Courts Are onto Texas AG Ken Paxton’s ‘Radical Anti-Free Speech’ Agenda*
MAGAs love democracy — until they lose in free and fair elections. Then, not so much. They turn their losses into claims of voter fraud and a lack of election integrity, never acknowledging the absurdity of their policies (such as they are), or their inability to problem solve or address anything of real consequence, their incapacity to govern, their racism and intransigence in white supremacy, or their devotion to despotism and a criminal authoritarian.
The same is true with the First Amendment. It’s all good on Fox, OAN, and Breitbart, until the media turns into the “enemy of the people” — a phrase used by Stalin, Mao, and Trump — when it has the audacity to point out their incompetence, misogyny, brazen lies, criminality, antisemitism and other bigotry, hate-filled rhetoric, or Russian propagandaism.
If anything saves liberal democracy in America — other than trouncing Trump and his isms at the polls — it will be the lower federal courts.
Media Matters for America is a “nonprofit left-leaning watchdog journalism organization. It was founded in 2004 . . . as a counterweight to the conservative Media Research Center. It seeks to spotlight ‘conservative misinformation’ in the U.S. media; its methods include issuing reports and quick responses. Two example initiatives include the ‘Drop Fox’ campaign (2011–2013) that sought to discredit Fox News’ ‘fair and balanced’ claims; and in a [November 16,] 2023 report about X (formerly Twitter) that highlighted antisemitism on the platform.” Media Matters for America (emphasis added).
The November 16, 2023, Media Matters web-based post caught Elon Musk’s attention. It “reported that advertisements for major corporations were appearing next to extremist content on X.com, the social media platform formerly known as Twitter” and “depicted multiple images of the advertisement and posts at issue” including “images of Adolph Hitler alongside advertisements from Apple, Oracle, and IBM, and white nationalist tweets next to advertisements from Xfinity and Bravo.” D.C. Federal District Court Enjoins Paxton Investigation Under First Amendment (“Paxton Injunction”) at 1.
Musk took exception “following moves by several large U.S. companies to halt advertising on the site after being promoted alongside antisemitic content.” Musk claimed the report was a “fraudulent attack” on X and promised to file a “thermonuclear lawsuit against Media Matters.” Elon Musk, under fire, threatens lawsuit against media watchdog.
Ever the master of fraudulently manipulating data, Texas AG Ken Paxton claimed to be “extremely troubled” that Media Matters may have “fraudulently manipulated data on X.com in its reporting.” Paxton announced he was “opening an investigation into whether Media Matters’ reporting about X had violated Texas’ Deceptive Trade Practices Act (“DTPA”).” Paxton Injunction at 1–2. On his official website, Paxton projected: “We are examining the issue closely to ensure that the public has not been deceived by the schemes of radical left-wing organizations who would like nothing more than to limit freedom by reducing participation in the public square.” Attorney General Ken Paxton Opens Investigation into Media Matters for Potential Fraudulent Activity.
Under the authority of the DTPA, Paxton issued a Civil Investigative Demand (“CID”) on Media Matters, seeking “a host of records, including its internal and external communications about Musk’s purchase of X; the company’s CEO, Linda Yaccarino; and the November 16th article. It also sought records about the company’s resources of income and expenditures in Texas.” Paxton Injunction at 2.
Paxton is a posterchild of denialism. His perpetual campaigns to spread disinformation are replete, including his efforts to overturn the 2020 presidential election, with filings in the U.S. Supreme Court stuffed with false and unsupported claims. See Texas Attorney General Ken Paxton Tried to Overturn the Election. Now He’s Going After Roe (“In a golden age of Republican corruption, even a warm body with nothing to lose can do a lot of damage”). Paxton’s extensive history of corruption, inhumanity, bigotry, lawlessness, and infidelity is also no secret. See Ken Paxton Takes His Texas Size Brand of Hate and Christian Nationalism On the Road (by the author).
Misusing the DTPA, Paxton initiated the retaliatory investigation with the intended effect of curtailing and chilling publications of this sort — the ones he didn’t like — in clear violation of the First Amendment. Violations of the Texas DTPA carry potentially serious consequences.
It worked. Paxton’s CID had its intended effect on Media Matters and its reporting.
Media Matters sued Paxton in his official capacity in federal court in Washington D.C., seeking to shut down his retaliatory CID as a violation of the First Amendment and other relief.
