• by Wendy Davis  @wendyndavis, July 11, 2024

Texas Attorney General Ken Paxton violated the First Amendment by demanding information from the watchdog Media Matters for America after it issued a negative report about brand safety on X, the organization argues in new court papers.

Paxton's “retaliatory” subpoena for information “has inflicted irreparable harm on Media Matters and will continue to do so absent injunctive relief,” the watchdog says in a brief filed Wednesday with the D.C. Circuit Court of Appeals.

Media Matters is asking the appellate court to uphold an order issued earlier this year by U.S. District Court Judge Amit Mehta in Washington, D.C., who enjoined Paxton from attempting to enforce the subpoena. Mehta ruled that Paxton likely violated Media Matter's free speech rights by issuing the subpoena in retaliation for the group's report about ads on X, formerly Twitter.

The battle between Media Matters and X dates to November, when Paxton said he was investigating whether Media Matters violated the Texas Deceptive Trade Practices Ad -- an anti-fraud law.

Paxton's office stated at the time that he was “extremely troubled” by allegations that Media Matters -- which he described as a “radical left-wing” organization -- “fraudulently manipulated” X's data.

He announced the investigation the same day X sued Media Matters for reporting that ads for brands including Apple, Bravo, IBM and Oracle were being placed next to pro-Nazi posts on the platform. X alleged that Media Matters “manipulated” X's algorithms in order to “bypass safeguards and create images of X’s largest advertisers’ paid posts adjacent to racist, incendiary content.”

X also said the ad placements highlighted in Media Matters' report were “inorganic” and rare.

Media Matters sought an injunction preventing Paxton from attempting to enforce a subpoena that demanded a host of documents -- including all internal and external communications regarding Elon Musk's purchase of X, all communications regarding the November report on brand safety, and communications with Apple, IBM, Bravo and other companies named in that report.

Mehta granted Media Matters' request in April, writing in a 40-page opinion that Media Matters had proven its reporting activities were protected by the First Amendment, and that Paxton took action aimed at chilling the group's speech.

Mehta wrote that Paxton's investigation and subpoena caused MediaMatters “to self-censor when making research and publication decisions, adversely affected the relationships between editors and reporters, and restricted communications with sources and journalists.”

Paxton recently urged the D.C. Circuit Court to lift the injunction for a host of reasons. Among others, Paxton said that Media Matters' challenge to the subpoena was premature because the group sued before Texas attempted to enforce the subpoena.

Paxton argued that the subpoena's issuance “is legally no different than if the Attorney General had simply announced that he would be monitoring developments in X’s related litigation to determine if Media Matters had violated the [Deceptive Trade Practices Ad.]”

Media Matters counters in its new papers that it's challenge is timely, noting Mehta's finding that the group had already curtailed activity protected by the First Amendment due to the subpoena.

Mehta “rightly found that Media Matters had already suffered substantial hardship,” the organization wrote, adding that Mehta specifically concluded that Media Matters had experienced a “profound chilling impact” due to Paxton's subpoena.