to January 5, 2015, and
that Google would in the meantime voluntarily share some materials. Google
then shared approximately 100,000 pages of documents. Google claims that
those documents show third parties created all of the content that the
administrative subpoena identifies as objectionable. On December 17, 2014,
Hood’s office rebuffed Google’s requests to narrow the administrative
subpoena’s temporal scope and exclude subject matters Google maintains are
immunized by or are exclusively the province of federal law.
D.
On December 19, 2014—without further responding to the
administrative subpoena or seeking relief in state court—Google filed this
lawsuit. Google alleges that Hood’s investigation violates Google’s immunity
under the Communications Decency Act (CDA), its Fourth Amendment rights,
and the First Amendment rights of Google and its users. Google contends that
“any further steps [Hood] takes to fulfill his threats of a criminal prosecution,
civil litigation, and/or enforcement proceeding against Google under
Mississippi law for making accessible third-party content to Internet users
would further violate” these rights. Google also alleges that federal law
preempts Hood’s “[i]nquiry, insofar as it pertains to possible copyright
infringement or the importation of prescription drugs.”
On the same day it filed its complaint, Google moved for a temporary
restraining order and a preliminary injunction. Hood filed an opposition and
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a motion to dismiss. The district court held a hearing at which each side
offered legal argument but neither put on testimony. The court then denied
Hood’s motion to dismiss and preliminarily enjoined him from (1) enforcing the
administrative subpoena, or (2) “bringing a civil or criminal charge against
Google under Mississippi law for making accessible third-party content to
Internet users (as threatened).” This appeal followed.
II.
A preliminary injunction is an “extraordinary remedy” that should not
be granted unless its proponent clearly shows: “(1) a substantial likelihood that
he will prevail on the merits, (2) a substantial threat that he will suffer
irreparable injury if the injunction is not granted, (3) his threatened injury
outweighs the threatened harm to the party whom he seeks to enjoin, and (4)
granting the preliminary injunction will not disserve the public interest.” Lake
Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir. 2003).
We review the district court’s determination on each of these elements for clear
error, its conclusions of law de novo, and the ultimate decision whether to grant
relief for abuse of discretion. Bluefield Water Ass’n v. City of Starkville, 577
F.3d 250, 253 (5th Cir. 2009).
Our review of subject-matter jurisdiction is plenary and de novo.
Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir. 2003). “Although we
review a district court’s abstention ruling for abuse of discretion, we review de
novo whether the requirements of a particular abstention doctrine are
satisfied.” Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 518 (5th Cir. 2004) (quoting
Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d
650, 652 (5th Cir. 2002)).
III.
This lawsuit, like others of late, reminds us of the importance of
preserving free speech on the internet, even though that medium serves as a
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conduit for much that is distasteful or unlawful. See Backpage.com, LLC v.
Dart, 807 F.3d 229 (7th Cir. 2015) (holding unconstitutional a sheriff’s threats
to credit card companies to stop doing business with a website that hosts
classified ads for prostitution). Also like other recent litigation, this case
implicates section 230 of the Communications Decency Act—Congress’s grant
of “broad immunity” to internet service providers “for all claims stemming from
their publication of information created by third parties,” which we and other
circuits have consistently given a wide scope. Doe v. MySpace, Inc., 528 F.3d
413, 418 (5th Cir. 2008); see also Doe v. Backpage.com, LLC, 817 F.3d 12, 18–
24, 29 (1st Cir. 2016) (affirming dismissal based on section 230 despite
appellants’ “persuasive case” that the defendant “tailored its website to make
sex trafficking easier,” and stating: “If the evils that the appellants have
identified are deemed to outweigh the First Amendment values that drive the
CDA, the remedy is through legislation, not through litigation.”). 3 Yet we are
also cognizant that an injunction is an equitable remedy that should only issue
when essential to prevent an otherwise irreparable injury. Weinberger v.
Romero-Barcelo, 456 U.S. 305, 311–12 (1982); Lake Charles Diesel, 328 F.3d at
195–96. With these principles in mind, we turn to the parties’ arguments.
A.
We first reject Hood’s contention that we can resolve this case on the
simple ground that the district court lacked federal-question jurisdiction.
