[00:00:00] Speaker 02: Kicks number 24-7059. [00:00:03] Speaker 02: Media matters for America and Eric Hananoki versus Warren Kenneth Baxter Jr. [00:00:09] Speaker 02: in his official capacity as attorney general of the state of Texas appellants. [00:00:13] Speaker 02: Ms. [00:00:13] Speaker 02: Pettit for the appellant, Ms. [00:00:15] Speaker 02: Branch for the appellees. [00:00:17] Speaker 02: Ms. [00:00:18] Speaker 02: Pettit, good morning. [00:00:23] Speaker 04: Thank you, Judge Henderson, and may it please the court [00:00:26] Speaker 04: The First Amendment conveys neither the license to commit fraud nor the inalienable right to shop for the most favorable forum in which to litigate whether one has committed fraud. [00:00:37] Speaker 04: The easiest way for this court to correct the district court's erroneous conclusion to the contrary is to join its sister circuits in holding that a pre-enforcement challenge to a non-self-enforcing administrative subpoena is not cognizable in federal court. [00:00:52] Speaker 04: In the alternative, it should hold that this federal court [00:00:55] Speaker 04: is not the appropriate location to adjudicate the validity of an effort by the Attorney General of Texas to investigate potential violations of Texas law in Texas, an effort which is in any event entirely valid. [00:01:09] Speaker 03: Ms. [00:01:09] Speaker 03: Pettit, what in your view is the actual possible violation of Texas law here? [00:01:14] Speaker 04: The actual possible violation, and I would point this court to 17.46B8, is commercial disparagement of the good or service of another. [00:01:23] Speaker 04: In this instance, there is reason to think that Media Matters made factual representations about what is now exited previously, Twitter's brand protection technology that were factually inaccurate and possibly harmed advertisers and consumers in Texas. [00:01:40] Speaker 03: So is it your position that [00:01:44] Speaker 03: Attorney General Paxton can issue a CID, which is fairly intrusive. [00:01:49] Speaker 03: It asks for a lot of information to any news outlet in the United States that publishes a story that he believes contains something that might be misleading. [00:02:00] Speaker 04: Not at all, Your Honor. [00:02:01] Speaker 04: In this particular instance, and I would point this court to page 472 of the Joint Appendix where [00:02:07] Speaker 04: Mr. I believe it's pronounced Carsoni, the CEO of Media Matters was responding to the UCID and discussed how this is a factual representation about X's brand protection technology. [00:02:20] Speaker 04: As they put it, no matter how you slice it, they are misrepresenting what they're doing. [00:02:26] Speaker 03: Does that answer my question? [00:02:27] Speaker 03: So whatever the nature of the misrepresentation, does Attorney General Paxton believe [00:02:33] Speaker 03: that he can issue a CID to any news outlet in the country because somebody in Texas might read the article. [00:02:40] Speaker 03: If that article contains something that he thinks is misleading about a business. [00:02:45] Speaker 04: That is not sufficient under Texas law to constitute commercial disparagement. [00:02:49] Speaker 04: He does have the ability to issue a CID if he thinks that there is reason to believe that the news outlet has violated the Texas Deceptive Trade Practices Act. [00:02:59] Speaker 04: But it's not just that they think that it's unfair or misleading. [00:03:02] Speaker 04: There has to be a connection to a good or service in Texas. [00:03:06] Speaker 04: And here advertisers are exes primary customer. [00:03:09] Speaker 04: And those are, and with representations about that brand technology is a violation, potentially a violation of the DPA. [00:03:16] Speaker 03: So anything that he thinks is misleading that could affect advertising income, he could issue a CID to any news outlet in the entire country. [00:03:26] Speaker 04: Yes, your honor, if it has the sufficient nexus to Texas, but that's one of the things and it's important to point this out that the CID in this particular instance and this goes and the federal courts in the ex lawsuit found a similar that it affects advertisers in Texas. [00:03:42] Speaker 04: And that is what one of the issues that the CID is actually attempting to investigate, is whether there is an adequate nexus to Texas. [00:03:48] Speaker 04: And if upon investigation we conclude there's not, we're not going to bring an enforcement action. [00:03:53] Speaker 04: But this court has recognized, and I point this court to Reporters Committee for the Freedom of the Press on page 1051, that investigations of that type are necessary to protect the liberties that we enjoy, because there has to be some room for that, otherwise [00:04:09] Speaker 04: the news outlet would be claiming a exemption to generally applicable law, which the Supreme Court has repeatedly recognized they do not have. [00:04:16] Speaker 03: So, Ms. [00:04:17] Speaker 03: Pettit, the attorney general, Attorney General Paxman filed an amicus brief in the Northern District of Texas in the case of Exxon Mobil Corporation versus Maura Tracy Healy. [00:04:28] Speaker 03: And that was about a CID issued by the attorney general of Massachusetts. [00:04:33] Speaker 03: And I was just looking at the table of contents of this brief, and it says, Attorneys General should act impartially. [00:04:40] Speaker 03: Attorneys General should not employ legal power to tip the scales in a policy debate. [00:04:44] Speaker 03: Attorneys General shouldn't target critics. [00:04:47] Speaker 03: Attorneys General shouldn't abuse of subpoena power. [00:04:50] Speaker 03: And politicized investigations undermine public confidence. [00:04:54] Speaker 03: I'm just wondering if you think any of these principles could be viewed as applying in this case. [00:05:01] Speaker 04: Your honor, I would point to the specific content beyond the table of contents of that brief and that and I point the court in particular to the discussion in that brief. [00:05:09] Speaker 04: about how the CID in question wasn't just aimed at disseminating accurate information. [00:05:15] Speaker 04: It was aimed at changing conduct outside of