Injunction Upheld

The United States Court of Appeals for the District of Columbia Circuit sustained an injunction and found venue and jurisdiction were established in the District of Columbia in an opinion authored by Senior Judge Harry Edwards

This case involves a lawsuit filed by Media Matters for America (“Media Matters”), a non-profit media watchdog based in the District of Columbia, and Eric Hananoki, a senior investigative reporter with Media Matters (“Appellees”), against Warren Kenneth Paxton, Jr., in his official capacity as the Attorney General of the State of Texas. Appellees allege that the Texas Office of the Attorney General, which is headed by Paxton, pursued a retaliatory campaign against them because they published an unfavorable article about X.com (“X”), a social media platform owned by Elon Musk. Appellees’ article first appeared online on November 16, 2023, and it reported that corporate advertisements on X appeared adjacent to antisemitic posts, and that Musk had endorsed an antisemitic conspiracy theory. Musk responded that the article was a “‘fraudulent attack on [the] company,’ and he promised to file ‘a thermonuclear lawsuit against Media Matters[.]’” Media Matters for Am. v. Paxton, 732 F. Supp. 3d 1, 8 (D.D.C. 2024) (alterations in original)

After Media Matters sued in Texas federal court it received a broad civil investigative demand from Paxton

Following receipt of the CID, Appellees filed suit against Paxton, in his official capacity, pursuant to 42 U.S.C. § 1983, alleging unlawful retaliation in violation of the First Amendment. Appellees claimed that Paxton’s investigation and the issuance of the CID were in furtherance of an unlawful campaign of retaliation for their coverage of X and Elon Musk. They also alleged that Paxton’s retaliatory actions have caused substantial adverse effects to their newsgathering and reporting activities, particularly with respect to online political extremism. They sought a preliminary injunction to bar enforcement of the CID.

The District Court granted Appellees’ motion for a preliminary injunction and denied Paxton’s motion to dismiss for improper venue and a lack of personal jurisdiction and subject matter jurisdiction.

The court

Tellingly, Paxton has not offered any argument to dispute that the investigation was retaliatory. Nor has he claimed, until this appeal, that a retaliatory investigation is not a cognizable cause of action. See Oral Arg. Tr. at 20-22. Regardless, the District Court found ample evidence of Paxton’s retaliatory motive including: (1) the Office’s press release establishing that Paxton opened the investigation in response to Media Matters’ reporting; (2) his description of Media Maters as a “radical anti-free speech” and “radical left-wing organization”; and (3) his encouragement of other state attorneys general to investigate Media Matters. J.A. 817-18. And Paxton elsewhere concedes that a state attorney general’s subpoena power can be abused to target viewpoints, chill speech, and silence and intimidate organizations. See Br. of Texas at 3-9, J.A. 74-80.

Appellees’ allegation that they are targets of a retaliatory government investigation is a claim regarding concrete harm. And this harm is distinct from any resulting chilling effects. In distinguishing between “good faith” and “bad faith” investigations, this court has explained that “all investigative techniques are subject to abuse and can conceivably be used to oppress citizens and groups,” and that bad faith use of investigative techniques can abridge journalists’ First Amendment rights.

The court found jurisdiction and venue in the District of Columbia

In this case, there is uncontested evidence of Paxton’s retaliatory motive in investigating Media Matters. Although Paxton certainly has an interest in enforcing a Texas law designed to protect Texas consumers, the government may not “act unlawfully even in pursuit of desirable ends.” HuishaHuisha, 27 F.4th at 734 (citations omitted); see also Karem, 960 F.3d at 668 (explaining that the Constitution does not allow the government to prioritize policy goals over the Due Process Clause). And “there is always a strong public interest in the exercise of free speech rights otherwise abridged by an unconstitutional” government action. Pursuing Am.’s Greatness, 831 F.3d at 511 (citation omitted). On the record before us, it is clear that the balance of equities and public interest favor Appellees.

Circuit Judge Henderson concurred in the result

With future injury from such a CID insufficiently ripe and current injuries self-inflicted, a party may lack standing and a case may not be justiciable. But that is not this case. I believe the alleged current impairment of Media Matters’ professional associations and collaborations with third parties can support its standing. Accordingly, I concur in the judgment.

(Mike Frisch)