Court ‘Reluctantly’ Dismisses Yelp’s Lawsuit Against Texas, Over Ken Paxton’s Threats Regarding Crisis Pregnancy Centers

Texas Attorney General Ken Paxton (who is still indicted and facing a trial later this year) has argued in court that governments both should never, ever try to influence what content social media sites take down, but also that Texas should be able to tell social media websites what content they must keep up and what content must be removed. He's also somewhat infamous for launching investigations" into websites he doesn't like.

And last fall he went after Yelp, because he didn't like the fact that Yelp (correctly) was warning people that crisis pregnancy centers" are not places where you can get accurate information about abortions. A year ago, Paxton had sent a threat letter to Yelp telling them that accurately alerting users to the fact that crisis pregnancy centers don't have much in the way of medical services had to stop.

Yelp actually caved to this thread, and changed the text of its warnings, to just be simpler (and still accurate), saying that Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers."

Paxton still wasn't happy with that, and despite cosplaying as a free speech" defender, Paxton again threatened to investigate and sue Yelp for its free speech. In response, Yelp went to court first, asking the court to make it clear that its speech was protected under the 1st Amendment, and Paxton's threats were an attempt to stifle Yelp's rights. The next day, Paxton sued Yelp himself in Texas state court.

Unfortunately, the court in the Northern District of California has denied Yelp's motion for a preliminary injunction, barring Paxton from continuing his censorial harassment campaign. The court notes that it does so, reluctantly, for technical reasons.

The key issue is what's known as Younger abstention, in which federal courts don't have jurisdiction over cases where there is a case in state court over the same matter. There are exceptions in some circuits, mainly if the prosecution was brought in bad faith, or if it was brought as part of a pattern of harassment.

Yelp, reasonably, argued that those exceptions should apply. Unfortunately, the court says they don't, based on a very, very, very thin thread suggesting Yelp's notices might be slightly misleading, even if Texas admitted in court that they were accurate:

Yelp's allegations of bad faith tell a persuasive story: in the past, the Texas Attorney General prosecuted a CPC under the DTPA for advertising itself under Abortion Information & Services" in the medical clinic section of the Yellow Pages. See Reply 12 (citing Mother & Unborn Baby Care of N. Tex., Inc. v. State, 749 S.W.2d 533 (Tex. App. 1988)). Now, Texas is pursuing Yelp under the same statute for the First Notice, which describes the lack of medical services at CPCs. It is pursuing Yelp even though it conceded that the Second Notice is accurate, even though it agreed at the hearing on the preliminary injunction that the First notice is literally true," and even though no other attorney general that initially complained about the First Notice has sued Yelp. See id. 12-13. Indeed, this is the first case Paxton pursued after surviving impeachment, which-by Yelp's account-was an apparent attempt to score points with his base of voters." Id. at 13. And he brought the case one day after Yelp filed its case in this Court to protect its First Amendment rights.

While persuasive, Yelp's story does not escape Younger's pull. For one, Paxton's lawsuit is not facially meritless." Gibson, 522 F. Supp. 3d at 818. To be sure, [a]bsent evidence that the defendant's statement was false, a DTPA action for misrepresentation cannot survive." Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 480 (Tex. 1995); see also Top Rank, Inc. v. Gutierrez, 236 F. Supp. 2d 637, 659 (W.D. Tex. 2001) ([A] statement must be false to be actionable." (citing Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980))). And Paxton's counsel conceded at the hearing that the First Notice is literally true." But he also walked this concession back, equivocating about whether the First Notice was true or false. See ECF No. 40, at 8 ([The First Notice is] true in the abstract, but when you append it to a specific [CPC] . . . it's going to be literally false."). Moreover, Paxton is suing Yelp for, among other things, disparaging the goods, services, or business of another by providing a false or misleading representation of facts"-arguing that First Notice falsely or misleadingly disparaged CPCs. Mot. Ex. 11, at 10 (quoting citing Tex. Bus. Prof. Code 17.46(b)(c)). Whether the First Notice is true or misleading under this provision is open to interpretation: Yelp's own exhibits show that 26% of CPCs have a registered nurse, that 16% have a registered doctor, and that 66% provide limited medical services. See Sieff Decl., Ex. 7, at 760; id. Ex. 19, at 2, 5.

While it appears that Paxton conducted a thin investigation into the matter-it seems that the state corresponded with only one or two CPCs-he did not fail to conduct any investigation at all, as Yelp originally supposed. See Reply 12; Reply Mot. Dismiss, Decl. Ryan Hanlan, ECF No. 37-1. Though he brought the case after Yelp filed in this Court, he had advised Yelp that he might sue one week before Yelp filed. And Yelp has not pointed to concrete evidence of Paxton's desire to rebound from his near-impeachment or to curry favor among Texas voters. Nor has Yelp pointed to a history of harassment from Paxton similar to the history of disciplinary charges in Cullen. See 18 F.3d at 99-104.

The short version is that, while the court is suspicious of Paxton's motives, Yelp didn't provide enough evidence to show that the case was vindictive:

To be clear, the Court is not convinced that Paxton acted entirely in good faith in bringing this case against Yelp; still, Yelp has not provided enough concrete evidence of his subjective motivations to prove otherwise.

And, because of that, the case gets dismissed reluctantly."

Either way, I'm still waiting for those people who insist that Texas supports free speech to explain how to square that with the state's Attorney General literally threatening and then suing Yelp over its speech, which the state has conceded was truthful.