the courtroom. [00:05:19] Speaker 04: That is different from what is happening here. [00:05:21] Speaker 04: We are simply investigating whether there has been a misrepresentation. [00:05:25] Speaker 04: Media Matters is perfectly able and we have no problem with them saying anything they want, when doing anything they want in the public policy space, as long as they are not making material misrepresentations a fact [00:05:39] Speaker 04: that would affect Texas consumers. [00:05:41] Speaker 03: It also says here under targeting critics at J875, the First Amendment stands as a bulwark against government action designed to suppress ideas or information or to manipulate the public debate through coercion rather than persuasion. [00:05:55] Speaker 03: You don't think that applies in this case? [00:05:57] Speaker 04: No, Your Honor, I do not. [00:05:58] Speaker 04: I think that in this case, the attorney general has it has issued and this goes to the question about whether this is a litigating the merits is even appropriate. [00:06:06] Speaker 04: has issued simply an investigative request asking for information about whether these factual statements are true. [00:06:12] Speaker 04: If they are, they are not the basis of an enforcement action. [00:06:16] Speaker 04: And I would point this court in that this goes to an important thing that gets conflated in a lot of the briefing here. [00:06:21] Speaker 04: The difference between the injury that Media Matters has asserted and the mechanism by which they have asserted it has occurred, specifically a chill to their reporting activities [00:06:33] Speaker 04: is the injury that is caused by the mere issuance of the CID. [00:06:38] Speaker 04: And the reason I separate those out is on page 11 of the Laird against Tatum decision, the court noted that the mere existence of a chill is insufficient without a regulatory, prescriptive, or compulsory government act. [00:06:52] Speaker 04: That statement was made 10 years after, I think actually eight. [00:06:56] Speaker 04: The act is the issuance of the CID? [00:06:57] Speaker 04: No, the act is not that, because as Reisman held eight years, I'm sorry I said 10, eight years [00:07:02] Speaker 04: for the Laird decision that a non-self-enforcing administrative subpoena like this CID is not compulsory. [00:07:10] Speaker 03: Reisman didn't involve an alleged chill of First Amendment activity. [00:07:14] Speaker 04: No, but Laird did. [00:07:15] Speaker 04: And Laird was after Reisman. [00:07:16] Speaker 04: And Reisman, well, actually, I would like to tweak that just a bit. [00:07:20] Speaker 04: It did not involve an alleged chill under the First Amendment. [00:07:23] Speaker 04: It did involve an alleged chill of communication under the Sixth Amendment. [00:07:27] Speaker 04: because it involved communications with the lawyer. [00:07:30] Speaker 04: And as this court's sister circuits have held in the intervening decades, that previous ruling about the compulsory nature of a CID applies in First Amendment cases. [00:07:45] Speaker 03: In particular, I point this court to Google against to... So why aren't those cases distinguishable? [00:07:51] Speaker 03: Because in this case, [00:07:53] Speaker 03: The assertion is the CID was issued, that's the Government Act, and it has chilled the First Amendment activity of Media Matters. [00:08:00] Speaker 03: And there are affidavits that attest to how they have had to alter their practices because of the CID. [00:08:08] Speaker 04: Because the chill by itself is not sufficient unless there is compulsion. [00:08:12] Speaker 04: And as Reisman recognized, as Balfour recognized, as Anheuser-Busch recognized, there's no compulsion with a non-self-enforcing CID. [00:08:20] Speaker 04: And I'd also point that might also allege some of this concern in Rayburg against Polk, which is a case that's on the merits. [00:08:27] Speaker 04: It's not on rightness. [00:08:28] Speaker 03: It just seems to me that the allegations in this case are a little bit different from the sources that you're citing, because what they're saying is, [00:08:37] Speaker 03: Even though there hasn't been an action to enforce the CID, the fact that it's there and it could be enforced is affecting their ability to do their work the way they used to do it. [00:08:50] Speaker 03: And that just seems different from what you're citing. [00:08:53] Speaker 04: Except in Laird, it was the same situation where it was the existence of a government investigation and the court found that was insufficient to create a cognizable injury. [00:09:02] Speaker 04: I'd also point this court to page 51 of the younger opinion [00:09:05] Speaker 04: which says that the mere existence of a chill or page 46, the anxiety associated with an investigation is not itself enough to enjoin a otherwise lawful state of action. [00:09:15] Speaker 00: What do you, what are you resting? [00:09:18] Speaker 00: Rightness. [00:09:19] Speaker 00: We all need to say to cause of action under the first amendment standing. [00:09:23] Speaker 00: I'm not. [00:09:24] Speaker 04: All of the above, Your Honor. [00:09:25] Speaker 04: There are numerous doctrinal problems with this case. [00:09:29] Speaker 04: Our primary argument is Reisman, because that is the cleanest under this court's sister circuit case law. [00:09:34] Speaker 04: But there's also personal jurisdiction. [00:09:36] Speaker 04: Including the Fifth Circuit and Grewall? [00:09:39] Speaker 04: Grewall was a personal jurisdiction case, not a ripeness case. [00:09:43] Speaker 00: But it subsumed these same questions. [00:09:46] Speaker 00: I don't believe- If it wasn't ripe, the court should have knocked it out. [00:09:49] Speaker 00: Fifth Circuit didn't. [00:09:51] Speaker 04: In that particular case, it wasn't a request for information. [00:09:54] Speaker 04: It was a cease and desist letter, which is important because the request for information is what this court said every citizen is subject to in Reporters Commission against AT&T. [00:10:04] Speaker 04: Here we have not concluded that there has been any violation of law, and we may yet conclude there has not been. [00:10:11] Speaker 04: We have simply asked for information