On April 12, 2024, United States District Judge Amit P. Mehta issued a 40-page decision granting Media Matters’ motion for preliminary injunction, effectively ending Paxton’s unconstitutional retaliatory investigation. Judge Mehta needed focus on only one of Media Matters’ claims for relief in granting the injunction against Paxton, the claim of First Amendment retaliation. The court found Media Matters had proven the elements of such a claim:
(1) Media Matters had “engaged in conduct protected under the First Amendment.”
(2) Paxton had taken “some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again.” And,
(3) “a causal link” existed “between the exercise of a constitutional right and the adverse action taken against him.”
Paxton Injunction at 35.
On the first element, Judge Mehta explained:
“Plaintiffs’ reporting on matters of public concern are core First Amendment activities. . . (‘The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.’) . . . (‘Speech on matters of public concern is at the heart of the First Amendment’s protection.’)
On the second element, Judge Mehta explained:
“[Paxton’s] investigation of Media Matters is ‘retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]’ [Paxton] makes no contrary argument, so the court treats as conceded the sufficiency of Plaintiffs’ proof as to this element. . . (‘If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.’) . . . (‘[I]f a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.’).
“Still, the court explains why Plaintiffs prevail regardless. ‘[T]he threat of invoking legal sanctions’ is sufficient to deter protected speech. . . . So, too, is the ‘threat of administrative and judicial intrusion into newsgathering and editorial process’ that arises from official process and its possible enforcement. . . . The Texas Code authorizes the Attorney General to seek restraint of future conduct and the imposition of civil penalties of up to $10,000 per violation in a Texas state court if he has ‘reason to believe’ Plaintiffs violated the DTPA. . . . He also can seek to have Plaintiffs held in contempt in Texas state court for not complying with the [investigation]. These potential punitive consequences, as well as possible judicial intervention to enforce the CID, make Plaintiffs’ claim of chilled expression objectively reasonable.
“There is more. ‘The compelled production of a reporter’s resource materials can constitute a significant intrusion . . . [that] may substantially undercut the public policy in favor of the free flow of information to the public[.]’ [Paxton] seeks such records. . . . The compelled disclosure of such ‘research materials poses a serious threat to the vitality of the newsgathering process.’ And, of course, Plaintiffs’ actual self-censorship in response to the announced investigation and the CID ‘provides some evidence of the tendency of [Defendant’s] conduct to chill First Amendment activity.’”
On the third element, Judge Mehta explained:
“[Paxton’s] initial press release establishes that Defendant opened an investigation of Media Matters in response to its protected media activities. Also, Defendant’s description of Media Matters as a ‘radical anti-free speech’ and ‘radical left-wing organization’ and his encouraging of other Attorneys General to look into Media Matters’ reporting is evidence of retaliatory intent.
“Defendant has not responded to Plaintiffs’ causation evidence. Notably, he has not submitted a sworn declaration that explains his reasons for opening the investigation. By remaining silent, he has conceded the requisite causal link.
“‘The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ . . . As discussed above, the investigation [has] caused Plaintiffs to self-censor when making research and publication decisions, adversely affected the relationships between editors and reporters, and restricted communications with sources and journalists. Plaintiffs have amply ‘demonstrate[d] some likelihood of a chilling effect on their rights’ to justify preliminary injunctive relief.”
“[Paxton] asserts that Plaintiffs’ claimed harm is not irreparable because it is ‘selfinflicted,’ as they have not taken the ‘opportunity to avail themselves of a regulatory scheme [under the DTPA] to avoid the very harm for which they seek injunctive relief[.] But that argument fails to recognize that Plaintiffs are already suffering First Amendment harm in the form of chilled protected activities. Plaintiffs’ ‘constitutional injury has already occurred; there is no way for it to avoid that alleged injury by challenging the document request’ in Texas state court.
“[Paxton] also contends that it is ‘factually untrue’ that Media Matters has had its expression chilled, citing television appearances by Media Matters’ President, in which he has defended the organization’s reporting and ‘doubled down’ on the accuracy of the X images contained the November 16 Article. But this argument asks too much of Plaintiffs. They ‘need not show that the government action led them to stop speaking “altogether,”’ only that it would be ‘likely to deter a person of ordinary firmness from the exercise of First Amendment rights.’ Therefore, the fact that Media Matters’ President has publicly defended its work does not mean that Plaintiffs have not suffered irreparable harm.”
Paxton Injunction at 35–40.
See Media Matters statement on winning injunction against Texas AG Ken Paxton in federal court.
R.VanWagoner https://medium.com/@richardvanwagoner publishes. https://richardvanwagoner.medium.com/subscribe
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.