The First Amendment doesn’t matter to Ken Paxton
Caitlin Vogus
December 20, 2023
Texas attorney general Ken Paxton claims to defend the First Amendment, but he’s repeatedly abused consumer protection law to go after reporting and free speech. Ken Paxton by Gage Skidmore is licensed under CC BY-SA 3.0.
Billionaire bullies filing SLAPP lawsuits against reporting they don’t like is, unfortunately, nothing new. But it’s less common for state officials to add fuel to the anti-free speech fire by retaliating against the same reporting, even if it has nothing to do with them.
That’s what makes the recent legal attacks on Media Matters over its investigation into the advertising practices of X, formerly known as Twitter, unusual and all the more troubling. Journalists and news outlets should take note of how state attorney generals are targeting Media Matters, and how Media Matters is fighting back — because traditional journalists and news outlets may be next.
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You may have heard about the investigation by Media Matters showing that X is still allowing ads to be placed alongside racist and hateful content, causing even more advertisers to flee the site. In response, X’s thin-skinned billionaire owner Elon Musk somehow overcame his “free speech absolutism” to file a meritless lawsuit against Media Matters for its reporting. He’s promised to file more lawsuits against the group in other courts around the world.
That kind of retaliatory civil lawsuit meant to chill reporting is bad enough. But on the same day, Texas Attorney General Ken Paxton also announced an “investigation” into Media Matters, claiming, with no evidence or support, that it may have engaged in fraud under Texas consumer protection law.
Days later, the Missouri attorney general launched his own investigation, based on Missouri’s consumer protection law. Speaking of free speech hypocrites, that’s the same Missouri AG who’s suing the Biden administration for alleged censorship.
Media Matters is fighting back. Last week, it sued Paxton, arguing that his investigation is a thinly veiled attempt to intimidate and silence it.
Media Matters says that the investigation and Paxton’s overbroad demands for information and documents — including Media Matters’ communications with sources — retaliate against it for its reporting and violate the First Amendment, not to mention the shield laws in Washington, D.C., and Maryland, where Media Matters and the author of its investigation are based.
It’s clear from the timing of Paxton’s announcement and his demands for particular documents and information that he’s investigating Media Matters because of its reporting about X. What’s less clear is the many reasons why Media Matters’ investigation so outraged Paxton and sparked his Texas-sized tantrum.
One obvious answer is that any controversy involving X is the perfect fodder for the content moderation culture wars. Conservatives repeatedly claim (despite evidence to the contrary) that they’re being “censored” online, and they argue that liberal big tech companies, left-leaning civil society organizations like Media Matters, and Democrats are to blame.
The argument that social media and the federal government are discriminating against conservative viewpoints is the basis for the First Amendment lawsuit seeking to block the Biden administration from communicating with social media companies about content moderation policies. One of the plaintiffs in that lawsuit is Missouri, which, conveniently, is quick to rely on the First Amendment when it suits its needs.
Texas Republicans have also leaned into the issue of conservative censorship on social media, as has Paxton, who criticized Media Matters as a “radical anti-free speech organization” when announcing the investigation.
Only slightly less obviously, Paxton’s investigation also conveniently targets an outlet that’s repeatedly criticized him, including his stance on gender-affirming care, his attempts to undermine the 2020 election, and more. While Paxton’s investigation has most directly chilled Media Matters’ reporting about X, by threatening the organization and its sources, Paxton may be betting he can silence other reporting, too, including about himself.
But perhaps most worryingly for the free press, Paxton’s investigation into Media Matters may help him create another legal tool to retaliate against more traditional news outlets and journalists, too.
By pushing to expand the bounds of the Texas Deceptive Trade Practices Act, Paxton is setting the stage to go after news outlets for “defrauding” the public by publishing news or making statements about their reporting or editorial practices that he believes are false.
Not only is it dangerous to give a government official this power, it’s also unnecessary. Defamation law — which includes important protections for freedom of speech — already provides a remedy for people damaged by false reporting.
It’s not the first time Paxton has abused the Texas Deceptive Trade Practices Act to retaliate against social media companies. Ironically, he started by opening an investigation into X, when it was still called Twitter and before Musk owned it, for allegedly defrauding the public by moderating content.
He also sued Yelp for “deceptive trade practices” for daring to label the crisis pregnancy centers on its platform. Free speech and free press organizations pointed out that these efforts violate the First Amendment and that the same legal theories could be weaponized against the press.
Now, Paxton is using the same law to investigate Media Matters. You can quibble over whether Media Matters is a news outlet; it’s often described as a media watchdog or activist group (and, in fact, labels itself “a progressive research and information center”). But no matter what you call it, Media Matters’ investigation into X was undoubtedly an act of journalism.
It investigated X using the same techniques used by other journalists, and the resulting report was newsworthy. Many other news organizations have reported on X’s abysmal record when it comes to placing ads next to hate speech and other abhorrent content.
Still, some may think Paxton’s investigation into Media Matters isn’t as big a deal as investigating a “real” news outlet. But that’s a mistake. The investigation against Media Matters — just like the previous investigation against Twitter and lawsuit against Yelp — tests the waters and lets authorities see just how they can stretch the law to undermine the First Amendment. Some are already experimenting with other ways to use laws seemingly unrelated to the press to attack news organizations.
Musk, unfortunately, has plenty of money to fund his ridiculous SLAPP campaigns without Paxton's help. But Texas has plenty of problems of its own. Texans don't need their AG spending their tax dollars to carry water for anti-press billionaires.