because the news outlet is not exempt by itself from the DTPA. [00:10:17] Speaker 04: That is consistent with the Supreme Court's decisions in Brandsburg, in Niki, the news outlets are required to follow the law just like everybody else. [00:10:29] Speaker 03: In terms of the- Isn't that a fishing expedition, what you've just described, that you don't know whether there's even a connection to Texas, but you wanna issue the CID to figure out if there is. [00:10:39] Speaker 04: know your honor we have we think that there is a good faith basis to think there is a connection to texas and we have issued a c i d in what first three requests are all about is there a connection to texas if media matters provides information to suggest that there's not then we wouldn't bring an enforcement action but the enforcement action this goes to judge edward's question about whether or not the greewell case was was right by itself in the fifth circuit and [00:11:06] Speaker 04: and other contexts that are related, they have said that a threat to bring an enforcement action is where you have the cognizable injury, which is compulsion or constraint. [00:11:15] Speaker 04: That's consistent with the layer decision that we were discussing earlier. [00:11:18] Speaker 04: What we don't have here is compulsion. [00:11:20] Speaker 04: They are not going to be penalized for not complying with this CID unless and until there is a court order requiring them to do so. [00:11:28] Speaker 04: And they can raise all of these concerns in a state court proceeding, assuming one is ever brought. [00:11:34] Speaker 04: And that's what makes this case not right. [00:11:36] Speaker 04: It is entirely possible that an enforcement action will never be brought because it will be determined that this is not a useful usage. [00:11:45] Speaker 00: Well, the problem for you is if there are chilling effects and if that's a cognizable cause of action, your rightness thing falls apart. [00:11:54] Speaker 00: It's present. [00:11:55] Speaker 00: It's available. [00:11:57] Speaker 00: It's something that they can litigate now if there are chilling effects. [00:12:01] Speaker 04: Your honor, that would be a departure from every one of the cases that this that this sister circuits of this court have not at all. [00:12:08] Speaker 00: Twitter, for example, which looks facially good for you is distinguishable because the court there said there were no. [00:12:14] Speaker 00: There were no chilling effects. [00:12:16] Speaker 00: There are chilling effects here and there's something to proceed. [00:12:20] Speaker 00: The court in that case was saying the case would have gone forward had there been standing to pursue chilling effects. [00:12:26] Speaker 00: There were no chilling effects. [00:12:28] Speaker 00: Now here the question is, [00:12:29] Speaker 00: They're claiming there are chilling effects. [00:12:31] Speaker 00: And it looks like the complaint is different here than it was in Twitter. [00:12:37] Speaker 04: Your honor, it's no different. [00:12:38] Speaker 04: In fact, I litigated Twitter. [00:12:39] Speaker 04: And I would point this court to page 475 of the Twitter opinion, where the court talks about the affidavits and the allegations in that case. [00:12:46] Speaker 04: And my friend on the other side has suggested there were no affidavits in Twitter. [00:12:50] Speaker 04: That's simply factually wrong. [00:12:51] Speaker 04: And it said, for example, page 475, it is already [00:12:55] Speaker 04: that Twitter has put in forth, it is already being forced to weigh the consequences of a burdensome investigation every time it contemplates taking action. [00:13:03] Speaker 04: That's remarkably similar to Mr. DiMierro's statement on page 172 of the joint appendix, saying that stories that would normally be published from our usual vetting process, including stories about media matter coverage, are, and I quote, receiving greater internal scrutiny and risk calculation. [00:13:19] Speaker 04: It's the same allegations. [00:13:21] Speaker 04: And it's the same allegations that could be made [00:13:23] Speaker 04: any investigation of a fraudulent claim. [00:13:26] Speaker 04: So if this court, or a claim of fraud, if this court were to hold in media matters favor, it would depart from Twitter, from Rayburg against Polk, from all of the cases that are cited in our briefs. [00:13:39] Speaker 00: It doesn't depart from Twitter. [00:13:39] Speaker 00: It depends upon how you look at the First Amendment claims. [00:13:42] Speaker 00: And Reisman doesn't help you at all because they didn't decide on rightness. [00:13:47] Speaker 00: I'm not sure what Reisman says. [00:13:50] Speaker 00: I don't think any of you are either. [00:13:52] Speaker 04: Reisman says there was no cognizable that there was no compulsion and therefore no cognizable injury and your sister circuits have either dealt with that under the concept of ripeness which we think is the better way to look at it because what Reisman was talking about is whether or not there were contingencies that have not yet come to force and in modern jurisprudence that is a ripeness question. [00:14:12] Speaker 04: But a number of cases, including the Rayburg ones that I've mentioned a number of times, have found it in whether or not there's a cause of action. [00:14:18] Speaker 04: Either way, media matters loses. [00:14:21] Speaker 04: But even if you disagree with me on all of that, there's still a personal jurisdiction problem here about trying to enforce this, trying to litigate against the Texas attorney general. [00:14:31] Speaker 04: Because as Burger King noted on page 7475, [00:14:35] Speaker 04: The foreseeability of an injury in this jurisdiction is insufficient to establish personal jurisdiction as a matter of due process. [00:14:43] Speaker 03: Something about the Texas business code. [00:14:47] Speaker 03: This hasn't really been addressed in the briefs or by the district court, but I looked at it and section 17.61 G says that the recipient of a demand can file a petition to set aside the demand in the district court in the county where the parties reside. [00:15:03] Speaker 04: Yes, your honor. [00:15:04] Speaker 04: If the