10:06am PT by Eriq Gardner
Will an Investigation Into Twitter's Moderation Decisions Backfire Because the Texas AG Tweets?
When Twitter decided earlier this year to kick Donald Trump off its platform, the decision got under the skin of many of the ex-president's followers. To some right wing critics of the social media company, it represented more evidence that Big Tech should lose its legal shield. Nowhere was the furor stronger than the great state of Texas, whose lawmakers began considering whether to prohibit social media companies from banning users based on certain viewpoints. The constitutionality of that potential action aside, Texas Attorney General Ken Paxton went even further by opening up an investigation into Twitter's policies and procedures related to content moderation. "Twitter/Facebook closing conservative accts," tweeted Paxton. "As AG, I will fight them with all I’ve got."
What followed has the potential to be a very big deal, although perhaps not for the reason most would immediately assume. A lawsuit now playing out may impact other government investigations.
On March 8, Twitter sued Paxton in federal court. The social media giant claims that Paxton is abusing his authority by seeking to harass and intimidate Twitter in retaliation for its exercise of First Amendment rights. Twitter seeks an injunction on the Texas AG from initiating any action to enforce its investigatory document demands. And Twitter's suit is picking up support from others. For example, in a case that's not even a month old, the Reporters Committee for Freedom of the Press and other advocacy organizations have already filed an amicus brief that warns that government efforts to enforce viewpoint neutrality will carry the temptation to compel platforms to carry speech.
That's a real concern, and a reason why Hollywood should be weary of efforts to reform Section 230 of the Communications Decency Act. But the subject isn't the only thing that's notable about Twitter's suit; The present whereabouts of this case is just as interesting and meaningful.
Twitter is suing in a federal court in San Francisco. In other words, home turf for the tech company rather than the conservative heartland.
And what's the stated basis for jurisdiction for a court in the Northern District of California?
Twitter gives two big reasons in its complaint. First, it argues that Paxton directed efforts towards this venue by "transmitting" investigatory demands towards the Northern District of California, where the company’s headquarters are located. Second, Paxton allegedly consented to the Northern District of California by agreeing to the Twitter User Agreement, which spells out where disputes are to be adjudicated.
"The Texas Attorney General’s Office has had authorization and use over a Twitter account since 2009, which has been used to post Tweets as recently as March 6, 2021," states Twitter's complaint. "AG Paxton has separately held a Twitter account since 2009, currently operated under the display name 'Attorney General Ken Paxton,' which he regularly uses to comment on political issues. He used that account to announce that he would 'fight' Twitter with 'all I’ve got' after Twitter permanently suspended President Trump’s account, and the account has been used to post Tweets as recently as March 8, 2021. The CID and retaliatory investigation relate to Twitter’s Terms and Services."
Twitter's strategy is pretty clever, but also potentially significant given a number of legal trends this century. This includes ideological-based forum-shopping, nationwide injunctions, and judges upholding the enforceability of clickwrap agreements (i.e. the dense legalese few every read). Also, just this past week, the Supreme Court extended personal jurisdiction in civil suits. In short, if Twitter's gambit works, other digital companies may attempt something similar when government agencies come hounding.
The issue of jurisdiction will be the very first one for U.S. District Court Judge Maxine Chesney in San Francisco. That's because late Monday, Paxton brought a dismissal motion on the very topic. "Twitter is trying to fit a square peg in a round hole," argues the Texas AG. "This potential document dispute does not belong in court at all. But if it does, it belongs in a Texas court, not here."
Paxton defends the probe by characterizing his office as investigating whether Twitter has "unlawfully misled Texas consumers" while also disputing the notion that communicating with a company across state lines subjects a sovereign state to the jurisdiction of another state's courts.
As for the fact that Paxton is tweeting, the motion (read here) contends that the terms of service do not apply because this dispute is a constitutional one and isn't about "access to and use of [Twitter’s] services.”
If that argument doesn't work, and it very well might not, Paxton also attempts to point out that Twitter's terms of service acknowledge that “[i]f you are a federal, state, or local government entity in the United States using the Services in your official capacity and legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to you.”
Twitter will soon make counterarguments to the judge.