Federal courts have jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. We
3 Legislatures have indeed become entangled in these issues. See John D. McKinnon,
Senate Holds Classified-Ad Site Backpage.com in Contempt, WALL ST. J. (Mar. 17, 2016),
http://www.wsj.com/articles/senate-holds-classified-ad-site-backpage-com-in-contempt-
1458241526 (reporting on contempt resolution authorizing the Senate’s legal counsel to bring
a federal enforcement action concerning subpoenas that a controversial website company,
relying on the First Amendment and the CDA, has refused to comply with).
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apply the “well-pleaded complaint rule” to determine whether a suit arises
under federal law, asking “whether the plaintiff has affirmatively alleged a
federal claim.” New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328
(5th Cir. 2008). As a corollary, “anticipated or potential defenses, including
defenses based on federal preemption, do not provide a basis for federal
question jurisdiction.” Id. Here, Google brings four claims under 42 U.S.C.
§ 1983 alleging violations of the United States Constitution and federal
statutory law. This satisfies the well-pleaded complaint rule.
Focusing on Google’s claims for declaratory relief, Hood protests that
Google really presents only artfully pleaded anticipated defenses to a future
state-law action—but he is wrong, as illustrated by our recent decision in
NiGen Biotech, L.L.C. v. Paxton, 804 F.3d 389 (5th Cir. 2015). There, the Texas
Attorney General determined that NiGen’s dietary supplements were
misleadingly labeled in violation of state law. He sent NiGen and its retailers
letters “intimating that formal enforcement was on the horizon”; as a result,
the retailers stopped selling the accused products. 804 F.3d at 392. NiGen
sought federal declaratory and injunctive relief, but the Attorney General
argued that all of NiGen’s claims were “essentially anticipatory defenses to the
threatened enforcement action.” Id. at 392, 395. We disagreed, explaining that
when a plaintiff seeks both declaratory and injunctive relief from allegedly
unconstitutional state action, the well-pleaded complaint rule as adapted to
declaratory actions “does not prevent that plaintiff from establishing federal
jurisdiction.” Id. at 395–96. Here too, Google’s claims seeking to enjoin a state
officer’s alleged violations of federal law invoke federal-question jurisdiction.
See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983) (“It is beyond
dispute that federal courts have jurisdiction over suits to enjoin state officials
from interfering with federal rights.”); Major League Baseball v. Crist, 331 F.3d
1177, 1182 (11th Cir. 2003) (holding that federal-question jurisdiction existed
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over § 1983 claims that a state attorney general’s investigative subpoena was
preempted by federal law). 4
B.
We next consider whether the district court should have abstained under
the doctrine of Younger v. Harris, 401 U.S. 37 (1971), which applies to suits for
injunctive and declaratory relief. See Nobby Lobby, Inc. v. City of Dallas, 970
F.2d 82, 86 (5th Cir. 1992).
Younger established that federal courts should not enjoin pending state
criminal prosecutions unless the plaintiff shows “bad faith, harassment, or any
other unusual circumstances that would call for equitable relief,” such as a
“flagrantly and patently” unconstitutional state statute. Younger, 401 U.S. at
53–54. The doctrine reflects the principle that equitable remedies are
inappropriate “when the moving party has an adequate remedy at law and will
not suffer irreparable injury if denied equitable relief.” Id. at 43–44. It also
protects our federal system’s “notion of ‘comity,’ that is, a proper respect for
state functions.” Id. at 44. As the Supreme Court has explained, interference
with state judicial proceedings “prevents the state . . . from effectuating its
substantive policies . . . . results in duplicative legal proceedings, and can
readily be interpreted ‘as reflecting negatively upon the state courts’ ability to
enforce constitutional principles.’” Huffman v. Pursue, Ltd., 420 U.S. 592, 604
(1975) (quoting Steffel v. Thompson, 415 U.S. 452, 462 (1974)).
4 The remainder of Hood’s purported federal-question jurisdiction arguments fail, as
they relate to the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)
(“Dismissal for lack of subject matter jurisdiction because of the inadequacy of the federal
claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior
decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve a
federal controversy.’” (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S.
661, 666 (1974))); Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1998) (explaining that
whether a federal statute is enforceable through § 1983 is a merits question that “does not
implicate jurisdiction”).