parties do not reside in Texas, they can do it in Travis County. [00:15:11] Speaker 03: But why isn't this the county where media matters resides? [00:15:15] Speaker 03: Why can't under the plain meaning of this provision, why can't they bring this case in district court in DC? [00:15:23] Speaker 04: Because in red and larger context, that is a county within the state of Texas and the District of Columbia. [00:15:29] Speaker 03: Where does it say that? [00:15:30] Speaker 03: It doesn't say that anywhere. [00:15:31] Speaker 04: It says that in, and I would have to, I'd be happy to send you a letter to give you the precise citation, but that particular question has been litigated in another case that, and it was read to be in larger context in the county because the DTPA only discusses Texas. [00:15:47] Speaker 04: And Texas- Is that because it anticipates that it will be enforced in Texas? [00:15:52] Speaker 04: It anticipates that it will be enforced only as to conduct within Texas. [00:15:55] Speaker 04: It does specifically provide, and I would point this court [00:15:59] Speaker 04: To 17.61 D3 that there can be service outside of Texas by mail and under those circumstances it still has to be a violation within Texas, but it does not. [00:16:11] Speaker 04: But it does not have to be a violation. [00:16:14] Speaker 04: that were people that are located in Texas, precisely because we have a national and an international economy and things that happen outside Texas can be effective, can affect a state within the state. [00:16:26] Speaker 03: And that is why I understand it just seems that this provision seems to contemplate if the attorney general chooses to try to enforce the Texas law. [00:16:35] Speaker 03: You can challenge it in the county where the parties reside, which seems fair. [00:16:39] Speaker 04: in the larger context of the statute, and I'll see if I have it at the table, and if I will, I'll give it to you during rebuttal, but the venue provision in the larger context of the DTPA provides specifically for venue in Travis County if you don't reside in a county in Texas. [00:16:56] Speaker 04: And so as a result, red in the larger context of the county in Texas is what that's referring to. [00:17:02] Speaker 00: So you're saying if your argument, your principal argument is this is not ripe, [00:17:08] Speaker 00: Your principal claim should be that the district court should dismiss without prejudice. [00:17:14] Speaker 00: And if and when the Texas attorney general attempts to move and do anything with the CID, then the case will be resumed. [00:17:23] Speaker 00: That's your argument. [00:17:24] Speaker 04: That is the question of whether it can be resumed at that particular point becomes a different question under Younger, because as Younger unequivocally stated, the longstanding policy of Congress, with very few exceptions, [00:17:36] Speaker 04: is that issues like this are litigated in state court. [00:17:39] Speaker 04: And so at that point, there may be a different issue, but the rightness issue will likely have passed. [00:17:45] Speaker 04: We still would have the personal jurisdiction issue because both the only connection- Well, I'm taking that off the table for this question. [00:17:54] Speaker 00: I understand your arguments about personal jurisdiction. [00:17:57] Speaker 00: I'm just focusing on your rightness. [00:18:01] Speaker 00: If the district court should have dismissed for want of ripeness, then what you're saying, that's got to be without prejudice. [00:18:08] Speaker 00: Yes, Your Honor. [00:18:08] Speaker 00: Until what happens? [00:18:10] Speaker 04: Until there is an effort to enforce, at which point there is a compulsion. [00:18:15] Speaker 04: Then the question will there will still be other arguments that are related, some of which also relate to rice to rice man as this court as as your honor noted that has dealt with a number of different issues, including whether there is a cause of action to for a retaliatory investigation, which we respectfully submit that there is not. [00:18:33] Speaker 04: But the rightness argument at that point will have been dealt with. [00:18:36] Speaker 04: But we agree that this should have been dismissed without prejudice so that Media Matters can raise all of these issues in state court in response to- This is a Section 1983 claim. [00:18:46] Speaker 03: I know it's not, the cause of action doesn't seem to match what you're talking about at the podium. [00:18:52] Speaker 03: Because clearly, federal courts have jurisdiction to look at Section 1983 claims. [00:18:56] Speaker 03: And that's what this is. [00:18:57] Speaker 04: Yes, Your Honor. [00:18:58] Speaker 04: But the basis, and this goes back to the Rayburg [00:19:01] Speaker 04: and Archer against Chisholm and a number of other cases that we cite in our brief, that a retaliatory investigation that has not ripened into, and this goes to why the two issues are related, has not ripened into an actual enforcement action is not cognizable. [00:19:14] Speaker 04: That's not the cause of action that the plaintiffs are bringing. [00:19:18] Speaker 03: Like they don't have to comport their complaint to what you think it should be. [00:19:21] Speaker 03: Their complaint is that their first amendment rights are being violated by [00:19:26] Speaker 04: this investigation which is retaliatory and chills their first amendment speech which seems to be quintessentially something that a federal court can look at no your honor not under archer against chism not under layered against tatum and not under rayburg this court would be departing from all of those authorities to find an investigation by itself is the source of it is the source of [00:19:49] Speaker 04: a 1983 claim, all of these claims are being litigated under section 1983. [00:19:53] Speaker 04: The question is whether that is a theory that is cognizable for retaliation because retaliation involves a number of elements. [00:20:01] Speaker 04: And the courts that are examining that retaliation have said that the investigation by itself is not an act that will, and I believe the phraseology is chill. [00:20:10] Speaker 03: I don't think that you argued that