Donald Trump posted 25 Tweets on January 6, 2021. Among them were comments such as, “The steal is in the making in Georgia,” “Democrats scrounging up votes from mystical places again…” and “If Vice President @Mike_Pence comes through for us, we will win the Presidency…” Due to the content of his comments, Twitter decided to ban the then-president's tweets for life. For now, an appellate court has canceled the ban, ruling that the case is not yet “prudentially ripe.”

Writing for a unanimous three-judge panel of the Ninth Circuit Court of Appeals, Circuit Judge Ryan D. Nelson upheld the decision of the United States District Court for the Northern District of California, which dismissed Twitter’s action against Texas Attorney General Ken Paxton. Twitter said the suit by Paxton’s Office (OAG) was “First Amendment retaliation.” In addition to ripeness, the primary issue in the case is whether Twitter misrepresented its content-moderation policies.

Soon after Trump’s tweets to “stop the steal” seemingly agitated crowds to storm the U.S. Capitol, Twitter announced a permanent ban for Trump’s tweets. The Texas OAG served Twitter with a Civil Investigative Demand (CID) that requested various documents related to what it termed the company’s “content moderation decisions.” Twitter then sued Paxton, seeking an injunction from the CID and the investigation’s continuation. It also asked the court to declare the investigation an unconstitutional violation of the First Amendment by the government of Texas.

The OAG told the District Court that “citizen complaints” had prompted it to investigate Twitter’s content-moderation decisions beginning in 2018. Twitter responded that it does not “moderate content based on political viewpoint.” But Paxton responded with tweets of his own that charged Twitter and Facebook with “closing conservative accounts.” He charged that the two social media companies “stood ready/willing to be the left’s Chinese-style thought police. He pledged to “fight them with all I’ve got.”

Paxton claimed that his investigations were not being conducted under the Texas unfair and deceptive trade practices law. Rather, he said, the OAG was looking into whether Twitter “truthfully represents its moderation policies to Texas consumers.” Twitter claimed this was a “pretext for unlawful retaliation.”

Instead of responding to the CID or permitting the case to move forward in Texas state court, Twitter sued Paxton in the Northern District of California for unlawful retaliation of its protected speech. Paxton contested the court’s personal jurisdiction and proper venue and argued that Twitter failed to state a claim, along with a claim of lack of ripeness. Twitter claimed all of its “content moderation decisions are protected speech because of its status as a publisher which gives it a First Amendment right to choose what content to publish. Twitter said its case was ripe because the OAG’s investigation had already “chilled” its exercise of that right.

The district court ruled that it had personal jurisdiction in a proper venue, but it dismissed the case as not ripe and did not discuss whether Twitter properly stated a claim. Twitter appealed and the case moved to the Ninth Circuit.

Justice Nelson began his opinion with an explanation of ripeness, the key issue in the case. He said that along with standing and mootness, it was one of three necessary “justiciability requirements” that were necessary to prevent “premature adjudication” and “entanglement in abstract disagreements.”

He said that “issues must be definite and concrete, not hypothetical or abstract.” The fitness of decisions and hardship to the parties must also be considered. Importantly, claims must not “require further factual development.” Citing precedent and applying the facts of the case, Nelson concluded, “This case is not prudentially ripe.” In addition, the First Amendment “chills” Twitter claimed to have suffered were not yet “fit for judicial decision.” The court said that Twitter could raise its First Amendment claims at any later time if the OAG moves to enforce the CID.

The Ninth Circuit was also troubled by the fact that Texas’s deceptive trade law would be litigated in Federal court in California if the case was allowed to proceed at this time. The type of speech at issue, it said, is as yet undetermined. Was it protected commercial speech or unprotected, misleading speech? Could fact-finding lead to a civil antitrust case? At this stage, it is unknown whether Twitter made any misrepresentations, and “this is the very thing that Paxton claims his OAG is trying to investigate,” Nelson wrote.

The opinion then gave a lengthy rebuttal of Twitter’s claim that OAG’s investigation into its “editorial judgment” could not be investigated. He said that any misleading statements can always be investigated. In reviewing First Amendment challenges to other forms of media, he found precedents that ruled on the basis of obscenity, deceptive speech or “facts that are very different from this case” did not apply.

None focused on ripeness. Here, he repeated, “OAG has not alleged that the law has been broken; it has started an investigation and requested documents.” Nelson concluded, “The issues here are not fit for judicial decision because the facts require further development, and the relative hardships to the parties support delaying review.”

Justices Mark J. Bennett and Patrick J. Bumatay concurred. They and Nelson were appointed to the Ninth Circuit by former President Trump.

Follow Twitter for further developments. There are sure to be many.