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Although Younger has been expanded beyond the criminal context,
abstention is not required in every case of “[p]arallel state-court proceedings.”
Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013). Rather, as the
Supreme Court recently clarified, it applies only to “three ‘exceptional’
categories” of state proceedings: ongoing criminal prosecutions, certain civil
enforcement proceedings akin to criminal prosecutions, 5 and “pending ‘civil
proceedings involving certain orders . . . uniquely in furtherance of the state
courts’ ability to perform their judicial functions.’” 6 Id. at 588, 591 (quoting
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350,
368 (1989)). If state proceedings fit into one of these categories, a court
“appropriately consider[s] . . . before invoking Younger” whether there is “(1)
‘an ongoing state judicial proceeding, which (2) implicates important state
interests, and (3) . . . provides an adequate opportunity to raise federal
challenges.’” Id. at 593 (brackets omitted); see Middlesex Cty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
The district court did not err in declining to abstain because there was
no “ongoing state judicial proceeding” fitting one of Younger’s three categories.
“[A]bstention from the exercise of federal jurisdiction,” it must be remembered,
“is the ‘exception, not the rule.’” Sprint, 134 S. Ct. at 593 (quoting Haw. Hous.
Auth. v. Midkiff, 467 U.S. 229, 236 (1984)). And Younger does not apply merely
because “a state bureaucracy has initiated contact with a putative federal
plaintiff,” La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483,
5See, e.g., Ohio Civil Rights Comm’n v. Dayton Christian Schs., Inc., 477 U.S. 619,
623–28 (1986) (enforcement action before civil rights commission); Middlesex Cty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432–35 (1982) (bar disciplinary proceedings);
Huffman, 420 U.S. at 595–97, 611–12 (state-instituted public nuisance proceeding).
6 See, e.g., Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 3, 13 (1987) (execution of state-court
judgment pending appeal); Juidice v. Vail, 430 U.S. 327, 330, 334–37 (1977) (state civil
contempt procedures for judgment debtors).
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1491 (5th Cir. 1995) (quoting Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225,
1229 (4th Cir. 1989)), or “a state investigation has begun,” Mulholland v.
Marion Cty. Election Bd., 746 F.3d 811, 817 (7th Cir. 2014). In Louisiana
Debating, for example, a city commission with the power to issue cease-and-
desist orders notified four private clubs of discrimination complaints, told them
that the commission had the power to adjudicate or conciliate those complaints,
and requested certain information. 42 F.3d at 1487. The clubs filed § 1983
actions seeking declaratory and injunctive relief on the ground that the city’s
anti-discrimination ordinance could not be applied to them consistent with the
First Amendment. Id. at 1488. We affirmed the district court’s decision not to
abstain, noting that the state action had not progressed nearly as far as in the
Supreme Court’s cases applying Younger to state agency proceedings in which
the state had already “investigated the allegations, made determinations that
probable cause existed, and served formal charges.” See id. at 1490–91.
Here, we cannot agree with Hood that an executive official’s service of a
non-self-executing subpoena creates an “ongoing state judicial proceeding.” As
of now, Hood has not moved to enforce the administrative subpoena in any
state court, nor has any judicial or quasi-judicial tribunal begun proceedings
against Google. See Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)
(holding Younger abstention clearly erroneous “[a]bsent any pending
proceeding in state tribunals”). Our holding that Younger does not apply
comports with the doctrine’s underlying principles because, in the absence of
any pending state judicial proceeding, federal intervention would not “result
in duplicative legal proceedings” or “reflect[] negatively upon [a] state court’s
ability to enforce constitutional principles.” Steffel, 415 U.S. at 462.
Our decision in Earle, 388 F.3d at 515, does not compel a different
conclusion. There, we considered “whether state grand jury proceedings in
which subpoenas have been issued constitute an ‘ongoing state proceeding’
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such that abstention is warranted.” Id. at 519 (emphasis added). Crucial to
our affirmance of the district court’s abstention was that a Texas grand jury
“is said to be ‘an arm of the court by which it is appointed.’” Id. at 521 (quoting
Dall. Cty. Dist. Att’y v. Doe, 969 S.W.2d 537, 542 (Tex. App. 1998)). Indeed, a
Texas court (1) “impanels the grand jury after testing the qualifications of its
members;” (2) “administers the jurors’ oath, and instructs them as to their
duties”; (3) advises the grand jury “on any matter it is considering”; and (4)
issues and enforces any subpoena sought to be issued by the grand jury. Id.