retaliation, first amendment retaliatory investigations are not cognizable. [00:20:17] Speaker 03: That's something you forfeited. [00:20:19] Speaker 04: That is something that they have asserted that we have forfeited. [00:20:22] Speaker 04: And in response, we have cited back to this court its standard for what is preservation, which is that we have raised the issue that this is not a claim on the merits. [00:20:32] Speaker 04: And one reason that it is not a claim on the merits or a valid claim on the merits is that it is not a cognizable theory under section 1983. [00:20:42] Speaker 00: Going back to- You didn't raise the retaliatory investigation below. [00:20:46] Speaker 00: We didn't object to that. [00:20:48] Speaker 04: We did, Your Honor. [00:20:49] Speaker 00: We raised in our recitation. [00:20:52] Speaker 00: I'll go look at it. [00:20:53] Speaker 00: I didn't find it the first time. [00:20:55] Speaker 04: We raised that they had not shown a likelihood of success on the merits. [00:20:59] Speaker 00: Did you say there is no such cause of action with respect to retaliatory investigation? [00:21:04] Speaker 00: I don't remember that. [00:21:05] Speaker 00: That's a pretty easy argument to make, if that's what you intended to say. [00:21:09] Speaker 04: We did not phrase it in that exact way. [00:21:12] Speaker 04: I believe that we phrased it in the way that they had not raised a, and I believe the phraseology, I don't remember the exact quote from our brief, was that they have not raised a basis [00:21:24] Speaker 04: that would chill an ordinary speaker. [00:21:26] Speaker 04: And that this is an elaboration or a clarification on what we were saying, because it goes to the same element. [00:21:31] Speaker 00: We expect more certainly to avoid forfeiture. [00:21:36] Speaker 04: I respectfully disagree, your honor, but I take your point. [00:21:38] Speaker 04: And the question then, even if that's wrong, have they shown, and this we did raise is national, whether they've shown an actual chill and under national treasury employees union, they have to on page 1255 and they haven't. [00:21:52] Speaker 04: in part because this would not be a reasonable, something that would cause a reasonable person in their circumstance to have changed their behavior, precisely because it's not a, for the reasons that it would not be cognizable, but also because their own conduct, and I would point this court to pages about 420 of the joint appendix, shows they weren't in fact chilled. [00:22:10] Speaker 03: And so as a result, even if it were- I just wanna see how that preserves the argument that there's no such thing as retaliatory First Amendment investigation. [00:22:18] Speaker 04: It preserves the argument that they have not raised a retaliatory, that they have not raised a reason that a person in a similar circumstance would have chilled their speech. [00:22:28] Speaker 04: That's a species of the same argument. [00:22:31] Speaker 04: But if the court disagrees, then it still has all of the other problems, including that they have not shown a chill or retaliatory animus for that matter. [00:22:39] Speaker 04: But we'd never even get to that because they haven't shown a cognizable harm. [00:22:44] Speaker 04: Going back to Laird Against Tatum, which is from 1972, [00:22:48] Speaker 04: The Supreme Court said that he showed. [00:22:50] Speaker 04: What you don't have to great then even assuming the court disagrees on that, there's still the personal jurisdiction argument. [00:22:56] Speaker 04: I see that I'm way over time. [00:22:58] Speaker 04: You said that you understood you understood our arguments. [00:23:00] Speaker 04: I'm happy to answer any questions on personal jurisdiction, but we strongly suggest that even if the court disagrees with me on the meaning of Reisman, that this is not the appropriate form in which to be litigating this case. [00:23:14] Speaker 02: Thank you. [00:23:16] Speaker 02: We'll give you a couple of minutes and reply. [00:23:18] Speaker 02: Ms. [00:23:18] Speaker 02: Branch. [00:23:36] Speaker 01: Good morning. [00:23:37] Speaker 01: May it please the court. [00:23:38] Speaker 01: Aria Branch on behalf of the appellees. [00:23:41] Speaker 01: This is a unique case with very extreme facts. [00:23:44] Speaker 01: It involves the extraordinary overreach by a retaliatory attorney general who came to DC to harm a DC-based media organization by serving a sweeping demand for their internal and external documents because he didn't like their speech. [00:24:03] Speaker 01: And there's a reason why Attorney General Paxton had to come to DC to serve media matters. [00:24:08] Speaker 01: That's because media matters has no presence in Texas. [00:24:11] Speaker 01: It doesn't have an office there. [00:24:13] Speaker 01: It doesn't have a registered agent there. [00:24:15] Speaker 01: It doesn't engage in trader commerce at all. [00:24:18] Speaker 01: And it certainly doesn't engage in trader commerce in Texas. [00:24:22] Speaker 01: The district court's opinion in joining Paxton's [00:24:26] Speaker 01: Demand was well reasoned and largely based on facts that are not disputed tax and did not dispute in the district court that plaintiffs are chilled plaintiff submitted numerous affidavits documenting that chill how the demand is currently and presently affecting both [00:24:44] Speaker 01: the stories they chose to publish, their editorial process, and how they had in fact actually withheld articles relating to X and Musk because of the chill of the demand that was hanging over their heads. [00:24:58] Speaker 01: It's also not disputed that Paxton served the CID because of journalism that was published by Media Matters. [00:25:06] Speaker 01: When Paxton commenced his investigation, he called Media Matters a radical left wing [00:25:12] Speaker 01: an anti-free speech organization, and he encouraged other attorney generals to investigate media matters along with him. [00:25:19] Speaker 01: Paxton now argues that despite the fact that he came to DC and inflicted harm on a DC-based organization, he can't be subject to suit here because his investigation was launched in his official capacity. [00:25:33] Speaker 01: That argument is