Appeals Court: Yeah, Of Course Ken Paxton’s Investigation Into Media Matters Was Bullshit

A federal appeals court just delivered yet another reality check to Texas Attorney General Ken Paxton’s transparently retaliatory investigation into Media Matters — and the timing couldn’t be better, given that the FTC just opened its own bullshit investigation into the same organization for the same supposed “crime”: reporting factual information that made Elon Musk sad.

Here’s what happened: Media Matters published a single article documenting that big brand ads were appearing next to neo-Nazi content on ExTwitter. No one disputes this happened (no, not even Elon, though he does complain that they weren’t fully transparent in how they found those ads). But some advertisers paused their spending, which enraged Musk enough that he (egged on by Stephen Miller) convinced state officials in Texas and Missouri to weaponize their offices against Media Matters for the sin of accurate reporting.

This was in addition to Musk’s own filing of lawsuits in multiple countries against Media Matters (not to mention Musk telling advertisers to “go fuck yourself” if they didn’t want to advertise).

It should be pretty blatantly obvious why this is dangerous. When state prosecutors start investigating journalists for publishing inconvenient facts, that’s not protecting the public — it’s textbook government retaliation against speech.

Media Matters went to court to try to stop these investigations, and a district court judge blocked both Texas’ and Missouri’s investigations, calling out how they were obviously unconstitutional retaliatory attacks on Media Matters’ First Amendment protected speech.

Texas appealed to the DC Circuit. On Friday, the DC Circuit upheld the lower court opinion. The opinion was written by the 84-year-old Judge Harry Edwards, who basically says that the district court’s findings that this was an attack on First Amendment speech is obviously correct:

The First Amendment generally “prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech.” Hous. Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022); see, e.g., Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022). As the District Court correctly recognized, Appellees’ complaint is not focused merely on the chilling effects of the actions taken against them. Rather, the heart of Appellees’ claim is that the actions taken by Paxton are justiciable and warrant relief because they involve concrete and felt acts of retaliation against a media company and one of its investigative reporters for having exercised their protected rights of free speech.

The opinion calls out how Paxton tried to pretend his investigation wasn’t retaliatory even as it quite obviously was:

Paxton additionally argues that Appellees’ complaint should be dismissed because it does not raise a justiciable claim. We disagree. Paxton has elided the compelling evidence of the campaign of retaliation against Appellees so as to mischaracterize the action before the court. This case is not simply about a pre-enforcement challenge to a non-self-executing CID, as Paxton would have it. Rather, Appellees have alleged present, concrete, and objective harms (not merely “chilling effects”) resulting from retaliatory government actions that have adversely affected their newsgathering activities and media business operations. Accordingly, Appellees have satisfied the injury-in-fact requirement of standing and may pursue injunctive relief for their First Amendment retaliation claim.

Here’s the most damning part: Judge Edwards points out that Paxton provided no argument at all “to dispute that the investigation was retaliatory.” In other words, a state attorney general couldn’t even be bothered to deny that he was abusing his office to punish journalists. That’s not legal strategy — that’s confession.

Instead of defending the legitimacy of his investigation, Paxton tried to hide behind procedural arguments, pointing to a case about challenging hypothetical future enforcement. But as Edwards makes clear, this isn’t about some potential future harm:

This case is quite different. Appellees in this case are not challenging a general government policy; rather, they are the specific targets of a retaliatory government investigation. Indeed, as noted above, Paxton readily declared that he was targeting Media Matters for investigation in a press release and interviews. Shortly thereafter, he then served the CID on Media Matters as part of the investigation. Thus, there is no hypothetical harm or a threatened future enforcement action because the retaliatory investigation has already begun.

The timing of this ruling is perfect because FTC Chair Andrew Ferguson just launched his own investigation into Media Matters for the exact same “offense” — accurate reporting that upset a billionaire. Ferguson should read this opinion carefully, because the DC Circuit just explained in very clear terms why using government power to punish journalism is unconstitutional.

But, of course, Ferguson probably doesn’t care. The cruelty is the point. These investigations aren’t meant to uncover wrongdoing — they’re designed to drain resources, chill reporting, and send a message to other journalists: step out of line and we’ll weaponize the state against you.

That’s how “free speech” works in the Trump admin.

The DC Circuit just told state prosecutors they can’t get away with this authoritarian bullshit. Now we’ll see if federal agencies got the memo.