These factors are not present here. An executive official who frequently
appears as an adversarial litigant in state courts is not an “arm” of the
judiciary, and the administrative subpoena here has not been issued or
enforced by any court. For these reasons, Earle does not control our analysis. 7
Other courts’ decisions support our conclusion that Younger does not
apply. Most on point, one district court found that there was no ongoing
judicial proceeding where a state attorney general issued civil investigative
demands to professional baseball teams, reasoning: “Unless and until someone
7 Nor are we persuaded by the out-of-circuit cases Hood cites. He relies most heavily
on J. & W. Seligman & Co. v. Spitzer, which held that a state attorney general’s issuance of
an investigative subpoena initiated an ongoing proceeding for Younger purposes. No. 05 Civ.
7781 (KMW), 2007 WL 2822208, at *5 (S.D.N.Y. Sept. 27, 2007). Most of the cases on which
that district court decision relied involved grand-jury subpoenas or judicially issued search
warrants, both of which—unlike an administrative subpoena issued without prior court
approval—involve proceedings before a neutral court or an arm thereof. The court
disregarded this distinction because “the information sought may be used to initiate civil or
criminal proceedings,” id.—but that logic would apply to any investigative step, and courts
need not abstain in the face of a mere investigation. See Mulholland, 746 F.3d at 817 (“The
possibility that a state proceeding may lead to a future prosecution of the federal plaintiff is
not enough to trigger Younger abstention; a federal court need not decline to hear a
constitutional case within its jurisdiction merely because a state investigation has begun.”).
The Eighth Circuit has held that abstention was required by subpoenas issued pursuant to
Arkansas law under which a prosecutor “takes the place of a grand jury.” Kaylor v. Fields,
661 F.2d 1177, 1182 (8th Cir. 1981) (quoting Johnson v. State, 133 S.W.2d 15, 18 (Ark. 1939)).
But Hood has cited no comparable Mississippi law and, since Kaylor, the Supreme Court has
clarified the limited reach of Younger—including in a recent opinion correcting the Eighth
Circuit’s overly broad reading of the doctrine. See Sprint, 134 S. Ct. at 593.
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files a proceeding in court, CIDs are simply part of an executive branch
investigation.” Major League Baseball v. Butterworth, 181 F. Supp. 2d 1316,
1321 n.2 (N.D. Fla. 2001), aff’d sub nom. Major League Baseball v. Crist, 331
F.3d 1177 (11th Cir. 2003). Also, the First Circuit refused to apply Younger
where Puerto Rico’s Insurance Commissioner had, as part of a multi-year
investigation, issued subpoenas that did not require prior court approval.
Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 511–12, 519 (1st Cir.
2009). That court drew on a Fourth Circuit decision in articulating a “rule[]
requiring the commencement of ‘formal enforcement proceedings’ before
abstention is required.” Id. at 519–20 (quoting Telco, 885 F.2d at 1229). 8 We
do not articulate any bright-line rule, but we do hold that the issuance of a non-
self-executing administrative subpoena does not, without more, mandate
Younger abstention.
C.
Despite the foregoing, our precedents lead us to conclude that this
administrative subpoena was not ripe for adjudication by the district court.
This follows from our cases considering federal administrative subpoenas that,
as here, were non-self-executing—that is, the issuing agency could not itself
sanction non-compliance. In one case, the recipient of investigatory Federal
Trade Commission subpoenas sought injunctive and declaratory relief against
their enforcement. Atl. Richfield Co. v. F.T.C., 546 F.2d 646, 647 (5th Cir.
1977). Stressing that the subpoenas were “not self-executing and [could] only
be enforced by a district court,” we held that pre-enforcement relief would be
“inappropriate.” Id. at 649. We reasoned that, if and when the FTC moved to
enforce the subpoenas as contemplated by statute, the recipient would have an
8 See also ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 140 (3d Cir. 2014) (noting
in dicta that all of the Supreme Court’s Younger cases involved “some type of formal
complaint or charges”).