unsupported. [00:25:35] Speaker 01: It's not supported by Ex parte Young, which says that when a state official allegedly violates the federal constitution, he is stripped of his official and representative character and subject to suit in his person for the consequences of his individual conduct. [00:25:54] Speaker 01: His argument would also lead to absurd consequences for the jurisdiction of DC courts. [00:26:02] Speaker 01: And Attorney General Paxton just argued that their primary argument in this case is that plaintiff's lawsuit is not ripe because Paxton has not yet taken steps to enforce. [00:26:15] Speaker 01: That argument is not supported by Reisman. [00:26:17] Speaker 01: Reisman, as the Ninth Circuit said in the Twitter v. Paxton case, is not a case about ripeness at all. [00:26:25] Speaker 01: And it's not a case about the First Amendment. [00:26:29] Speaker 01: Media Matters and Eric Kananoki, the plaintiff's endless lawsuit, have shown [00:26:33] Speaker 01: and the affidavits that they submitted to the district court that they were currently and presently being injured. [00:26:39] Speaker 01: They could not wait for Paxton to decide to enforce the demand and have the CID hanging over every email they send, every editorial decision they make, every article they decide to publish, like the sword of Damocles. [00:26:55] Speaker 01: They're entitled, because they're suffering a present and first amendment chill, to seek [00:27:00] Speaker 01: relief and they sought relief in their home jurisdiction in federal court in DC because Paxton came to DC and served the demand via his agent and he inflicted harm on media matters in DC. [00:27:14] Speaker 00: Why are the claims here different from the claims in Twitter? [00:27:16] Speaker 00: Twitter is essentially saying, I mean, the threat [00:27:20] Speaker 00: When you look at this case, there are a lot of cases like Laird, like Celine, which we issued here a year ago, where you can look at this and say, it's too soon. [00:27:30] Speaker 00: There's nothing that has happened. [00:27:34] Speaker 00: There's a possibility of something happened. [00:27:36] Speaker 00: It's happening. [00:27:37] Speaker 00: But it hasn't happened yet. [00:27:39] Speaker 00: And so whether you go a Reisman way, or whether you go Laird way, or whether you go traditional rightness, normally or often, we would say, it has to await. [00:27:49] Speaker 00: different moment. [00:27:50] Speaker 00: The way you're trying to get around it is to say, we have a viable claim. [00:27:54] Speaker 00: Forget all the rest of it, what might happen. [00:27:56] Speaker 00: We have a viable claim because we've been chilled. [00:27:59] Speaker 00: We've been injured. [00:28:01] Speaker 00: So we're in play and we want an injunction against any further injury. [00:28:06] Speaker 00: That's correct. [00:28:08] Speaker 00: What cases support that approach? [00:28:11] Speaker 01: That's correct, Your Honor. [00:28:12] Speaker 01: And I think the difference- What cases support that approach? [00:28:15] Speaker 01: The Twitter v. Paxton case supports that approach, although in Twitter. [00:28:21] Speaker 01: But Twitter goes the other way. [00:28:23] Speaker 01: Twitter goes the other way, but it makes very clear that a chill, and I quote from the opinion, a chill, a First Amendment chill, can itself be the harm. [00:28:32] Speaker 01: And it's very clear that had the court found. [00:28:35] Speaker 00: Do they cite anything? [00:28:39] Speaker 00: Does Twitter cite anything? [00:28:40] Speaker 00: In other words, is there any case? [00:28:42] Speaker 00: Twitter talks about the possibility only to knock it down. [00:28:45] Speaker 00: Is there any case that either Twitter or anybody else can point me to that says, yeah, that's a viable notion, the potential chilling effects? [00:28:56] Speaker 00: I mean, that's the way you will survive. [00:28:58] Speaker 00: That's the only way, in my view, you can survive all of these other concerns about this is too soon, all of those doctrines. [00:29:05] Speaker 00: Whichever ones we go to, they're a problem for you, because nothing is happening. [00:29:11] Speaker 00: But your way around that is to say, something happened already. [00:29:15] Speaker 00: And we're showing the likelihood of a continuation of that happening and therefore we need relief now. [00:29:21] Speaker 00: All I'm asking is, is there anything other than what is rejection of that to support that approach? [00:29:29] Speaker 01: So I would point, Your Honor, to the Cooksie v. Futrell case from the Fourth Circuit and the Edgar v. Haynes case also from the Fourth Circuit. [00:29:38] Speaker 01: Both of those cases recognize that a First Amendment chill is cognizable when a present and ongoing injury is being suffered. [00:29:48] Speaker 01: And I also would point, Your Honor, to Graywall, which is from the Fifth Circuit, Paxton's Home Circuit, where the New Jersey Attorney General sent a cease and desist letter to a Texas-based company. [00:29:59] Speaker 01: And the Fifth Circuit both asserted jurisdiction over Graywall and found that the First Amendment injury that was being suffered as a result of the cease and desist letter was actionable. [00:30:13] Speaker 01: And so the bottom line here is that we have asserted a claim, a First Amendment retaliation claim. [00:30:18] Speaker 01: We have met the elements of that claim. [00:30:21] Speaker 01: And the merits question here is whether the district court actually abused its discretion in finding that we satisfy the elements of the First Amendment retaliation claim. [00:30:32] Speaker 01: We've shown that we are engaged in First Amendment protected conduct. [00:30:36] Speaker 01: Media Matters is a news organization which is [00:30:38] Speaker 01: the hallmark of First Amendment protected speech. [00:30:42] Speaker 01: We have shown that Paxton issued the demand in response to an article that Media Matters published and that he did so without any basis, without any investigation. [00:30:53] Speaker 01: He issued the demand a day after X sued Media Matters in the Northern District of Texas [00:31:00] Speaker 01: And he did so solely he's admitted that he brought that lawsuit solely based on the allegations made in that in that lawsuit. [00:31:08] Speaker 00: And finally, we've shown what's the threat of the demand. [00:31:10] Speaker 00: There it is. [00:31:11] Speaker 00: I mean, that's the way they're trying to approach it. [00:31:13] Speaker 00: And it seems to me you have to answer that. [00:31:15] Speaker 00: There's nothing to it. [00:31:16] Speaker 00: There it is. [00:31:16] Speaker 00: And nothing can happen to you and less. [00:31:19] Speaker 00: Something happens and they haven't made it happen. [00:31:22] Speaker 01: The threat of the demand is that it is an ongoing demand for all of Media Matters documents related to journalism. [00:31:31] Speaker 00: You can't use it simply under whatever laws in place. [00:31:35] Speaker 00: We're not responding. [00:31:38] Speaker 01: We could, and then there would be extreme consequences to that. [00:31:41] Speaker 01: Under Texas law, media matters could be held in contempt for failing to respond. [00:31:47] Speaker 00: Is there anything to suggest that that's likely? [00:31:50] Speaker 00: Do you have any reasonable basis for assuming that that is a real threat? [00:31:57] Speaker 00: I understand the argument about there is a possibility, but what I'm trying to understand is, because otherwise it becomes self-serving. [00:32:05] Speaker 00: You say, well, we're threatened. [00:32:06] Speaker 00: We take this to mean bad things. [00:32:09] Speaker 00: And therefore, we are threatened. [00:32:11] Speaker 00: And you have to believe us when we say we're threatened. [00:32:13] Speaker 00: Well, there are cases that say, as you know, Celine, we dealt with that. [00:32:17] Speaker 00: Say that's not enough. [00:32:18] Speaker 00: Just because you feel threatened doesn't mean that the law recognizes you as such. [00:32:25] Speaker 00: What moves the needle on this and puts it in a different category? [00:32:30] Speaker 01: Well, I think the question on whether or not you feel threatened is, is it reasonable that an objective person would feel threatened based on the CID that's been issued? [00:32:43] Speaker 01: And the district court answered that question, yes. [00:32:45] Speaker 01: And I would point out, Your Honor, that Paxton did not challenge the chill allegations below. [00:32:52] Speaker 01: He waived that. [00:32:53] Speaker 01: And the district court found that is another issue. [00:32:56] Speaker 00: There's no doubt. [00:32:56] Speaker 00: And they don't have a good answer, at least not that I've heard yet on that one. [00:33:00] Speaker 01: Correct, Your Honor. [00:33:01] Speaker 01: Today, they seem to be challenging the chill allegations that were made in the district court. [00:33:06] Speaker 01: But below, they did not. [00:33:08] Speaker 01: And the question on the merits, again, is whether or not the district court abused its discretion in finding that we were likely to proceed on the merits. [00:33:15] Speaker 01: And based on the record that he had before him at the time, I think that answer is clearly yes. [00:33:20] Speaker 00: Why is this case more compelling on the chilling effects than the court thought the Twitter case was? [00:33:27] Speaker 00: Because in Twitter, it's the same theory, but the court rejects it. [00:33:30] Speaker 00: And they said what was being asserted there was not enough. [00:33:34] Speaker 00: What distinguishes the complaint here from the complaint that was being reviewed in Twitter? [00:33:41] Speaker 01: Here, we have put forth affidavits that show from the COO of Media Matters, from the individual reporter who authored [00:33:50] Speaker 01: the November 16th article that is at issue here, and also from his editor, that Media Matters, the CID is hanging over Media Matters like the sword of Damocles, that every single email document they create could be subject to being turned over to the state of Texas to further an investigation against them. [00:34:12] Speaker 01: Media Matters is a journalism entity. [00:34:14] Speaker 01: It has to be able to do its work, and it can't do that with the CID hanging in the air. [00:34:19] Speaker 01: And I would point your honor to the comments that I think Judge Pan raised earlier that Paxson raised when he submitted the amicus brief in the Exxon Mobil case where he specifically said that a CID can have a chilling impact and that it can affect First Amendment rights. [00:34:37] Speaker 01: And when a CID is hanging in the air, it does have an impact on [00:34:41] Speaker 01: the targets of that CID. [00:34:43] Speaker 01: And so I think the district court found that the declarations and the affidavits that were sworn to and submitted in this case were specific and that they were particularized and that they put forward evidence of chill that was uncontested in the district court. [00:35:02] Speaker 01: And he had before him a clear record of chill. [00:35:05] Speaker 01: And that's what makes this case different from Twitter v. Paxton, from Laird v. Tatum, [00:35:10] Speaker 01: from many of the other cases that Attorney General Paxton cites, in those cases, they simply did not, the plaintiffs simply did not present evidence of a present injury to First Amendment protected speech. [00:35:23] Speaker 01: I would just turn to the personal jurisdiction argument just briefly, unless your honors have questions on it. [00:35:31] Speaker 01: But we think it is very clear that Paxton is a person under the DC long arm statute to hold otherwise would create [00:35:39] Speaker 01: absurd consequences as the district court found for civil jurisdiction in DC. [00:35:45] Speaker 01: DC courts regularly exercise jurisdiction over federal officials who have their home offices in the district and other state officials when they come to the district and cause harm. [00:35:57] Speaker 01: The long arm statute is satisfied, packs in both transacted business in the District of Columbia by sending a process server here [00:36:04] Speaker 01: which commenced the investigation and resulted in harm to media matters in Eric Hananoki. [00:36:11] Speaker 01: And he also, we also satisfy a three of the long arm statute because he committed an act in the district by serving the CID here. [00:36:22] Speaker 