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adequate remedy at law. Until then, the recipient would “suffer no undue
hardship from denial of judicial relief” because it could not absent a court order
“be forced to comply with the subpoenas nor subjected to any penalties for
noncompliance.” Id. at 650; accord Anheuser-Busch, Inc. v. F.T.C., 359 F.2d
487 (8th Cir. 1966) (Blackmun, J.).
We applied the same logic when the recipient of an administrative
subpoena issued by the Immigration and Naturalization Service moved to
quash it in federal court. In re Ramirez, 905 F.2d 97, 98 (5th Cir. 1990). The
operative statute gave the INS no power to enforce its own subpoenas, but
authorized district courts to issue orders requiring compliance on pain of
contempt. Id. at 98 & n.2. Though both parties thought the case properly
before the district court, we disagreed, stating: “Where an agency must resort
to judicial enforcement of its subpoenas, courts generally dismiss anticipatory
actions filed by parties challenging such subpoenas as not being ripe for review
because of the availability of an adequate remedy at law if, and when, the
agency files an enforcement action.” Id. at 98. Because the government had
not filed an enforcement action, this court held that the “motion to quash was
not ripe for judicial action . . . and . . . should have been dismissed for lack of
subject matter jurisdiction.” Id. at 100; see also Reisman v. Caplin, 375 U.S.
440, 443–46 (1964) (holding that a pre-enforcement challenge to a non-self-
executing Internal Revenue Service summons was “subject to dismissal for
want of equity”); Belle Fourche Pipeline Co. v. United States, 751 F.2d 332,
334–35 (10th Cir. 1984) (finding no subject-matter jurisdiction over pre-
enforcement challenge to investigative subpoena and citing Reisman as
“announc[ing] a rule strongly disfavoring any pre-enforcement review of
investigative subpoenas”).
The situation here is much the same. The statute under which this
administrative subpoena was issued gives Hood no authority to enforce it;
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instead, if the recipient refuses to comply, the Attorney General “may, after
notice, apply” to certain state courts “and, after hearing thereon, request an
order” granting injunctive or other relief and enforceable through contempt.
Miss. Code Ann. § 75-24-17. This procedure parallels those in the statutes at
issue in Atlantic Richfield, 546 at 649 n.3, and Ramirez, 905 F.2d at 98 n.2.
Hood has not brought an enforcement action. 9 And Google does not contest
Hood’s assertions that it could raise its objections to the administrative
subpoena if Hood ever brings an enforcement proceeding. 10 The only real
difference is that we have before us a state, not federal, subpoena. But we see
no reason why a state’s non-self-executing subpoena should be ripe for review
when a federal equivalent would not be. If anything, comity should make us
less willing to intervene when there is no current consequence for resisting the
subpoena and the same challenges raised in the federal suit could be litigated
in state court. See O’Keefe v. Chisholm, 769 F.3d 936, 939–42 (7th Cir. 2014)
(finding that a federal plaintiff’s ability to litigate subpoena in state court
counseled against injunctive relief even though the district court reasoned that
the defendants’ “bad faith” conduct justified an injunction).
9 Cf. Sheridan v. Garrison, 273 F. Supp. 673, 675–85 (E.D. La. 1967) (Rubin, J.)
(enjoining enforcement of subpoena where plaintiff had been formally charged with an
offense, had made “every effort” to challenge the subpoena in state court but had been denied
relief, and faced contempt for refusing to testify before grand jury without an attorney
present), rev’d in part on other grounds, 415 F.2d 699 (5th Cir. 1969).
10 Perhaps because they are not yet implicated, the parties do not address the
standards or procedures for challenging an administrative subpoena in Mississippi’s courts.
We note that Mississippi law expressly provides for the quashing of court-issued subpoenas
that seek “privileged or other protected matter,” subject the recipient “to undue burden or
expense,” or are issued in “bad faith.” Miss. R. Civ. P. 45(d)(1)(A), (f). And we will of course
not presume that Mississippi courts would be insensitive to the First Amendment values that
can be implicated by investigatory subpoenas, see United States v. R. Enters., Inc., 498 U.S.