01: And he, that act gave rise to our injury, which is the chill of our First Amendment rights. [00:36:29] Speaker 01: In terms of due process, I think it is extraordinarily clear that Paxton committed himself to a course of dealing in the district by serving the CID here. [00:36:39] Speaker 01: The CID on the face of the front page of it contemplates that Paxton would come to the District of Columbia to inspect and make copies of any documents that Media Matters had that is responsive to the CID. [00:36:52] Speaker 01: And so the district court properly found that due process is satisfied because he both sent a process server here [00:36:59] Speaker 01: He committed himself to engaging in a course of dealing, and it was absolutely foreseeable that he could be held into court here as a result of that, and also because he inflicted tortious injury on my client here in the District of Columbia. [00:37:13] Speaker 01: Unless Your Honors have further questions, I would ask that you affirm the District Court's decision in joining Paxton's investigation. [00:37:23] Speaker 01: Thank you. [00:37:23] Speaker 01: Thank you. [00:37:26] Speaker 02: Why don't you take two minutes? [00:37:29] Speaker 04: Starting with whether we are challenging the allegations of chill here, we are not as a factual matter because of the prospect, because of the posture of this case, we are challenging whether it is legally sufficient. [00:37:42] Speaker 04: Legally sufficient. [00:37:44] Speaker 04: I would point this court to United Presbyterian, page 1378. [00:37:48] Speaker 04: Then Judge Scalia noted that the chilling effect is cited in the cases upon which they rely as the reason why the government's action is invalid, not whether [00:37:58] Speaker 04: plaintiffs have standing to challenge it. [00:37:59] Speaker 04: That is because the chill, and that principle goes all the way through most recently in Clapper. [00:38:06] Speaker 04: Absent some sort of compulsory act by the government, that chill is self-inflicted. [00:38:10] Speaker 04: Here, there is no compulsory act for a lot of the reasons that Judge Edwards was describing, because there are a lot of cases, and my friend on the other side called this extraordinary. [00:38:20] Speaker 04: It's not. [00:38:21] Speaker 04: It's a request for information. [00:38:23] Speaker 04: from an entity accused of committing fraud and their arguments because the media entities have no greater ability to commit fraud than anybody else would apply to any entity that is claiming that receives a fraud request this court would be basically saying that it would be a chill to their speech in order to allow to investigate and that is inconsistent with decades of precedent pointing then [00:38:46] Speaker 04: to the question of whether they are under some sort of sort of Damocles. [00:38:50] Speaker 04: They are not, as the Twitter court noted on page 1176, enforcement is not a rubber stamp in Texas and they can only be held in contempt if they fail to comply with the government, the court order thereafter. [00:39:01] Speaker 04: Changing just to a moment for personal jurisdiction because my friend has suggested that this would create absurd results relating to federal officers. [00:39:11] Speaker 04: That's inaccurate, and I would point this court to 28 USC 1391E, which creates nationwide service of process and nationwide venue for federal officials acting in their official capacity. [00:39:26] Speaker 04: So that's simply irrelevant. [00:39:28] Speaker 04: And turning to their arguments on the long arm statute, they point to the fact that we hired a process server. [00:39:39] Speaker 04: but their own authority on page 1096, this shea at page 1066 equates a courier like a process server with a piece of mail and mail is insufficient. [00:39:51] Speaker 04: And because it is an act outside of the jurisdiction that may or may not have effects in the jurisdiction. [00:39:58] Speaker 04: That is effectively what they are asserting here, not transaction, not a jurisdiction based on a transaction. [00:40:04] Speaker 04: And they have problems with that because the only way that they can establish that the attorney general has pervasive contacts with the District of Columbia is actually to cite the speaking engagements of his subordinates, including, for example, former Solicitor General Stone or Mr. Bosch. [00:40:20] Speaker 04: The problem with that is they can only tag the attorney general with those if they admit that this is, in fact, a suit against the office of the attorney general, which they can't because this court unequivocally said in Ferrara [00:40:34] Speaker 04: claim against a state agency is a claim against the state, which falls outside the personal jurisdiction of this court. [00:40:41] Speaker 04: There are no further questions. [00:40:42] Speaker 00: Are you doubting the authorities that the other side is citing supporting the notion that chilling effects is a viable notion? [00:40:50] Speaker 00: Indeed, as they say, Twitter itself says. [00:40:54] Speaker 00: And the difference here is that the district court judge here made findings [00:40:59] Speaker 00: owed some respect and enough in those findings to support a claim of chilling effects. [00:41:05] Speaker 00: Are you doubting this? [00:41:06] Speaker 00: She cited at least three circuits. [00:41:08] Speaker 04: The circuits that she cited, the only case that comes close to this one is Twitter. [00:41:11] Speaker 04: We admit that that is their best authority. [00:41:13] Speaker 04: We suggest that to the extent that Twitter found that an investigation by itself is sufficient to create that type of chill and therefore a cognizable injury, it's inconsistent with this court's ruling and Reporters Committee, as well as numerous Supreme Court cases. [00:41:27] Speaker 04: But even under Twitter, [00:41:29] Speaker 04: because the evidence that that was relied upon is very, very similar to what happened here. [00:41:34] Speaker 04: Even under Twitter, as your honor noted, this case should have been dismissed. [00:41:41] Speaker 04: There are no further questions. [00:41:42] Speaker 04: We respectfully request you first. [00:41:45] Speaker 04: Thank you.