292, 303 (1991); id. at 306–07 (Stevens, J., concurring), or to the general principle that
“[c]ourts will not enforce an administrative subpoena . . . issued for an improper purpose,
such as harassment,” Burlington N. R.R. Co. v. Office of Inspector General, 983 F.2d 631, 638
(5th Cir. 1993) (citing United States v. Powell, 379 U.S. 48, 58 (1964)).
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Because the administrative subpoena is not ripe for review, we hold that
the district court should have rejected Google’s pre-enforcement challenge.
D.
The district court enjoined Hood not only from enforcing the
administrative subpoena, but also from “bringing a civil or criminal charge
against Google under Mississippi law for making accessible third-party content
to Internet users.” Mindful that an injunction is an “extraordinary remedy”
that should not issue absent a substantial threat that the movant will suffer
irreparable injury without one, Lake Charles Diesel, 328 F.3d at 195–96, we
are persuaded that the district court should not have granted this relief at this
juncture.
In Morales v. Transworld Airlines, the Supreme Court affirmed on
federal preemption grounds an injunction against enforcement, under state
consumer protection law, of written guidelines “containing detailed standards
governing” air fare advertising—which Texas had told airlines they were
violating through “formal notice[s] of intent to sue.” 504 U.S. 374, 378–80, 391
(1992) (alteration in original). But the Court also held that the district court
had “disregarded the limits on the exercise of its injunctive power” by enjoining
the attorney general from “initiating any enforcement action . . . which would
seek to regulate or restrict any aspect of the . . . plaintiff airlines’ air fare
advertising or the operations involving their rates, routes, and/or services.” Id.
at 382. The Court explained:
In suits such as this one, which the plaintiff intends as a “first
strike” to prevent a State from initiating a suit of its own, the
prospect of state suit must be imminent, for it is the prospect of
that suit which supplies the necessary irreparable injury. Ex parte
Young thus speaks of enjoining state officers “who threaten and are
about to commence proceedings,” and we have recognized in a
related context that a conjectural injury cannot warrant equitable
relief. Any other rule (assuming it would meet Article III case-or-
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controversy requirements) 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. This problem is vividly enough illustrated by
the blunderbuss injunction in the present case, which declares pre-
empted “any” state suit involving “any aspect” of the airlines’ rates,
routes, and services. As petitioner has threatened to enforce only
the obligations described in the guidelines regarding fare
advertising, the injunction must be vacated insofar as it restrains
the operation of state laws with respect to other matters.
Id. at 382–83 (citations omitted).
Unlike with the relief upheld in Morales, we do not have a formal notice
of intent to sue for specific conduct. 11 Rather, as with the relief vacated in
Morales, this injunction covers a fuzzily defined range of enforcement actions
that do not appear imminent. We cannot on the present record predict what
conduct Hood might one day try to prosecute under Mississippi law. Hood’s
complaints to Google and the public have been wide-ranging, and as Google
stresses in its brief, the administrative subpoena is a “pre-litigation
investigative tool” seeking information on a broad variety of subject matters—
ranging from alleged facilitation of copyright infringement, illegal prescription
drug sales, human trafficking, the sale of false identification documents, and
credit card data theft. Further, whether a defendant’s actions exclusively
consist of “making accessible third-party content to Internet users,” the main
qualifying language in this injunction, is not always readily determinable even
after a complaint is brought. See CYBERsitter, LLC v. Google, Inc., 905 F.
Supp. 2d 1080, 1086 (C.D. Cal. 2012) (denying Rule 12(b)(6) motion based on
11 Also, because it lacks a concrete and imminent threat of prosecution and challenges
the anticipated application of a general consumer protection law, this case has little in
common with those in which courts have enjoined threatened enforcement of state statutes
specifically passed to target a website accused of facilitating sex trafficking through its online
classified ads. See Backpage.com, LLC v. Hoffman, No. 13-cv-03952 (DMC)(JAD), 2013 WL
4502097 (D.N.J. Aug. 20, 2013); Backpage.com, LLC v. Cooper, 939 F. Supp. 2d 805 (M.D.
Tenn. 2013); Backpage.com v. McKenna, 881 F. Supp. 2d 1262 (W.D. Wash. 2012).
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CDA immunity); Perfect 10, Inc. v. Google, Inc., No. CV 04-9484 AHM (SHx),
2008 WL 4217837, at *8 (C.D. Cal. July 16, 2008) (“The question whether any
of Google’s conduct disqualifies it for immunity under the CDA will
undoubtedly be fact-intensive.”). 12
True enough, a federal lawsuit can sometimes proceed on the basis of a
merely threatened prosecution. But unlike in, say, Steffel—where the plaintiff
was told he would be prosecuted if he distributed handbills at a certain
shopping center, 415 U.S. at 455—adjudicating whether federal law would
allow an enforcement action here would require us to determine the legality of
state action “in hypothetical situations.” 13 Morales, 504 U.S. at 382. And of
course, “[t]he loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S.
347, 373 (1976) (plurality opinion). “A preliminary injunction is not
appropriate, however, ‘unless the party seeking it can demonstrate that “First
Amendment interests are either threatened or in fact being impaired at the
time relief is sought.”’” Nat’l Treasury Emp. Union v. United States, 927 F.2d
1253, 1254 (D.C. Cir. 1991) (Thomas, J.) (quotation marks and brackets
omitted) (quoting Wagner v. Taylor, 836 F.2d 566, 577 n.76 (D.C. Cir. 1987)
(quoting Elrod, 427 U.S. at 373)). Thus, invocation of the First Amendment
12 By citing these cases, we do not suggest that section 230 of the CDA would not apply
if Hood were to eventually bring an enforcement action, or cannot be applied at the motion-
to-dismiss stage. Indeed, several courts have applied the provision to dismiss claims against
Google. See, e.g., Dowbenko v. Google, Inc., 582 F. App’x 801, 804–05 (11th Cir. 2014) (per
curiam) (affirming dismissal of defamation claim; rejecting the argument that the CDA did
not apply because “Google manipulated its search results to prominently feature the article
at issue”); Jurin v. Google, Inc., 695 F. Supp. 2d 1117, 1122–23 (E.D. Cal. 2010) (rejecting the
argument that the CDA did not apply because Google “suggest[ed] keywords to competing
advertisers”).
13 Nor is this case like NiGen, in which we allowed a suit to proceed where a state
attorney general had told the plaintiff that it had “determined” that a specific act—the
labeling of products with the letters “HCG”—violated a particular law, and “intimat[ed] that
formal enforcement was on the horizon.” 804 F.3d at 392–95.
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cannot substitute for the presence of an imminent, non-speculative irreparable
injury. And we cannot say at this early stage of a state investigation that any
suit that could follow would necessarily violate the Constitution. Cf. Wilson v.
Thompson, 593 F.2d 1375, 1385–88 & nn. 21–22 (5th Cir. 1979) (laying out a
fact-intensive test for whether a prosecution constitutes unconstitutional
retaliation for an exercise of First Amendment rights).
In sum, as underscored by Hood’s apparent need to gather considerable
information before he can determine whether an enforcement action is
warranted, the prospect of one is not sufficiently imminent or defined to justify
an injunction. See O’Shea v. Littleton, 414 U.S. 488, 499 (1974) (explaining
that enjoining a state’s criminal processes is inappropriate absent “a showing
of irreparable injury which is ‘both great and immediate’”); Boyle v. Landry,
401 U.S. 77, 81 (1971) (“[T]he normal course of state criminal prosecutions
cannot be disrupted or blocked on the basis of charges which in the last
analysis amount to nothing more than speculation about the future.”).
IV.
We conclude that the district court erred in granting injunctive relief
because neither the issuance of the non-self-executing administrative
subpoena nor the possibility of some future enforcement action created an
imminent threat of irreparable injury ripe for adjudication. We express no
opinion on the reasonableness of the subpoena or on whether the conduct
discussed in the parties’ briefs could be held actionable consistent with federal
law. The district court’s preliminary injunction is VACATED, and this case is
REMANDED with instructions to dismiss Google’s claims challenging the
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administrative subpoena and its claims seeking injunctive relief against future
enforcement actions. 14
14We express no opinion on Google’s claims for declaratory relief regarding future
enforcement actions, discussion of which is not necessary to decide this interlocutory appeal
under 28 U.S.C. § 1292(a)(1).
23